Yes, Bad Job References Are Legal!
by TheCommuter 10,640 Views | 11 Comments Senior Moderator
Many people mistakenly believe that it is illegal for a former employer or boss to give derogatory references. The purpose of this article is to discuss the legality of bad job references from previous employers.
- 8 Published Jul 20, '12
Many people will insist that it is illegal for a former employer to give bad references or say anything negative about former employees. In fact, one woman told me, "It's against the law if a former boss says anything that may prevent you from finding another job." Well, here is some news that totally contradicts the beliefs that many people have. According to Green (2010), it is not illegal, as long as what you’re saying is factually accurate. Let me reword that: yes, it is perfectly legal to give a bad job reference!
What has happened is that some companies, in an effort to avoid the headache of nuisance lawsuits, have implemented policies that they’ll only confirm dates of employment and title, rather than commenting on performance (Green, 2010). These corporate policies are encouraged by companies and attorneys who would prefer to avoid the time and messiness associated with litigation. Even if the company could easily win any lawsuit brought forth by a former employee, they would rather not deal with litigation in the first place.
Therefore, many corporations have internal policies that forbid human resources personnel or the former manager from disclosing any information about previous employees other than job title, duties performed, dates of employment, and eligibility for rehire. As a result, this urban legend has sprung up, where tons of people seem to believe that it’s actually illegal to give a bad reference (Green, 2010). Giving a bad reference is legal as long as the former employer is providing honest information.
It's true that some companies have policies that they will only confirm dates of employment and job duties and will not comment on the employee's performance — but (a) these policies are simply policies, not the law, and (b) good reference-checkers know how to get around them, by asking the candidate to arrange a direct call with the candidate's former manager (Green, 2008).
So, what can you do if you suspect that a former manager is giving bad references that may be preventing you from securing employment? Call your old boss and ask if she'd be willing to reach an agreement with you on what she'll say to future reference calls (Green, 2008). The former employer may come to a mutual agreement with you to stop giving negative references if (s)he feels sorry for you or is fearful that you might sue the company.
If you feel the references being provided by your former boss are not honest or factual, bypass this person and reach out to HR personnel to tell them that the former boss might be giving factually inaccurate references and that you believe (s)he is hindering your prospects for finding another job. HR people are trained in this stuff, will be familiar with the potential for legal problems, and will probably speak to your old boss and put a stop to it (Green, 2008). As a last resort, tell your current interviewer that one of your former employers might give a negative reference.Last edit by Joe V on Jul 21, '12
TheCommuter is a moderator of allnurses.com and has varied experiences upon which to draw for her articles. She was an LPN/LVN for more than four years prior to becoming a registered nurse.
TheCommuter joined Feb '05 - from 'Fort Worth, Texas, USA'. Age: 33 TheCommuter has '8' year(s) of experience and specializes in 'acute rehab, long term care, and psych'. Posts: 27,360 Likes: 39,119; Learn more about TheCommuter by visiting their allnursesPage Website11Jul 20, '12 by merleeI ran into a seperate issue. There is an organization of nurse-admins in my town, and they meet 'socially' once a month. There seems to be a air of gossip, where information about staff is easily shared. If someone falls out of favor, that nurse can find it nearly impossible to get a new job. And it would be nearly impossible to prove anything.
It only takes one person to say something less than flattering about any other person to ruin a career. Even if it is a personality issue, not a true work issue, nurses have found themselves unable to even get an interview.
We may never know all that is around us.9Jul 21, '12 by ZenLoverPeople talk and there is little you can do about it. Most of the time you won't know anything bad was said. You simply won't get a call back from the potential new job. The sad part is you are completely dependent upon people to behave professionally and understand that we all deserve the opportunity to provide food on our tables. I think it is an incredibly loathesome person who would inhibit anyone from getting a job for no good reason. When you are trying to avoid a really bad employee with good reason, the network you mention above is invaluable. I personally don't believe that there a ton of bad employees out there....maybe bad fit for the team they were on, for the duties they were previously given, etc...but very few truly bad employees that don't deserve a second chance elsewhere. When someone gets their panties in a wad for personal reasons it becomes a nightmare. It can be hard to walk the fine line of being that really great employee that everyone loves, no one is jealous of, no one holds a bad day against and no one throws you under the bus to help themselves look better. If you are in the work force long enough no matter who you are...it will happen to you eventually. Develop your own network, your own impeccable references and tough skin. My 2 cents anyway.8Jul 21, '12 by TheCommuter Senior ModeratorQuote from kellyskiIn addition, it pays to be on one's best behavior at all times, especially at the workplace. You never know who's secretly reporting information about you to nursing management.Develop your own network, your own impeccable references and tough skin. My 2 cents anyway.
Always watch what you say, filter your actions, and be mindful about the manner in which you may come across to others. It pays to be safe in this cutthroat job climate.4Jul 21, '12 by ZenLoverI agree Commuter RN, good behavior goes a long way. The team you work with makes all the difference. The healthcare field is not a "Dilbert Cubical" job. Depending on your specialty the emotional highs and lows can be rough for anyone with a heart, without having to "pretend" to be Ms. Mary Sunshine 24/7. Healthcare is as dirty as it gets emotionally
and the stress of keeping it together for your patient is tremendous some days without tiptoeing on eggshells around coworkers. Outside of worrying about the best care for your patients, now you have to worry about which coworker is going to sell you down the river for behaving erratically b/c you let a tear out or became just as frustrated as your patient when she got the news today that the cancer metastasized. You need a team that supports you being human and one in which you can offer the same support. You are right...it is cutthroat out there in some places, but not everywhere. The team definitely makes the difference. If you don't work with a supportive team start shopping now to find one. Life is to darn short. Be a nurse in an environment that supports you being the best nurse possible. The time you spend away from your patients covering your rear due to bad floor politics is time you are away from doing what you love. It isn't worth it, at least not for me it isn't...and not for some of the really great nurses I know. You can't network in a viper pit.0Jul 22, '12 by Burlshoe114I interviewed for a job a few weeks ago, and was basically offered the job, pending having my references checked.
Even though I had quit my last job because it had changed dramatically over the past year, I was never diciplined, never counceled, never dropped the ball, never missed work, etc. So I didn't think providing good references from this job would be an issue.
When I called back a week later to check in, I was basically told "Thanks, but no thanks."
I am confused.
Would I be able to call the HR department and ask why they changed their minds? Or be able to see the reference check sheets to find out what they saw that made them pass me over?
I thought I had left on good terms....0Jul 23, '12 by TheCommuter Senior ModeratorQuote from Burlshoe114You have nothing left to lose by asking if you can do these things.Would I be able to call the HR department and ask why they changed their minds? Or be able to see the reference check sheets to find out what they saw that made them pass me over?0Aug 15, '12 by DespareuxI'm currently waiting the results of a background check so that my application process can proceed to the next step. I have listed work history that is over 10 years old on my resume. How far back is the third-party background checking company going to research? I'm concerned because my old supervisors were near retirement when I left the company. I do have tax statements available if my work-date history is ever questioned.