It is not unusual for your new employer to call your old employer for a previous employer reference when you apply for a new job.
On the one hand, this may be advantageous if you leave your previous work in good standing.
However, suppose you left under difficult circumstances. In that case, you may be concerned about what your previous employer may say about you and how it may affect your chances of landing this new position.
However, you have certain safeguards against what your old employer may say about you in reference to a potential new job.
No Non-Job-Related Personal Information
For one thing, your new, potential employer may not request non-job-related personal information about you.
Similarly, your previous employer may not disclose any personal, non-work-related information.
Personal information may contain details such as:
- Parenting responsibilities
- Sexual orientation
- Marital status
- Ethnic origin
The Information Must Be Correct
A previous employer cannot make false or defamatory claims about you to prevent your present employer from hiring you. That is, any information provided by your previous employer must not only be job-related, but it must also correctly reflect your work performance.
What If the Reference Is Negative?
References from previous employers can include any true information about your past employment performance, whether favorable or poor.
Your old employer may also decline to answer any questions on the employment reference form posed by your new employer. This may be detrimental when contrasted to a reference from another job applicant whose previous employer provided good responses to questions that your former company ignored.
If a previous employer decides to respond to your work reference, it must obey a fairly consistent procedure followed by all other former employee employment recommendations.
An employer should only decline to answer specific questions about an employee if the company never answers the same questions on any other employment recommendation form.
What Should I Do If a Previous Employer Gives a Bad Reference?
If you discover that a prior employer is providing false or misleading info about you, get in touch with the employer to talk about the reference checks and their policies for revealing information, and request that they cease providing false or misleading information.
If you believe that information provided in a reference check has violated your legal rights, including illegal disclosure of protected info, statements about matters other than your job performance, or comments about disability, race, or some other protected employment class, contact a labor attorney. Consult with a lawyer before issuing a cease-and-desist letter when dealing with a bad reference.
You can also use a reference-checking service to see what prior employers have to say about you.
These firms will masquerade as prospective employers and contact prior employers for a job reference check for a charge.
Basic confirmations of employment dates and compensation, attendance, performance, strengths, shortcomings, and interpersonal skills may be requested.
The reference-checking service will give you a detailed written report of the results. For a simple reference check, the expenses are often less than $100.
Can I Sue My Former Employer for Giving Bad References?
Most companies know that speaking negatively about a former employee might expose them to job reference liability, so they try to keep to the truth.
Most human resources departments will confirm your employment dates to prevent possible liability.
If an employer makes disparaging remarks about you when you contact them for a job reference, you may be entitled to sue them for defamation. However, it is crucial to highlight that the truth is a defense against defamation.
Your attorney must establish the following elements in order to successfully bring a case for defamation.
- You must have suffered as a consequence of the false statement: You must demonstrate that you were unable to get employment due to the falsehoods stated about you. Remember that you will not have a case if you get a job elsewhere that pays the same as the position you did not receive.
- The statement wasn’t privileged: This relates to the legal immunity of privilege, which promotes free communication for the sake of legal or moral responsibility. An excellent example is communication between a doctor and a patient or journalists making truthful claims in the press. You do not have a defamation lawsuit if a comment is made without malice.
- Your former employer must have understood that the statement they made was not true: If your prior employer had a reasonable belief that the statement was accurate, you do not have a case.
- Your prior employer published a statement about you: This doesn’t mean actually publishing something about you in print. This simply means that they made a statement to someone about you, most likely the manager at the place you applied for.
- Your prior employer must have made misleading claims about you: Subjective statements, such as having an attitude issue or being difficult to deal with, will not sustain a defamation lawsuit. You also lack standing if any unfavorable remarks about you are accurate.
So, although your employer may lawfully communicate factual but unfavorable info about you with a prospective employer, it would also expose them to a lawsuit in which they would have to defend that fact.
Most businesses do not want to waste time and money in court defending their own activities. It would reflect poorly on a supervisor or manager if the firm were forced to bear major legal fees due to their careless acts.
Biased references are becoming rarer, yet they still occur.
Barriers to a Lawsuit for a Poor Job Reference
One of the most significant impediments to suing your employer for a poor employment reference is that it might be difficult to tell why you didn’t receive a job as an applicant if it was due to a bad reference and what precisely was stated about you.
Applicants are often turned down for jobs without being given a reason. However, suppose you could identify what was said about you, that it was false, and that it was the reason you did not obtain the job.
In that case, you have the foundation for a defamation action and may be able to pay for the damages you suffered due to not receiving the job (namely, the salary you missed out on).
If the negative employment reference was part of a larger pattern of discriminatory or harassing behavior by your employer that occurred while you were working there and was based on a protected status or characteristic, such as sexual orientation, religion, or race, you might be entitled to additional compensation and legal recourse.
See related article: How to Prepare for Your Wrongful Termination Lawyer Consultation
Seeking Legal Help
It would be best if you spoke with a wrongful termination lawyer. Your attorney may advise you on your rights and tell you whether you have a case against your former employer and if you are entitled to compensation.
Do not settle for less than you deserve. If you have received a poor reference from a previous employer, get the legal help you need. Use LegalMatch to find the right wrongful termination lawyer for your case today.