What Can Your Employer Legally Say About You?
By Jeff Shane
You've come through the job application process with flying colors and your prospective employer has told you they need only confirm your job references before making you that offer. You’ve also heard that your references can only (legally) confirm your former title/dates of employment. You’re almost home free, right?
Not so, as countless job candidates have learned to their dismay. Legal and/or corporate guidelines may indeed state that only your employment dates/titles can be confirmed, and the overall topic of job references is frequently addressed by state law. However, many references can – and very frequently do – offer considerably more commentary to your prospective employer than simply verifying your employment dates/title. As a result, many job-seeking candidates who expected a favorable (or at least neutral) assessment from their references unknowingly lose out on employment opportunities that are "torpedoed" as a result of a negative reference(s).
How do you know if one of your references is offering negative, wrongful, perhaps unlawful input about you to a prospective employer? Once identified, how can this negative input be addressed?
First, understand that any negative input a reference offers about you is not wrongful or unlawful per se. Negative input may be illegal – some categories include discrimination, defamation, retaliation, disparagement or sexual harassment. Where a third party can document that a reference’s communication was wrongful, inaccurate, and/or malicious, you may indeed have the ability – through an attorney – to pursue legal recourse. In situations where a reference’s negative input is or is not unlawful but is restricting your ability to secure future employment, it can typically be addressed through the generation and transmittal of a Cease-&-Desist letter (again, through an attorney). Remember, unless required by law (and most states do not require that a former employer disclose information about your prior employment), former employers are not required to even respond to a reference request.
Cease-and-Desist letters are typically issued by the attorney retained to represent you, to the senior management of the company where the negative reference originated, alerting the management of the negative reference’s identity and actions. Typically the very act of offering a negative reference is against corporate guidelines, which normally state that only a former employee’s title/dates of employment can be confirmed. The negative reference is cautioned by management not to offer additional comments and – out of self-interest – will usually not offer negative commentary again.
If you’re unsure as to whether a negative reference is impacting your job seeking efforts, whom can you contact? One option is Allison & Taylor, Inc. (www.allisontaylor.com), a reference checking service in business since 1984. This company will interview your reference(s) and document their input word-for-word. Approximately 50% of all reference checks they conduct uncover negative input from the reference; their report can be used for legal purposes or for the Cease-&-Desist letter described above.
Note that a negative reference is likely to continue offering the same input to every prospective employer that calls unless you detect it and take steps to stop it. Job seekers can lose many opportunities before they realize what is happening. It’s never too early to identify – and address – a negative job reference in your life.
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