Job References - Illegal
 

It's been brought to my attention that its illegal to give information away in the USA to potential employers of someone who used to work for you. ILLEGAL! i thought it deserved a mention in here to see what people thought.

i had never known that before. i'd never come across it. Dont even know if australia has this sort of law either.im pretty savvy when it comes to these laws, but in all honesty i would have broken it a few times if there was a law like this in australia.

so in saying this, i would have broken the law, charged and possibly convicted of a crime i didnt know (although if i played ignorant i may get away with it??). i'd then probably lose my job because i 'should have known better' and i cost the company money. i think its crap.

why cant i forewarn someone that the potential employee is just a total loser who comes to work late, doesnt do his work, distracts others, doesnt get alongw ith others, isnt suited for the job etc etc ect??? i think its only fair and is part of the networking process between companies.

this law has disturbed me. probably because i dont understand it and dont agree with it. so i had a few questions for the smart people of TFP.

what type of lawsuit can you be hit with? by the former employee i assume you can be hot with loss of earnings. but how would the ex-employee know anyways unless the potential employer snitched you in, though in essence you were doing them a favour by telling them about the attributes of your former worker.

then of course there is the 'off the record' conversation. is it not considered passing of information which is still illegal?

how can the ex-employee hit you with a lawsuit, even if they didnt have the job yet? im going to assume that its a part of torts law. but what injuries intentional or otherwise did the person recieve?

im still bamboozled by this law and im trying to get my head around the reasons for it.

anyone care to explain?

I'd just like the mention that I've had an interest in going into the human resources field after I finish teaching English; there are ways that professionals wink and nod their way into reaching a certain understanding about the caliber of the person.

Anyways, that's what I've been told.

so you're saying that theres a secret body language in HR?

most of these interactions would be over the phone though. would they not?

The way I understood it is that you aren't allowed to say anything 'negative' about the former employee. You can give a reference, but it has to be favorable to the employee.

The whole thing seems extremely subjective and I don't agree with it.

As I understand it, all that a former employer is allowed to do is verify whether or not someone has worked for them.
I do think it's fair as that loser might have just hated his/her job so much that no effort was put into it. I have a friend who was fired only because the man in charge didn't like him and didn't know shit about IT.
I've been fired for both legit reasons and bogus ones-it's hard enough to sugarcoat the bogus ones without the former employer voicing their agenda to a potential new one.

I believe company policy here is to confirm dates of employment, and if asked, answer regarding whether we would re-hire the individual or not.

What's the use job of personal job references, anyway? Does any smart and non-delusional person provide references to a prospective employer that they know (that is, if they do any earnest self-examination) will speak badly of them? "Yeah, I really fucked off, on that job. And I really had a poor relationship with my boss. But, hey, I can still him as a job reference."

:orly:

ok, so whats the logic behind it? im still baffled as to why such a law is in place.

Sorry for taking this a little off topic, but is it wise to list/ask/tell your current employer that you are applying for another job and ask for a reference?

The law is there to prevent people from being vengeful.

I was "forced to resign" from a job because the boss didn't like me (mainly because I wasn't a sycophant). I wouldn't want that boss being interviewed by a potential future employer and giving his opinion of me. I was always on time, I did my job well but I simply would NOT kiss his ass.

It's also NOT a good idea to try to hide previous employment status on a resumé. So as a job hunter you'd be stuck between a rock and a hard place if the law wasn't in place.

Ignorance of the law is never an excuse in the U.S. So even if you "unknowingly" gave a bad review to a prospective employer you'd still be liable.

It's only in place indirectly - if someone calls you regarding a hire and you trash talk the individual being asked about, you'd better have documented proof of those claims. Otherwise, it's slander, and if the person applying at the new place finds out, they can come after you.

Common practice is as above, confirm dates of employment and job title. If the other person offers more, that's fine, but that comes with the inherent risk that they will something untrue or otherwise slanderous.

That's how we've largely done it - if someone calls for a reference from a former manager and they have something positive to say, they say it. If they have nothing nice to say, it's just a confirmation of employment. So there is a bit of reading between the lines for the person calling.

The rule is to prevent people from being blacklisted by previous employers. If you work in a small (or competitive) industry, and your manager knew he could keep you from getting a job elsewhere, and he knew YOU knew he could do that, he would have no incentive to pay you fair wages and/or not be an asshole, since he could basically hold your future employment status hostage.

"Dlish was a wonderful employee, and he makes nice brownies" -good reference.

"Dlish worked here from May until December" -bad reference.

"Dlsih was a glory hopper who has no idea of how we like to present interpretive dance" -illegal.

Most everywhere I worked all calls of employment were deferred to administration, and all they truly knew and would ever give out were dates worked.

One way around this if you know it will be positive is to ask your boss for a letter of recommendation or if you can at least list him as a reference.

In doing that, the prospective employer then calls your boss and can ask him personal questions about your employment.

I have applied at places that will ask for former co-workers names and contact info for this reason also. You don't have to give it to them but then they may wonder why.

I like the law, I think it is one of our best protections as workers.

I dont know what law(s) is being referenced here.

As I understand the laws, employers are not restricted from providing negative comments about a former employee....if the comment is related to job performance.

What they cant do is provide any information to a perspective future employer that is not job related or that would defame you in any way.

Every place I've ever worked will simply not give a negative referral, even if the person torched the place. Too much exposure to lawsuits. Who knows what fire can really do? Maybe the rebuilding was needed.

That may be the case, but I dont think it is illegal for an employer to provide any truthful job-related information, positive or negative, about a former employee.

Ok, there is no law that prevents a bad recommendation. Period. You will not go to jail if you give one. Period. If a policeman shows up to arrest you for it, you should see if your birthday is coming up because he's definitely a fake and probably a stripper.

This is basic First Amendment stuff.

Now, you can be SUED for giving a bad recommendation, which is something altogether different. If I give my opinion of someone's work ethic and they don't get a job based on that, then they can sue me for defamation or for not allowing them to practice their trade (a favorite in my industry). Note that I did not say that they would win.

Risk managers have encouraged HR people to simply verify employment for other HR-types. If they want to say something positive, that's fine. Just don't say anything negative. If you have nothing positive to say, just verify dates of employment.

Simple enough.

Defamation for trade-related services is libel per se, which has a dramatically lower standard of proof than other sorts of defamation. As Jazz said, they're not always going to win, since truth is always a defense for a defamation suit, but it's a lot easier to just avoid the situation all together than to risk saying the wrong thing. In my opinion, the people it hurts more are people who want good recommendations after doing a good job but can't get them because of the same law. What a great system!

dlish, there is no law in the US prohibiting an employer from giving an ex-employee a bad reference.

There are laws that allow an ex-employee to sue an ex-employer for a defamatory reference, and the standard of proof isn't all that high. The best defense against such a suit is to prove that your (the ex-employer) claims in the bad reference are true, which generally requires lots of documentation and backup. This is one of the main reasons that disciplinary action requires paperwork with signatures ("getting written up").

Thus, almost every company has a policy of only confirming dates of employment and maybe position(s) held and base compensation and maybe, in rare cases, a positive reference.

Most sources will counsel you that if you want a good reference, either get a letter from or an agreement with a previous supervisor who is willing to do that for you on a personal basis. But be aware that you are probably asking him/her to violate company policy in order to do that, risking his job.

This situation has come about due to the large number of lawsuits, some merited but many frivolous.

In the UK, you cannot say something that might damage a prior employee's chances of getting employment, as it is detrimental to their human right to seek work.

Therefore, as a matter of policy, many companies in my direct experience will state "Such and such worked for X Corp from A to B, was employed as a Whelk Grader (Second Class) for the entire time of their employment".

If asked for a character reference of an employee who was very poor, I have heard the HR manager of a former company (now defunct) say: "Are you aware that it infringes human rights law to give a bad reference?" and then hang up. :orly:

I took it that there is not a law pertaining to this, it is just that these days someone wanting to lawyer up due to a former supervisor giving a bad reference can cost a company money. We refer all requests for references to HR who only confirms dates of employment.

I believe that the only time it is illegal under Federal Law to give a negative reference is if it is in retaliation for a claim against the employer for violation of a Federal Law such as EEOC. However, bear in mind that in addition to Federal Law, every state has it's own employment laws and I guess it is quite possible that a law of this type exists in one of our states.

One more thing, I've worked for many companies that will not give a reference either way because if it's negative, and the person does not get the job based on that recommendation, they can sue you. On the other hand, if it is positive, the person gets the job, but mucks it up and turns out to be a loser, the new company can sue you if the hire was made due to that recommendation. How successful are these suits? Dunno, there's lots of provin' to do in either case. However, my previous employers all felt it was best to eliminate the possibility of expensive litigation in the first place by adopting a policy of "confirm dates of employment and job title" (and in some cases, "eligibility for rehire" - that's different than "would you rehire the person").