Can My Employer Trash Me In Job References?

I constantly hear comments like, "I know my employer is only legally allowed to give out my dates of employment and job title." The people who say this are so sure this is the law. They're also wrong, wrong, wrong. They even get angry when I tell them they're wrong.

Here are six things you need to know about job references:

1. Not one single federal law exists limiting what employers can say in references. I know you think you're sure about this law existing. You probably heard it from a friend or on TV. There is no such law.
2. No state prohibits employers from giving out truthful information about an employee's job performance. There is not a single state law that I've found (and I'm sure my employment lawyer colleagues around the country will chime in if they know of one) saying that employers can only give out dates of employment and job title. Discussing job performance is allowed.
3. Most states don't require employers to give any reference at all. Some vindictive employers will simply refuse to return calls from prospective employers. Employees who have to undergo background checks may be disqualified from a job just because a former employer refused to speak. While some states require employers to give out specific limited information, most require nothing at all from former employers. This can also be a problem if you need to apply for unemployment or public assistance.
4. Some states require employers to give former employees a letter with specific information (varies from state to state). These states are California, Delaware, Indiana, Kansas, Maine, Minnesota, Missouri, Montana, Nebraska, Nevada, Oklahoma, Texas and Washington. You can check out each state's requirements here.
5. Most states give employers some immunity from slander and libel suits. Each state's immunity is a little different, but employers in most states get a lot of leeway in what they can say about former employees.
6. Truth is always a defense to a slander or libel suit. Even in states without immunity, if your employer gives out truthful information, you won't be able to sue for slander or libel. Truth is a defense. If your employer makes false statements of fact (as opposed to opinion), such as falsely saying you stole money or didn't meet quota, then you might have a defamation case against them.

When you leave, it's important to figure out what your former employer is going to say about you to potential employers before you start interviewing. Here are some things you can do to find out.

Ask: Some employers will tell you, if you ask them, what they will say to potential employers in references. Find out if, for instance, they'll say you're eligible for rehire.

Put it in an agreement: If you're presented with a severance agreement, one important point to negotiate will be neutral references. A contract where the employer agrees to only give out dates of employment and job title can be enforced.

Check the union contract: If you have a union, many collective bargaining agreements include a provision that the employer can only give out dates of employment and job title.

Look at your handbook: Many companies have a neutral reference policy. Some have a phone number or person where you're supposed to direct references. A company with a neutral reference policy will usually follow it. They have it for a reason. If you find out your former supervisor is violating the policy, complain to HR or the supervisor's boss. They may get in trouble, and will almost certainly be ordered to cut it out.

Reference-checking company: There are companies that will pretend to be potential employers and check references for you. They can give you a report about what your former employer is saying. If they're saying something untrue, you may want to get a lawyer to write a cease and desist letter for you. If they're breaching a non-disparagement agreement, you might be able to sue for breach of contract.

If you think your former employer is defaming you, or if they are breaching a non-disparagement agreement that they aren't allowed to say negative things about you, contact an employee-side employment lawyer in your state about your rights.

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.

Can My Employer Trash Me In References? 6 things you need to know about job references

Suzanne Lucas, better known as the Evil HR Lady (she's very nice and not evil at all), did an interesting article about what employers are saying about former employees in references. Hint: It's not good.

Lucas says this: "Reference-checking firm Allison & Taylor estimates that 50 percent of their reference checks come back negative or lukewarm." If you want to chill your blood, read the article for some actual things employers have said about employees.

In my AOL Jobs column, I answer a reader question about whether or not employers can trash employees in job references. You can read it here.

I'm totally slammed at work, so that's it for now. Please don't forget that the ABA Blawg 100 is asking for your votes for your favorite blog in the Labor and Employment category. If you think this blog is worthy, I continue to need your vote. Go to the ABA website here. It takes about 30 seconds to register. Then go to the Labor & Employment category. Find Screw You Guys, I'm Going Home. Look to the left and you'll see a button that says, "Vote Now." Click it. You're done. The polls shut down at close of business Dec. 20. If you have trouble voting or questions about anything else, please see the ABA's Blawg 100 FAQ.

My Employer Defamed Me!

So your employer called you incompetent. Or you disagree with your write-up. You're hopping mad. It's a lie! You're ready to sue. Slander. Libel. It has to be something you can sue for, right? Meh. Probably not. Slander and libel are in the general category of defamation. Defamation is where your employer or former employer makes a false statement of fact about you to someone other than you that damages your reputation. But most statements, even false ones, probably aren't defamation.

Here's what you need to know about defamation in the workplace:

References: Some states have statutes protecting job references to some extent, but even then the employer generally cannot give out knowingly false information. A statement that the employee was an embezzler, ponzi schemer, or pedophile, made when the person giving the reference knew it was false, will probably not be protected.

Qualified privilege: Employers also have a qualified privilege, that is, one that can be overcome, to conduct an investigation of employee wrongdoing. For instance, if someone complains of age discrimination, the employer’s human resources person, attorney, and the named witnesses can speak about the investigation and will probably be protected. There are some ways to overcome a qualified privilege, so you’ll want to talk to an attorney even if you think the statement was privileged.

Publication: The information must have been “published” to a third party, which only means that it had to be said to someone other than you. Some states consider statements made inside the company not to have been published to a third person. A statement to you about you will never be defamation unless others were present to hear it.

Absolute privilege: Some communications can never be the subject of a defamation case no matter how knowingly false. These may include statements made in a legal proceeding, statements made to police, to administrative agencies (such as unemployment), and by government officials in the scope of their employment. I say “may” because this can vary by state and can be fact-specific.

Opinion: Statements of opinion are not defamation. If the employer simply says that the employee was a poor performer, the statements may well be of opinion, not fact. Statements like, “In my opinion, she was a pedophile,” will not get around the law of defamation.

Donna’s tips:

a. Employees can defame former employers too, so be careful. Corporations can be defamed just the same as individuals. If you have a blog, website, or make statements disparaging the company or their products, you should be careful to get your facts right.

b. Defamation claims against employers can be tough. Many judges just don’t like them.

c. Sometimes a cease and desist letter will accomplish more than a lawsuit. Getting the defamer to stop the statements might be more valuable to you.

d. If you are thinking about filing a defamation claim against an individual, be careful and make sure the person has assets that will make them collectible. Broke defendants can be frustrating when you try to collect.