Can My Employer Trash Me In References?

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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.

Yet 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.

I also got this unusual question from an AOL reader:

After an employer lays off an employee can they legally send damaging surveillance audio of the employee as a negative endorsement to the discharged employee's prospective employer to prevent the employee from being hired, or as an employment reference?

Can an employer send out damaging surveillance audio of an employee in general to whoever they want as revenge against an employee they do not like?

Wow. Just when I think I've heard it all. Employers sending out revenge videos of former employees as part of their reference is a new one on me. Never underestimate the vindictiveness of a former employer.

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, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, 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.

Now, to answer the question about the revenge video, if there is audio on that recording then there are laws that limit recording of conversations. I wrote an article last week on this topic from the employee's perspective. I don't know of any law that would prevent an employer from disclosing a video with no audio to a prospective employer. California has proposed a revenge porn law that would prohibit nude or sexual photos and videos from being posted, but hopefully even a vindictive employer wouldn't do that. Or would they?

Have a reference horror story? I'd love to hear about it in the comments section. I'll be there as @EmployeeAtty (which is also my Twitter handle).

If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs. While I can't answer every question, your question might be featured in one of my columns, or in an upcoming live video chat.
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