Q&A: Restrictions on Bad References by Former Employers

Q: I quit my last job because my boss would not stop asking me out on dates. Now I am having a really tough time finding a new position. Every time I go through an interview they seem to love me, but then it falls through once they start checking my references. I think my former boss is bad-mouthing me when these employers call, even though there is nothing negative in my work history. What can I do about this?

--Can't Find a Job (CA)

A: Most employers these days are aware of the potential liability they face for saying too much about former employees. Almost all larger companies will simply say how long the former employee worked for them, their position and rate of pay. In response to any detailed questions, they simply say it is their "policy" not to reveal anything more.

One big problem is when potential employers call supervisors or co-workers for references instead of the human resources department. Most companies have strict prohibitions on who is allowed to give out references, but this is not always the case.

The Law in California

Many Californians believe that it is illegal for employers to say anything negative about them after they leave. However, this is just not the case. It is completely legal for an employer to say anything they want about a former employee as long as it is true.

This might seem like an easy test, but when you consider some of the things that employers say, such as "she wasn't a very hard worker" or "she is lazy," whether or not something is "true" becomes hard to judge.

This is why many companies just prohibit any comments about former employees' performance altogether. California employees who sue because former employers misrepresented something to potential employers can recover triple damages.

Possible Solutions

The problem you have is you do not know if your employer is truly saying negative things about you, what they are saying, or who is saying it. These are all facts you need to know before you decide what to do.

One easy way to find out this information is to have a friend or relative call your old employer and pretend to be a potential new employer. Your friend can ask whether they recommend you, whether you are eligible for rehire, if there is anything they should know about you, etc.

Another method is to use a reference-checking service. These services employ court reporters who call former employers posing as a potential new employer and type out every word that is said. After the call is concluded, they sign an affidavit testifying to the transcript's authenticity and send you a full report.

If you strongly suspect that your former employer is bad-mouthing you, this might be the way to go because the affidavit can be used to sue your former boss or the company for defamation or misrepresentation.

The best reference check service I have used is Documented Reference Check (DRC), which you can visit at www.BadReferences.com. There is a fee for their services, but it is always good to know whether a former employer is bad-mouthing you behind your back.

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6 Responses to “Q&A: Restrictions on Bad References by Former Employers”

  1. Joyce M. says:

    I used http://www.badreferences.com and caught my slimy ex-boss slandering me. These guys (Documented Reference Check) really know what they are doing. They settled as soon as they heard the name, "Documented Reference Check."

  2. Zachary Farina says:

    The reason I used Documented Reference Check was because they use Certified Court Reporters. I didn't want any problems with opposing attorneys challenging the report. It worked. Thanks for the recommendation.

  3. Slate L. says:

    I used their Canadian office (same type of service I guess). Their report showed that my ex-supervisor was slandering me to potential employers. My attorney got me a pretty good settlement. Best of all, my ex-supervisor got fired. How's that for justice!

  4. Pete Johnson says:

    Great advice. In my experience, prospective employers don't tell you if you had a bad reference, when pressed, they simply claim that another applicant was better qualified. This service also avoids the problems associated with secretly recording telephone calls. In some states it it illegal, while in other states one party to the conversation may consent to the recording.

  5. KCWA says:

    Can you provide the citation of the TRIPLE damages.

  6. California Labor Code section 1054.

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