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It is often claimed in this forum - and in other places - that it is "illegal" for a previous employer to provide a negative reference. Some people even think any reference, good or bad, is illegal.
This is simply not true.
As long as the information provided is accurate, providing it is in no way against any law. Providing false, negative information about a person could be slanderous or libelous, depending upon if it is written or spoken, but these are general tort claims that have nothing to do with any employment laws.
Now, with that said, many, if not most, companies today have strict policies that prohibit the disclosure of any information about current or former employees. Such policies usually state that no one in the company except authorized persons, usually HR or a third party service such as Equifax's TheWorkNumber service, can provide reference information, and that information is usually limited to dates of employment, and sometimes, title and salary.
Company policies do not make something illegal. Only actual laws do that. And no such laws exist. If you are planning to refute what I'm stating here, please be sure to include a link to an actual statute that supports your claim of illegality (not a link to an article, blog, forum, etc that claims illegality - an actual law).
If no such company policy exists, nothing prevents a former employer from disclosing truthful, but derogatory, information about a current or former employee. It is also possible that someone could provide information in violation of a company policy, although doing so is a foolish risk to take. Keep in mind, however, that a former colleague or supervisor who no longer works at the company has no restrictions to be concerned with beyond personal liability for libel or slander, and if they tell the truth they are not liable.
Disclaimer: I am not an attorney. This is not to be considered legal advice.
Location: RI, MA, VT, WI, IL, CA, IN (that one sucked), KY
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There is lots of misinfo out there. Another one I see a lot is things along the lines of "asking what religion you are is illegal". No it's not, discriminating on the basis of religion is illegal. Those are different statements.
There is lots of misinfo out there. Another one I see a lot is things along the lines of "asking what religion you are is illegal". No it's not, discriminating on the basis of religion is illegal. Those are different statements.
Yup, that's correct. I thought I'd only open one can of worms at a time, though.
Location: In a city within a state where politicians come to get their PHDs in Corruption
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Quote:
Originally Posted by timberline742
There is lots of misinfo out there. Another one I see a lot is things along the lines of "asking what religion you are is illegal". No it's not, discriminating on the basis of religion is illegal. Those are different statements.
How do you think discrimination is proved in court of law? Only a naïve, inexperienced interviewer would ask such a question in an interview. While the question itself may not be illegal-it does make it easier for an applicant to claim discrimination if interviewer asked those questions. Furthermore, case is a slam dunk if an applicant recorded an interview.
Location: RI, MA, VT, WI, IL, CA, IN (that one sucked), KY
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Quote:
Originally Posted by tolovefromANFIELD
How do you think discrimination is proved in court of law? Only a naïve, inexperienced interviewer would ask such a question in an interview. While the question itself may not be illegal-it does make it easier for an applicant to claim discrimination if interviewer asked those questions. Furthermore, case is a slam dunk if an applicant recorded an interview.
I never said it was wise to ask. It isn't. It is idiotic to ask. No interviewer with a clue would ask about religion, marital status, etc.
It isn't illegal however, which is the point.
Oh, and if an applicant covertly recorded an interview it likely wouldn't be admissible, depending on state laws.
Location: East of Seattle since 1992, 615' Elevation, Zone 8b - originally from SF Bay Area
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Quote:
Originally Posted by timberline742
I never said it was wise to ask. It isn't. It is idiotic to ask. No interviewer with a clue would ask about religion, marital status, etc.
It isn't illegal however, which is the point.
Oh, and if an applicant covertly recorded an interview it likely wouldn't be admissible, depending on state laws.
That's right. You can ask a woman in an interview if she is pregnant, it's only illegal to discriminate against her and not hire her because of it. Stupid to go there, but if you hire her it won't be a problem. If you ask and do not hire her, you had better have plenty of hard evidence that someone else was better qualified and money to pay lawyers.
When it comes to bad references, there are subtle ways we can tell when someone has not been a good employee without the reference saying it. If the person says up front that their corporate policy is to give only dates and title, that's all you can get. If on the other hand they do not, and give some information, but when asked something like "would you hire this person again?" the answer is something like "I'd rather not answer that" they are telling you something.
That's right. You can ask a woman in an interview if she is pregnant, it's only illegal to discriminate against her and not hire her because of it. Stupid to go there, but if you hire her it won't be a problem. If you ask and do not hire her, you had better have plenty of hard evidence that someone else was better qualified and money to pay lawyers.
When it comes to bad references, there are subtle ways we can tell when someone has not been a good employee without the reference saying it. If the person says up front that their corporate policy is to give only dates and title, that's all you can get. If on the other hand they do not, and give some information, but when asked something like "would you hire this person again?" the answer is something like "I'd rather not answer that" they are telling you something.
I agree that it would look bad, the problem is the assumptions - you know what the say about "assume."
It may be company policy only to confirm dates of employment and job title. What happens when you contact an HR person on an off day and he/she does not say "I can only confirm dates & title as per company policy" up front and then says "I can't answer that" when asked the re-hire question.
Even if you have a policy of not hiring someone not eligible for re-hire at an old employer, there are may be reasons why the company says this. They may not like re-hiring people that once worked there, even though there was no problem with them.
The issue is not whether the action itself is illegal, but what can occur as a result. Even if the person providing the bad reference is accurate, the act can lead to a lawsuit. Whether you win, lose or settle, who wants to go through the hassle? That costs you time and money. And for what? So you can tell the truth about an employee who was a poor fit?
And define "accurate." Let's say you told the caller that the former employee was often absent. But you don't mention that the employee was absent because he or she was caring for a sick relative. And that he or she had approved FMLA leave to do so. Does that make the person a bad employee? Does that mean the person doesn't deserve to obtain another job? Does that mean the person will often be absent at the new job? No, no and no.
References reflect an experience within a period of time. Each job has different work spaces, coworkers and bosses. There is a thin line between what is accurate and what is opinion. Why take the time to slam someone in a reference, particularly if the person may be vindictive?
If someone was a poor fit at your workplace, be glad the person is gone. And make sure that you are a good manager and that your workplace is a great place that attracts great employees.
The issue is not whether the action itself is illegal, but what can occur as a result. Even if the person providing the bad reference is accurate, the act can lead to a lawsuit. Whether you win, lose or settle, who wants to go through the hassle? That costs you time and money. And for what? So you can tell the truth about an employee who was a poor fit?
And define "accurate." Let's say you told the caller that the former employee was often absent. But you don't mention that the employee was absent because he or she was caring for a sick relative. And that he or she had approved FMLA leave to do so. Does that make the person a bad employee? Does that mean the person doesn't deserve to obtain another job? Does that mean the person will often be absent at the new job? No, no and no.
References reflect an experience within a period of time. Each job has different work spaces, coworkers and bosses. There is a thin line between what is accurate and what is opinion. Why take the time to slam someone in a reference, particularly if the person may be vindictive?
If someone was a poor fit at your workplace, be glad the person is gone. And make sure that you are a good manager and that your workplace is a great place that attracts great employees.
I think that's the reason why calling a previous employer has become worthless in some respects.
Even if what you said was true, there may be mitigating circumstances or things that were subjective about performance.
Add to the fact that even if what you said was true, if you get hit with a frivolous lawsuit, that still costs you money.
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