In the days since a man killed two former colleagues from a Virginia television station on a live broadcast, the question has been raised: How much did WDBJ-TV know about Vester Flanagan’s past work history before he was hired?
The answer: not much.
In this case, the end result was tragic, but local employment law experts say it’s not unusual for companies to know little about their new hires.
For starters, criminal background checks only flag people who have criminal records, which many do not. Relying on job references can be tricky, too. Many companies will not provide much information.
“The reason is they can be sued for defamation,” said Colin Walker, a director at Fairfield and Woods and board member of the . “A lot of employers are taking the position that we’re not going to comment on any former employees other than the position held, the dates of employment and sometimes the pay they received.”
Flanagan shot and killed WDBJ-TV reporter Alison Parker and cameraman Adam Ward on Wednesday in Moneta, Va. He later died of a self-inflicted gunshot wound.
He had been fired from the station in 2013 after working there for less than a year after conflicts with co-workers. Several months before that,
he was ordered to undergo employee counseling for creating a “hostile work environment.”
After the shooting, the station’s former news director said he didn’t know about Flanagan’s history before he was hired and had received positive references.
at least 15 years earlier at WTWC-TV in Tallahassee, Fla. A former station official there said Flanagan had physical confrontations with co-workers and “was threatening people.”
Under normal circumstances, a future employer doing due diligence requests a reference, and the former employer might respond with “name, rank and serial number” and they move on, said Mark Meaney, executive director of the Center for Education on Social Responsibility at the CU-Boulder Leeds School of Business.
An ethical conflict can emerge in cases where there has been violent or sexual misconduct by the person in question.
“On the one hand, employers, from my vantage point, have a duty to tell the truth — we should tell the truth and exercise a duty of care, for the interest of safe workplaces,” Meaney said. “On the other, there’s defamation or retaliation. If there’s any chance that what the employer could tell is less than what should be told, that the employer would be acting under false pretenses, if they said things that weren’t true, that’s where defamation could happen.”
Getting companies to open up would likely require giving the employers some kind of protection or exemption from liability, assuming they provide truthful information, Walker said.
“The employer doesn’t just want to win the lawsuit at the end of the day,” he said. “They don’t want to get sued.”
Having a good written policy in place and regular, documented performance reviews can help avoid problems, Meaney said.
In some states, including California, employers can be held liable for negligent referral if they do not disclose relevant information, particularly having to do with known violent or sexually deviant behavior.
“If at the beginning, the employee signed a form that states, ‘This is our policy. If someone contacts us in writing, we will provide them with the following kinds of information,’ that consent can be used,” Meaney said.
Even with precautions in place, criminal behavior is hard to predict, said Diane Vaksdal Smith, an employment law attorney with Burg Simpson in Englewood.
“If you have an employee who gets terminated and can’t find a job and sits around stewing and watching TV and drinking beer and they grab a gun and shoot someone, there’s no way to predict that,” she said.
The Associated Press contributed to this report.
