Scared of getting sued? Some employers or security clearance holders may fear reporting issues they see because they’re afraid of lawsuits. If you hold a security clearance, however, you have reporting requirements and should carefully consider how you report things appropriately. If you haven’t lied about what you report, you shouldn’t be concern. But the possibility of a lawsuit should make you think twice of carrying out a vendetta by reporting false information – because that could result in both a lawsuit, and an employment issue.
Welcome back. You’re with Sean Bigley and Lindy Kyzer of ClearanceJobs.com. We’re talking this segment about Can I get sued for that? And Lindy, boy, this is a topic that covers a few different areas within the security clearance realm, but the big ones offhand that I can think of are reporting a colleague to security, something we’ve talked about in the context of security, executive agent directive or C ad threes requirement to self-report, certain categories of information that you may be aware of regarding a colleague, but also bad references. I’m concerned that if I tell the truth about my perception or my experience with this person to a background investigator, that’s going to come back to bite me and I’m going to get sued for that. So I’m curious, Lenny, first of all, how frequently do you get questions about this on clearance jobs?
So I have had one email I think I forwarded to you, Sean, cause I was like, I don’t know what’s going on with this. One was somebody who had said they had literally been sued for something that they had self-reported. And I was incredulous because it did not seem like that could be the case. And I hesitate to say that out loud. I don’t know if it was true. I did not look up the legal case court proceedings. And it sounded very, I mean, how would that happen? How would you actually get sued for something that you had reported about another employee? But I was just very, they were kind of coming to us saying, Hey, clearance jobs, I mean you’re telling us to report on our coworkers and look, I did. And then they sued me for it for what I had said. When you think about it though, I don’t think there’s anything that you could do to prevent somebody, obviously frivolous lawsuits or whatever.
There’s nothing you do to prevent somebody, I guess, who maybe got fired or has a beef from filing or claiming something saying, Hey, you said this about me and I lost my job. But if you are on the right side of the law and actually haven’t said anything, that’s untrue. My understanding is you shouldn’t be concerned. But I do think certainly it’s going to make people hesitate to report issues on coworkers, which is what I don’t like. But again, I’ve had literally one example of all of the years where somebody said, Hey, I reported on a coworker and it flipped and went south on me. And again, my understanding of how they reached out and contacted me was that it had not had a negative impact on their employer, which is also certainly a concern you could have if you’re whistleblower, if you’re the person who’s complaining and even complaining about a coworker, if your employer is like, you’re actually the troublemaker, they’re fine. And then lets you go. That’s an example I could see happening, but I haven’t. But again, there was this example of somebody who had reached out and I was like, whoa, I didn’t see that one
Coming. Yeah. So I think that this is kind of a new twist or a new twist on an older problem, which is actually that for a number of years now, employers have been wary of providing references for former employees because of the same problem where they say, and by the way, that’s not just limited to the security clearance context. That’s anywhere where you have an employer who’s calling for a job reference from a former employer. The former employer is looking at that saying, well, I don’t really have anything to gain by this. I have a lot to lose though, even if it’s a frivolous lawsuit, if I tell the truth about this person or if I give some information that maybe even I think is accurate, but it turns out to be inaccurate, whatever the case may be. And then somehow that person doesn’t get hired or it otherwise comes back to sort of bite me.
What’s the point of doing this? Why do I want to give a reference when I can just say, we have a policy of only confirming dates of employment and job title for example. That’s increasingly common with employers in all sectors because of this issue. Now to your point, there are lots of lawsuits that are frivolous, obviously. And just because someone files a lawsuit doesn’t mean that it’s going to get any traction. It may not even get off the ground, meaning it may not get past the pleadings. They file an initial complaint, judge looks at it and says, you haven’t stated a legal claim. There’s no case here to pursue. So it’s dismissed. That’s a real possibility. There’s other possibilities that well as well, you could get to what’s called the discovery stage, which is where the parties exchange information and then the case gets dismissed.
Or you could have a scenario where even the case goes all the way to trial and for whatever reason there’s insufficient evidence or a judge or jury rejects it. I mean, all of those reasons the case would get dismissed. So just because someone files a lawsuit doesn’t mean that they’re going to walk away with some big payout. But if you’re on the receiving end of that, even if it gets dismissed right out of the gates, it’s still a hassle. It’s still an expense. It’s stressful. You don’t know whether it’s going to get dismissed or not. So I understand why employers and now cleared workers are concerned about can I get sued for reporting somebody to security for giving a bad job reference, et cetera. And so the answer to this question unfortunately is not really clear cut. And to your point about the email that we received from a clearance job reader, as I wound up outlining in an article I on clearance jobs in response to that very email, the answer really is, it depends.
There are a lot of variables here. So if for example, you as a cleared worker decide that you don’t like colleague A and your solution to that or the way that you’re going to sort of carry out that vendetta is when the background investigator comes knocking, you’re going to tell the background investigator that this colleague snorts cocaine on the weekends and they’ve been known to frequent prostitutes and on and on and on down the line. All of it is completely made up. Well, that may become a problem. And if that is how you want to exercise your vendetta, just be aware that you could be on the receiving end of a lawsuit. And it may be successful. I mean, it really depends on a variety of factors, including was there malicious intent, was there some reasonable basis to believe what you were saying was true, et cetera, et cetera. And ultimately, it depends on state law in areas like defamation interference with economic advantage, those things vary widely as well. So that all then sort of brings us back to this question of, well, do I even want to take the risk? Do I want to say anything? It’s a personal judgment call, but I think that you kind of have to weigh what am I really gaining out of this? And it’s unfortunate because I think it does make some people reticent to cooperate with the background investigations process.
Yeah, no, the employment one is definitely one that we’ve seen come up at clearance jobs and people don’t even talk about that. Is there even any point of listing employment references at this point? Because employers are very reticent to actually reach out because when they do, they’re pretty much going to only get like, did this person work here? If you want to find any other information about their quality of work from a reference, an employment reference, because of exactly that reason you presented, people just aren’t providing that information anymore. I do think if you work in national security, you have to have some idea of the work that I’m doing is to support a mission. If I really see red flag behaviors, I’m going to want, my heart is going to want to report those and be willing to accept any repercussions for that. And again, knowing that the chance of those repercussions are pretty limited if what you’re reporting is true and there’s some healthy kind of reason though to not over-report and say things like, if you actually don’t know firsthand if this is secondary information or if it’s a hunch, I don’t know, maybe you email your security officer with the hunches just in case you are not the only one.
But, and again, let them make the decision about whether or not that’s actually something to report. Because that’s something too. You should have an expert in your office, your security officer who understands their employees, the risk. Let’s normalize positive interactions. Interactions with security. Right? I dunno. I was just talking to a security officer and I was like, oh, I’m so glad you emailed. I was like, you’re the only person who has ever told me that. I was like, well, what a bummer if you work at security. Probably kind of like attorneys. I only hear from people when things are going really terribly. Maybe just reach out and be like, Hey, I don’t know if this is like, I don’t know the attorney, all my gray areas making Sean very nervous, but I’m like, it would be nice if there was an interim, not a full reporting, just like a check-in. I want to just have semi adverse feelings. But yeah, we want to have some culture where you can have interactions with security about things that could be issues, and then trust your security officer to know if it’s something that actually needs to be reported. I would hope that would be the case.
Yeah, I mean, I don’t disagree. I actually was having a conversation about something related to this recently with my wife who’s a teacher, and I was complaining to her about how there’s always teacher appreciation, this teacher appreciation that, and it feels like every day practically is teacher appreciation day. And me, I’m sitting here as the lawyer going, nobody appreciates me. There’s no lawyer appreciation day. Nobody’s hosting parades for lawyers. I’m sure it’s the same thing with security officials. There’s no appreciation. It’s a very unappreciated
Job. We’ve gotten your bills, Sean, we already appreciated. You said every person who’s had to pay an attorney ever.
Yes, I can imagine. Well, it’s the way it goes, I suppose. But I think some good rules of thumb, and again, to be clear, a lot of this stuff is state law dependent. It varies widely. And so if you’re ever in a scenario where you’re concerned that something you might say is going to come back to bite you, this is why attorneys exist. I know nobody likes paying for them, but go talk to legal counsel. And that’s a mantra that I’ve repeated in many other contexts as you know, over the many years that I’ve been writing for clearance jobs and now doing our show. I’m not giving anybody legal advice here. This is sort of general information only. That being said, some good rules of thumb to think about. I would only make statements that are objectively true things that you have firsthand knowledge of.
If you are giving a reference, if you are reporting a colleague to security, something along the lines of, I saw my colleague do this or I heard him or her do this, I know this to be true because X, Y, Z, that generally is going to help protect you against any sort of claims of defamation because truth is a defense to defamation that’s very different than, well, I heard about blah, blah, blah. Well, that starts to get into a gray area. Similarly, I would be cautious of making gratuitous nasty comments about somebody’s work habits, personality characteristics, et cetera. Those tend to be fertile grounds for lawsuits. And then lastly, and I think this is something that is not appreciated enough, and that is if you are in a position where you are reporting information about somebody that you don’t necessarily have a requirement or an obligation to report.
For example, I learned this information or I suspect this information about someone who has a clearance, but I myself don’t have a clearance. I don’t work at this place. I’m just doing it to sort of get back at them or whatever. I mean, that’s also grounds for a lot of these sorts of problems. And some of the cases that I’ve seen over the years, I’ve, when I was in law practice, I used to occasionally get people who would call my office and say, my ex spouse works at this employer. I don’t work there. I don’t work in the national security community. I don’t even have a security clearance, but I want to report them because I think that they’re a scumbag and I want to tell the government how horrible they are and they eat babies and blah, blah, blah. I mean, just ludicrous crazy stuff.
But it was because they had an ax to grind and that’s how they wanted to do it. I mean, it is bad enough to have an ax to grind and to try to use the security clearance process to do it. But if you don’t even have a requirement per C ad three to report information about somebody and you’re sort of just gratuitously doing it, going out of your way to make the person’s life difficult, that’s the type of malicious conduct that tends to look really bad in hindsight and under the glare of courtroom lights. So I would just caution anybody who’s thinking about that, take a step back, think about what am I really gaining from this? Is this going to come back to bite me? Because the reality is when people do get sued, most of the cases that I’ve seen are that type of scenario.
