Published March 2002

Employers face high cost
of not knowing worker’s past conduct

By Carolyn Logue
Guest Editorial

Would the operator of a day-care center knowingly hire someone whose past conduct at another job would pose a threat to the safety of the children?

Would you hire someone to keep your books who had stolen from his previous employer?

Hardly likely.

The state of Washington, however, prevents employers from knowing vital information about prospective and current employees by increasing the risk of lawsuits for employers giving references. Because of this increased risk, the prospective employee’s previous employer is not talking, for good reason — the cost of a lawsuit could put them out of business, even if they are telling the truth.

Betty Neighbors, who runs a recruiting and staffing firm in Everett and Seattle, recently wrote to a senate committee about a colleague of hers who was concerned that his accounting manager was missing time due to court dates.

“Further investigation into the reason behind the court dates revealed this accounting manager had been fired from her last job for forging company checks and illegal use of company credit cards,” Neighbors wrote in a letter to the Washington Senate’s Labor, Commerce and Financial Institutions Committee. “My colleague admittedly took a risk when hiring this person, when attempts to obtain references produced only verification of dates of employment from the previous employer. How she wishes the previous employer would have divulged this employee’s criminal behavior and subsequent termination!”

In fact, the current state law has bullied employers into providing just an employee’s date of hire and date of termination.

In testimony before the same committee, Sue Hahn, owner of Cascade Diesel and Truck in North Bend, detailed what she has termed “The Anatomy of a Bad Hire.” Hahn informed lawmakers about the mill of bad employees who get passed on and on, costing small-business owners lost revenues due to theft and other malfeasance.

Both small-business women support Senate Bill 5969 that would shed some necessary light on a worker’s past conduct and align Washington with similar common-sense laws in 25 other states.

A similar measure to SB 5969 passed the Washington Legislature in 1998, but was vetoed by the governor at the behest of the trial lawyer’s lobby, which knows a prime cash cow for its members when it sees one.

If it passes into law this time, SB 5969 would create a “black line” test to eliminate gray areas surrounding when a job reference is immune from liability. In this way, employers can be assured that what they say, as long as it pertains to the employee’s job performance, conduct or work-related information, is immune from liability.

This immunity would apply only if the information is given at the specific request of a prospective employer or employment agency. The employer disclosing the information would be assumed to be acting in good faith and be immune from liability unless there is a show of clear and convincing evidence that the employer was giving information that was knowingly false or deliberately misleading.

In other words, employers can’t get away with willful nastiness and lying, and employees can’t get away with stealing or worse.

Must it take some graphic display of a heinous crime on the 11 o’clock news by an employee who gave previous employers hints of what was to come before lawmakers get a grip on the problem? SB 5969 is a solution.

Carolyn Logue is Washington State Director for the National Federation of Independent Business. She can be reached at 360-786-8675 or through the NFIB’s Web site, www.nfib.org.

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