Sunday, June 27, 2010

Negligent Hiring of an Employee Rationally Determined to be Potentially Violent and Homicidal

If an employee was lawfully terminated by reason of business necessity on the basis of an assessment made by a psychiatrist that he was potentially violent and posed a negligence risk in the workplace, does that employee have a legal duty to advise prospective employers in the future about that termination decision?

If the highest legal officer in the state makes a quasi-judicial determination that an employee was lawfully terminated by reason of business necessity on the basis of an assessment made by a psychiatrist that the employee was potentially violent and posed a negligence risk in the workplace and that coworkers reasonably feared that the employee might have been armed and extremely dangerous, does that employee have a legal  duty to advise prospective employers in the future about  that court-affirmed determination?

The answer is arguably yes.  The employee has a duty of care to a prospective employer to advise that employer that a state supreme court had affirmed that at a previous place of employment fears that the employee might have been violent and capable of armed, mass homicide were genuine, worthy of credence, and not the product of discriminatory animus.

"An employer is often unaware of an employee's past problems. However, the courts usually conclude that a reasonable investigation would call for affirmative statements which attest to an applicant's honesty, trustworthiness, and reliability, and that background checks should disclose relevant information that might not otherwise be uncovered."

If a worker does not disclose to a prospective employer that a state supreme court had affirmed that a prior employer had reasonable and credible fears that the worker might have been violent, armed and extremely dangerous, the worker's failure to disclose will at the very least raise substantial concerns about the worker's honesty, trustworthiness, and reliability even if such information does not establish that the worker is in fact a negligence risk.

Query: Does an employee's duty of care, arising under the law of negligence, to advise a prospective employer of reasonable past fears that he might  have posed a negligence risk at a prior place of employment render the employee for all practical purposes permanently unemployable by reason of business necessity?

If the answer is yes, have the employee's civil rights -- specifically, his constitutionally-protected right to seek employment -- been violated in a situation in which the assessing psychiatrist did not personally examine the employee, persuasive non-record evidence tends to prove that the employer had fabricated evidence that it based its termination decision on the advice of mental health professionals, and record evidence tends to prove that the employee was a victim of a form of subtle job harassment known as "mobbing" in which unfounded fears that an employee may become violent are prominent and typical.


Gary Freedman said...

The District of Columbia needs anti-mobbing legislation, in my opinion, and this blog is my vehicle to advocate for that societal need. Maybe I should contact David Catania about this. Mr. Catania is a former Akin Gump attorney who serves on the D.C. Council.

Now, why would the U.S. Marshal Service have a problem with my advocating for anti-mobbing legislation by means of my blog? One wonders.

Canada has enacted anti-mobbing legislation. The Supreme Court of Italy has recently decided a case that makes an employer legally liable to a victim of workplace mobbing.

My blog is on the cutting edge of an important issue of employment law.

Gary Freedman said...

Workplace fears or rumors that an employee is potentially violent is itself evidence of mobbing by coworkers according to Kenneth Westhues.

Sociologist Kenneth Westhues devised the following list of mobbing indicators, with indicator number 12 probably being the most important:

By standard criteria of job performance, the target is at least average, probably above average.

Rumors and gossip circulate about the target’s misdeeds: “Did you hear what she did last week?”

The target is not invited to meetings or voted onto committees, is excluded or excludes self.

Collective focus on a critical incident that “shows what kind of man he really is”.

Shared conviction that the target needs some kind of formal punishment, “to be taught a lesson”.

Unusual timing of the decision to punish, e. g., apart from the annual performance review.

Emotion-laden, defamatory rhetoric about the target in oral and written communications.

Formal expressions of collective negative sentiment toward the target, e. g. a vote of censure, signatures on a petition, meeting to discuss what to do about the target.

High value on secrecy, confidentiality, and collegial solidarity among the mobbers.

Loss of diversity of argument, so that it becomes dangerous to “speak up for” or defend the target.

The adding up of the target’s real or imagined venial sins to make a mortal sin that cries for action.

The target is seen as personally abhorrent, with no redeeming qualities; stigmatizing, exclusionary labels are applied.

Disregard of established procedures, as mobbers take matters into their own hands.

Resistance to independent, outside review of sanctions imposed on the target.

Outraged response to any appeals for outside help the target may make.

Mobbers’ fear of violence from target, target’s fear of violence from mobbers, or both.

Query: Were Akin Gump's pleadings a rational appraisal of a workplace problem -- or did they constitute "written defamatory rhetoric" that was simply a further act of mobbing by firm management?