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Speak No Evil: What Can a Former Employer Say About You?

In these recessionary times when many of us feel like a pinball as we bounce from job to job, we often wonder: what can my former employer say about me after I'm gone?

Not speaking ill of those no longer with us may be a moral obligation in our personal lives and it might also be a legal obligation in our professional lives. At least up to a point.

As a broad concept, your former employer can generally say anything he or she would like about you, in references, as long as it is true. With that in mind, there are some limitations. Here are some of the bright line limits employers should follow:

Blacklisting: About 20 states have specific laws against blacklisting. Blacklisting occurs when a former employer intentionally takes action to prevent a person from obtaining new employment, often in the same field or geographical area. Some states which specifically prohibit blacklisting include: North Carolina, Texas, California, Colorado, Arkansas, etc.(See for example, Calif. Labor Code Section, 1050.)

Defamation: It is the potential of crossing this line that causes employers to be careful about disclosing too much information about former employees. Defamation occurs when a false stament is given to a third party which damages the reputation or economic interests of the injured party. Intentional defamation can also circle back and lead to blacklisting claims as well. A former employer is free to state whatever they know to be factually true about an employee in references, but resolution of what is or is not actually true may cost lawyer's fees and time in court.

Privacy Issues: Disclosure of private information unrelated to employment can lead to claims by employees for invasion of privacy or intentional infliction of emotional distress.

As a result of the dangers of potential suits over defamation which appear to be on the rise, many companies limit their statements about former employees to confirmation of the dates of employment. As explained by ALS Risk Management, employers are often advised "curb their enthusiasm" for detailing the negative attributes of a former employee. However, some employers will state whether or not they find the employee in question worthy of "rehire." A statement that a company would not rehire an employee speaks volumes without ever reaching the details that could enmesh them in a suit.

If you are concerned about your company's policy on references, ask. Most human resource departments will be forthcoming about their policies, especially if it is their interest to keep a good employee, or make a lax employee think twice about their future. Some companies have resorted to asking employees to sign a release to attempt to protect themselves from defamation suits. However, most employers feel the best policy is to be careful, and stick to the facts. Whether or not those facts are good or bad, is a different story.

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