Speak No Evil: Negligent Employment Referral and the Employer's Duty to Warn (Or, How Employers Can Have Their Cake and Eat It Too)

Authors

J. Bradley Buckhalter

Abstract

This article begins by surveying the evolution of tort doctrine and the "no duty to act" rule. It then proceeds to examine current theories of employer liability in the referral and hiring context and moves on to trace the history of the negligent employment referral claim. Next, this section scrutinizes the Muroc decision and ends with a brief discussion of the future of negligent employment referral. Section III begins by exploring the implications of nondisclosure of reference information for both tort policy and tort doctrine. It then proposes an affirmative duty of disclosure as a solution by amalgamating the reasoning of Muroc,/em> with that of Tarasoff v. Regents of the University of California." This section concludes by illustrating how such a duty comports with both tort policy and doctrine and by assessing the effect of the proposed affirmative duty of disclosure on current theories of employer liability in the referral and hiring context. In Section IV, the article concludes that underlying policy considerations and current tort doctrine justify imposing an affirmative duty of disclosure on employers and that such a duty will benefit both employers and potential victims of employee misconduct.