Question:
After an investigation, we fired one of our employees for threatening and stalking two co-workers. He now demands a positive letter of reference, which I’m writing. I tried to appease him with an innocuous letter that gave the dates on which he’d worked here along with what his job duties were. He refused to accept this, and frankly he scares me.
Can you give me any pointers for writing a reference letter that sounds positive but not too positive?
Answer:
Yes: Don’t.
If you write a falsely positive or even neutral reference, you can be sued for “negligent referral,” defined as “the failure of an employer to disclose complete and factual information about a former or current employee to another employer.”
True story
When Allstate Insurance Co. learned one of their employees, Paul Calden, made death threats to co-workers and carried a gun to work in a briefcase, Allstate fired him and then gave Calden a neutral reference letter stating he’d voluntarily resigned because restructuring eliminated his position.
Based on that reference and Calden’s relevant work experience, Fireman’s Fund hired him. When Fireman’s Fund later fired Calden, he shot the five supervisors, killing three of them, and the victims’ family members sued Allstate for not disclosing Calden’s true work history. Allstate ultimately settled the case for an undisclosed amount of money.
Protect your employees
Next, make sure you’ve installed protection for your employees and yourself. Your former employee threatened two of his co-workers and now makes demands. He may not be done with you, your company, or his former co-workers. If you fear violence, consider hiring security personnel, installing security measures and training your staff to handle a violent intruder. Additionally, contact the police department and find out what help they can offer your company.
Taking the sting out
In several cases we’ve helped our clients terminate problem employees when the firing manager feared potential violence. In all cases, we’ve negotiated a severance package in exchange for a waiver. The benefit of this is that money allowed the terminated employee to leave with dignity, removing much of the employee’s animus over the firing. Have you considered letting a neutral third party explain why you can’t give a reference but can provide a financial “cushion” while he finds a new job?
Finally, if you do receive a reference call, you may find it helpful to know that laws in many states give employers immunity against claims for defamation, libel and slander if they act in good faith and stick to the facts when giving a reference.
© 2020, Lynne Curry
Lynne Curry is the author of “Beating the Workplace Bully” (AMACOM, 2016, https://amzn.to/30V5JO6) and “Solutions”, https://amzn.to/2GYlnAN (both books are rated 4.8 out of 5 stars on Amazon.com). Send your questions to her at lynnewriter10@gmail.com, visit her @ www.communicationworks.net or follow her on twitter @lynnecurry10.
A creative response–severance package offer while the employee looks for a new job, but no letter. However, not all businesses are in the position to give severance packages. Where I am, many businesses seem to operate on a shoestring, barely making it, perhaps even barely legal. I can think of an issue here. What about other employees who are laid off or fired–will they too expect to get severance packages, and could it become a discrimination issue if they don’t?
Suz, thank you as always for a great comment and an on-target question. You’re right, many companies have a tough choice when they’re barely hanging on, and have to choose between the protective value of a negotiated severance with a problem employee they asked to leave and the importance to keeping funds for necessary expenses and salaries of continuing, accountable employees. And yes, a business reason has to be stated whenever an employer gives a benefit to one employee and not another, thought workplace safety could be a legitimate business reason. Then the employer will need to show that it’s not a pretext and to do without making statements that backfire OR that make other challenging employees think about how to act out to receive negotiated severance payments. So it’s a complex area and while we’ve often resolved it satisfactorily, I agree it takes a lot of thought.
This is a tough and frightening situation. The severance seems to reward bad behavior, and I wonder if he has done this before. I would like to hear what law enforcement suggests. Did the stalked and threatened employees report it to the police when it was happening? Can the man be charged? Arrested? The suggestions to beef up security and training in the workplace are great, but what about the safety employer and other employees after hours?
Sue, you’re correct not to reward bad behavior; however, in a dangerous situation an employer developing a strategy to have the angry worker exit stage right with the sense “he’s won” and dignity can be a good one. I frequently teach negotiations and have found it helpful to use what Chris Voss wrote when discussing hostage takers, to have them feel “they’re right” so they don’t shoot a hostage.