What if you apply for a job and suspect that your former employer is giving a bad reference to a prospective employer? Is there anything you can do about it? Finding a job can be difficult enough in itself, but it can be nearly impossible if a former employer is giving false or unfair information about you to a potential employer.
You might suspect your former employer is giving you a bad reference if, for example, you sail through to a second round of interviews but then the prospective employer abruptly stops the application process. Or you might get word through a potential employer, friend, or business contact that a former employer gave you a negative reference.
When this happens, the question often arises: is it legal for a former employer to say whatever it wants about a former employee when asked for a reference?
What Can an Employer Say When Asked for a Reference?
Many states offer some immunity to employers when giving references. For example, Nevada law gives immunity to employers that disclose the following information:
- “The ability of the employee to perform the employee’s job”;
- “The diligence, skill or reliability with which the employee carried out the duties of the employee’s job”; or
- “An illegal or wrongful act committed by the employee.”
However, an employer in Nevada does not have immunity if it:
- “Acted with malice or ill will”;
- “Disclosed information that the employer believed was inaccurate”;
- “Disclosed information which the employer had no reasonable grounds for believing was accurate”;
- “Recklessly or intentionally disclosed inaccurate information”; or
- “Disclosed information in violation of a state or federal law or in violation of an agreement with the employee.”
Statements by employers that could be considered defamatory may also be protected by privileges that apply to defamation law.
To summarize, a former employer can tell a prospective employer just about anything that is truthful about the former employee’s job status, performance, and ability, but if says something that is false and not protected by a privilege, such as a statement made with malice or ill will, then it may not be protected.
For example, Nevada law specifically prohibits a former employer from doing anything intentionally to prevent a former employee from obtaining employment elsewhere in the state. In fact, if found in violation of this law, the employer could be guilty of a gross misdemeanor and fined up to $5,000.
What Can I Do if a Former Employer Gives a Bad Reference?
One option is legal action. If you have evidence that a former employer has made a statement or other disclosure that violates the law, then you can seek legal help from an attorney and potentially file a lawsuit, if necessary, for violation of an anti-disclosure statute or possibly for defamation.
If you don’t have clear evidence of wrongdoing yet, then another option is to pay a firm like Allison & Taylor Inc. to contact your former employer to do a reference check to discover what the former employer is saying about you to prospective employers. If the reference check turns up any illegal disclosures, then you can pursue legal action.
If you don’t discover any obviously illegal disclosures, you can still ask an attorney to send your former employer a cease-and-desist letter asking the employer to stop giving bad references about you to potential employers.
The former employer may stop giving bad references if doing so is against the company’s policies. It’s possible that the person giving the bad reference wasn’t aware of the policy or wasn’t following it. The former employer will also know you are closely monitoring what it tells potential employers, so it may require its employees to stop giving bad references to avoid any possibility of legal action being taken against it.
Need to Stop a Former Employer from Giving Bad References?
Contact me today if you know your former employer has disclosed illegal information about you while giving a reference, or if you suspect it is disclosing illegal information and want to try to stop it.