Hiring, Firing, HR Reference & Recommendation Letters From A Prior Employer

Can you limit the amount of information your former employer provides to a potential employer when asked for a job reference?

A Common Issue Concerning Letters of Recommendation

A frustrated employee is about to start looking for a new job, having just left an old job. However, the former employee is very concerned about the things her old boss will say if she is asked for a job reference about her workplace performance. Is there a limit to the amount of information that the former employer can give to the new employer or can a limit be placed on the information provided to the new employer? This could simply be a matter of a former employer being resentful that an employee is leaving and has left and will provide a negative referral despite glowing workplace performance reviews.

In general and absent any specific state law or company policy, job related information for a character reference that a prospective employer requests can be provided by a former employer. The information that a former employer provide can be any good faith facts and opinions. However, a former employer may not say anything defamatory about the employee or provide any statement or opinion that they know to be untrue. As long as the former employer is not malicious when providing information about a former employee, it is likely that the former employer will be on safe legal grounds. Many people who are asked for a job reference will typically be cautious about what they say. This is because they will not want to face the prospect of a lawsuit by a former employee about something they have said which was defamatory, untrue or in some other way unlawful.

Difficult to Obtain the Substance of the Employee Reference Letter

While a former employer may be reserved when asked to provide a job reference, this is not nearly always the case. And that's also because they know that it's not easy for a prospective employee to find out what was said to a prospective employer. The prospective employer may prefer not to provide a reason for not hiring the employee. The disappointed worker would then likely need an information subpoena to compel either or both employers to provide the substance of the conversation or letter.

Recommended Steps Prior to Initiating a Request for a Letter of Recommendation

In the event that you know that your potential employer wishes to have a conversation with a previous employer, it may be a good idea to talk with your former employer first and think about what person may be optimal for contact. In the event that you feel that a prior boss might say something that could have a negative impact on your chances of getting the job, you may choose to provide a different employer's name for a reference if such an option exists. If you only have one prior employer, you might choose to direct an inquiry towards a person with the organization who was responsible for overseeing your work and might provide a more favorable review. Some potential employers understand the tension that may exist with a prior employer and it is possible that you could provide the names of other people in clubs or other organizations (such as volunteer organizations) with whom you may have worked.

Sometimes you don't have a choice and your potential employer may want to speak to your prior boss directly. You may wish to make it clear to your former employer that you are expecting an honest report about your good work and that hopefully he is aware of what information may prudently be shared with the potential employer, as you are. The former employer's comments may not exceed the boundaries of good faith or truth when providing such a work reference.

Review Your Employee Personnel File

If you have not yet left your current place of work, you may wish to review your employee file if your company has one. In this manner you can make sure that there is no basis for your former employer to provide a negative review if the record shows that it is unwarranted. Doing so will help you protect your rights in the event you don't get the job with the new employer as a result of something false or unfair that the prior employer shared when providing a work reference.
Employment & Labor
About author
Michael Wechsler
Michael M. Wechsler is an experienced attorney, founder of TheLaw.com, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.


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Michael Wechsler
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