I follow a fellow Connecticut employment lawyer on Linkedin. His name is Daniel Schwartz, and he is the godfather of legal blogging in Connecticut. He has written a very successful employment law blog from the employer’s perspective for a few decades now, and, although we are usually on opposite sides of a legal issue, he has good insights.
This past week he wrote about Senate Bill 3, which is winding its way through the legislative process in Hartford this spring.
Senate Bill 3 should be alarming for employers and employees. Its apparent goal is to eradicate sexual harassment in the workplace. That is, without question, a laudable goal, and we have laws in Connecticut already designed to do just that.
Senate Bill 3, however, seems to miss the point on unintended consequences and collateral damage. Let me explain.
As written, the proposed law imposes disclosure requirements on an employer who provides a recommendation of a former employee to a prospective employer. Suppose a current employee asks a boss to write a letter of recommendation for him. And suppose the employee has a charge of sexual harassment – not yet proven, but asserted – pending against him.
If the boss writes a letter of recommendation for the employee, the proposed law would require the boss to disclose that there is a current charge of sexual harassment pending against the employee, regardless of whether the claim has merit or not.
Now let’s suppose the boss does not disclose the claim of sexual harassment because he believes the claim is bogus, and he believes that the employee deserves a good recommendation based on job performance. And as a result, the employee gets hired by the new employer.
Now let’s suppose that when the employee goes to the new employer, he gets charged with sexual harassment again. In that case, the former employer is going to be found liable for any of the misconduct of its former employee because it failed to disclose the past sexual harassment charge.
What does this mean? No employer is ever going to write a recommendation for a current or former employee. And I mean never. What is the gain? There is none.
And in the rare case where an employer does write a letter and does disclose the charges of sexual harassment – even if they are bogus – no future employer will hire the guy. Why take a chance and face a negligent hiring or failure to supervise claim? The employer will just move on to the next guy who doesn’t have a charge pending.
And while we are considering all of these outcomes, why is our society comfortable with punishing a person over and over again for misconduct that can be handled at the time it occurs through administrative, civil, and criminal processes? Should a workplace misconduct result in a person being unemployable? Is that good for society as a whole? Are lives to be ruined without consideration of the degree or quality of the misconduct? Isn’t this country built on the value of second chances?
Senate Bill 3 will result in really bad outcomes despite good intentions. I hope it doesn’t get legs. I hope it dies on the floor.
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