Can My Old Boss Give Me A Bad Reference?

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An AOL Jobs reader asks:

My wife and I recently moved down to south Indiana. I have applied for new jobs and was recently told by one of the jobs that my last employer informed them why they let me go. I was under the understanding that a new employer is only allowed to ask if you have worked for that company and if that company would rehire you or not. Is this correct?

I hear this myth all the time from employees: that employers can only give out dates of employment and job title or that employers can't state the reason you were fired to potential employers. It simply is not true.Since you're in Indiana, there are two different laws that apply to references:
  • IC 22-5-3-1 says your former employer is immune from a lawsuit for giving out truthful information about why you were fired, and that you can only sue if you can prove the information was known to be false when it was given. It also says that you are entitled to a copy, if you ask for it in writing, from the potential employer of any written information your current or former employer gave them about you.
  • IC 22-6-3-1 says your former employer must issue a letter, if you request it in writing, stating what you did for them, how long, and the reason you quit or were fired.
No limits: There is zero federal law limiting what employers can say in references, and I haven't found a single state law that prohibits employers from giving out truthful information about employees or former employees, or limiting what they can give to dates of employment and job title.

No reference required: Most states don't even require employers to give any references, which can be a real problem for employees. Some states, including California, Delaware, Indiana, Kansas, Maine, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, Texas and Washington, require employers to give a letter with specific information if requested.

Consent: Some states, such as Arkansas, Oklahoma, require that employees give written consent before a prospective employer can request a reference. Other states, like Delaware, require the former employer get consent from the employee before it write a reference letter.

Contract: Your union contract, employment agreement or severance agreement may limit what the employer is allowed to say about you, so read these if you have them. You might have a case for breach of contract if the employer gave out information it wasn't allowed to.

Handbook: Your employer may have a policy of only giving out neutral references (dates of employment and job title) so if someone broke the company rules you may be able to report them to HR or management to get them in trouble and make it stop. However, you are likely not able to sue for a violation of the handbook or a company policy.

For more on references, check out my column, Can My Employer Trash Me In References? When in doubt, talk to an employee-side employment lawyer in your state about your rights.

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.

Please note: Anything you write to me may be featured in one of my columns. I won't be able to respond individually to questions.
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