If you’ve escaped working for a bully boss, but are afraid of what the bully will say to your prospective employers during reference checks, then this article is for you. I’ve been getting this question a lot lately, most recently from a reader named Allen, whose email to me is posted below with my response following:
Hi there, I was searching through some law websites when all of a sudden I came across your website. I had a question about job applications: is it unlawful to ask why you left your last job? The reason I asked is because I was fired from my last job for some flim flam reason, and it would be a shame if I didn’t get the job that I’m applying for due to telling the truth, and then the truth turns right around and kicks me in the butt.
Also, is it illegal for a former employer to tell anyone that they fired you?
Here’s My Response To Allen’s Job Reference Question
Thanks for writing. The answers to your questions about reference checking are “No” and “It can be”. Let me explain one at a time.
2. It can be illegal for your former employer to give a bad reference about you if he or she knows the negative reference is not true. So, whenever giving a bad reference, the company giving it must be truthful and completely accurate. If the reference is not truthful and accurate, and it causes you to not get a job, then you can sue your former employer for defamation. Here are the elements of defamation:
- Publication to a third party (the prospective employer);
- Of a false statement (the description of you as anything other than a conscientious, hardworking employee)
- That harms your reputation (you didn’t get the job)
- Damages (the money you are not making because you didn’t get the job).
See how cleanly the elements of defamation match up with the act of giving a former employee a bad reference? Your ex-employer could only argue over the second element of defamation. Elements 1, 3, and 4 are all indisputably present.
This is why so many companies only release ex-employees’ dates of hire, dates of separation, beginning wages, ending wages, and job titles. Those things are objective. The company can prove each one was accurate. But if the ex-employer starts to talking to a prospective employer about your “attitude,” or if you were “a team player” or other vague statements, then your former bosses are getting into highly subjective territory that you can dispute.
What I suggest is that you call the old company and ask what information they give out when someone calls to check a reference. If they give out more than just your dates, position and wage, then tell them you object to releasing any more than those few objective facts. Be sure to follow up in writing with your ex-employer by sending the company an email or letter (to your immediate boss and to whomever is responsible for HR). Here’s another of my famous letter templates for you to use:
“To confirm our phone conversation of earlier today, you stated that Company does release subjective information to potential employers who call to check the references of Company’s former employees.
“I continue to object to Company releasing ANY information about my tenure with Company other than my date of hire, date of separation, beginning wage, ending wage, and job title. If Company does not limit itself to these objective pieces of information, but knowingly gives out false information about my employment which causes me to not be hired, be assured that I will take legal action.
“You know that I dispute the reason given for my termination. Although I still believe that Company knows this reason was not true, I have tried to move on with my life and make a clean break. If Company decides that it must spread untrue information about me to my potential employers, I will have no choice but to reverse my decision to make a clean break and file suit against Company in court for defamation.
“I sincerely hope that Company will agree to make a clean break of our relationship and that further communication between our attorneys will not be necessary.
If your former employer has any sense at all, it will realize that it is much, much cheaper for it to only release your dates, wages and title; in fact, your former employer gains nothing by stabbing you in the back with a bad reference. Most see that giving out references offer nothing to gain and plenty to lose. With a letter like the one above, you can demonstrate to your former employer that refraining from saying anything negative about you is “a no-brainer.”
Have YOU ever faced the prospect of a former employer giving you a bad reference you didn’t deserve?