Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, February 21, 2014

Will The Reason For My Termination Turn Up In A Background Check?

A reader left this question in the comments to my post Loss Prevention is Lying to You.
Hey Donna, would you know if for example LP fired a person from a company, would other companies that person applies for be able to see everything that happened between him and the company he got fired from?
One of the very common statements I hear is, "I know they aren't allowed to say that in a reference." This statement usually comes from someone who is shocked (shocked!) to find out that their former employer gave them a very bad reference. Many people think employers can only give out dates of employment and job titles.

That's dead wrong. At least here in Florida, an employer can say pretty much any darned thing they want in a reference. There's a statute saying that employers can't be sued for giving truthful information in a reference here and in many other states.

What does that mean? It means that employers can trash you at will and may not be breaking the law. Here's what you need to know:

Employers can't defame you. That means they can't give out factually false information to potential employers. While they can probably get away with saying stuff like, "She wasn't a good fit," or "He didn't get along with management," or "Her performance wasn't up to par," they can't say, "He turned out to be a pedophile," or "She embezzled from us." Opinion is okay but false facts aren't. And no, they can't say, "In my opinion, she embezzled from us," and get away with it if that's false.

Truth is always a defense. Saying, "A coworker complained about sexual harassment and we had to let her go," if true, may not cross a line even if you didn't sexually harass anyone, but this is probably borderline and would depend on the situation.

Retaliation may (or may not) be illegal. Sometimes, employees say to me, but I know they're retaliating. I have to ask: "Retaliating for what?" Some people don't seem to understand the concept. Others think if they complain about bullying, unprofessionalism, or bad boss behavior they're protected. They aren't. However, if you report or object to something illegal like discrimination, failure to pay wages, safety violations, FMLA violations, or sexual harassment, then you're probably legally protected against retaliation. This means an employer can't slam you in references just to get back at you for, say, filing with EEOC.

Public records: Generally, your personnel file or loss prevention file isn't a public record, and your former employer isn't going to part with it or give a copy to a potential employer. Exceptions exist for many government entities that have to make records available to the public. Also, some publicly held corporations may have to disclose certain information to shareholders. In addition to this, if you're applying for a job in law enforcement, many times the police department will investigate by asking for a copy of your personnel file for review (and most employers will cooperate).

Legal proceedings: EEOC filings aren't public record, but lawsuits are. If you sued your former employer and your personnel file or testimony came in about your termination, then your new employer or a potential employer can get this by pulling the court file.

Industry filings: Some industries, like securities, have filings that include reason for termination. Those forms, once filed, can be pulled by potential employers in the industry.

These are all reasons why, if I'm negotiating a severance package or settlement of an employment law case, I ask for either an agreement the employer won't say negative things about you to anyone, or at least for neutral references, which means they can give dates of employment and job title only. If you left on bad terms, you might want to talk to an employment lawyer about getting an agreement that our former employer won't say bad things about you.

Some employers have a policy of only giving out neutral references, but if they violate their own policy you don't necessarily have a lawsuit against them for doing so. Many potential employers will ignore your request that they call a central reference number or HR and will call your former supervisor directly, in which case almost anything could happen.


  1. Very good and usable post. Thank's to share your experience with us. I will try to remember these tips in my blog commenting task.I also provide this service plz visit my site national instant criminal background check system There are only so many providers of background screening technology just like there are only so many options for a business to remain solvent.

  2. This is why it’s really important to maintain a good professional standing with your employer always. This is true even if you are about to quit a current job. Burning bridges will result in damaging your relationship with your employer and this can harm your career in the future.

    Andrew Calvillo

  3. Hi, I have a general question (with specific background). I'm a young assistant manager. I just got spanked by HR for this: Looking into an applicant, I called the manager of another department within my company where the applicant had formerly worked. The manager told me that the applicant had been a poor performer who quit without notice. She was very professional about it and did not defame the applicant. HR told me that I was wrong and bad and it's illegal to contact his former manager. The internet has a lot of "It's best to get consent" and "be sure to get consent" before doing backdoor reference checks, but I can't find anyone who will commit to questions of legality. Is consent required for reference checks? Or is it only an attempt to reduce defamation lawsuits? Or does it vary by state?


I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.