By John V. Berry, Esq. www.berrylegal.com
Virginia Delegate Chris Hurst has introduced new legislation that he hopes will reduce incidents of workplace violence in the Commonwealth of Virginia. Specifically, Delegate Hurt has introduced legislation which would grant civil immunity to employers who share information about violent acts or threats made by current or former employees to potential employers or law enforcement.
The Proposed Legislation
The proposed law would grant civil immunity to employers who take such information into consideration when decide whether or not to hire an applicant. Under the legislation, an applicant for a position could not sue a current, former or prospective employer for sharing a candidate’s previous violent or threatening behavior into account in making a hiring decision.
Virginia House Bill 1457
Delegate Hurst’s House Bill (HB 1457) would allow hiring managers to openly discuss job candidates with their current, prospective or former employers. The text of the proposed law reads as follows:
- 8.01-226.10:1. Immunity of employers and potential employers; reports of violent behavior.
. . .
Any employer who, in good faith with reasonable cause, makes or causes to be made a voluntary report about violent or threatened violent behavior, by an employee or former employee to a potential employer of such employee, or to any law-enforcement officer or agency, shall be immune from civil liability for making such report, provided that the employer is not acting in bad faith. An employer shall be presumed to be acting in good faith. The presumption of good faith shall be rebutted if it is shown by clear and convincing evidence that the employer knew such report was false, or made such report with reckless disregard for whether such report was false or not.
Any potential employer who receives a report from an employer pursuant to subsection B of an employee or potential employee and takes reasonable action in good faith to respond to the violent or threatened violent behavior noted in such report shall be immune from civil liability for such action.
Any employer or potential employer who has a suit dismissed against him pursuant to the immunity provided by this section shall be awarded reasonable attorney fees and costs.
Potential Ramifications of New Law
It is understood that former employers would like the ability to discuss workplace incidents by former employees with other employers without being subject to potential liability. However, some problems with this potential law relate to how to do so in a way that protects an employee’s rights or does not place them on some type of permanent “do not hire” list. It is often the case that we see employees who have been wrongfully terminated, or accused of significant misconduct (even about alleged threats) which is not true. As a result, some supervisors or employers may feel free to exaggerate or retaliate against an individual against a former employee under this new law.
The new proposed legislation requires the employee or applicant to prove by clear and convincing evidence that any false comments were known to be false or made with reckless disregard. I think that a better route would be to lower this standard due to the number of times that we have seen former supervisors or employers make it difficult, purposefully, for others to get a job by making false statement about a former employee. Something should be done to help alleviate workplace violence, but the question is what. I am not sure that this bill goes far enough to ensure the protections of employees given that an employer could potentially pass on false information against a former employee which could cause them not to get hired and then face hurdles in bringing suit.
Our law firm represents and advises employees on employment-related matters in the District of Columbia and Virginia. If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.