posted by shelly on Jul 28

Question by howard o: Laws on Reference Checks for employment. How can you prove wrong doing?
I have been told that it is not legal for a former employee to give incorrect or hurtful information on a reference check for a persecutive new employer. How would one prove that this is occurring when these checks are done over phone calls, that I do not believe can be recorded. How have people won these types of cases? What are the actual laws. Can someone say “He was a terrible employee, I would be careful”? What is the recourse? Have these cases ever been won against large companies?

Best answer:

Answer by rwa000
that is completely false a former employer can answer anything as long as it is truthful not opinion, ex, john was terminated for attendance,john was a poor performer, etc. as long as it is the truth they can answer some may not but there is no law.

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2 Comments to “Laws on Reference Checks for employment. How can you prove wrong doing?”

  1. Mellie714 Says:

    Don’t list anyone as a reference who would say that you are a bad employee, then it is fair game. I would ask the person who checked the reference what was said about you by your past employer. I would contact your past employer’s HR department but it probably won’t get you far to take legal action since you won’t be able to substantiate proof…it is just heresay

  2. CatLaw Says:

    Legally each state set up their own laws as to how much information a past employer can provide in a reference check. For example in Illinois, in 1997, it was decided that a past employer can provide certain information as long as it is asked for and believed true by the employer. Our neighboring states restrict what the past employer can say to just date hired, date separated, job title. Some states allow salary information, other merely a range of salary for that position. These are not easy laws to find as not only the written statutes are involved, but decisions on court cases come into play as to how that statute is interpreted.

    If person wants to sue their past employer for providing information that was against the law in their state they would need the testimony of a potential employer. That potential employer would need to say (in court, under oath) that the past employer said certain things and that those certain things were the ONLY reason that person was not hired. In the majority of states that testimony must come from a potential employer —- because that shows that the person did suffer a monetary loss, and testimony from a friend/relative could easily be challenged.

    In the real world of employment law it is extremely rare to find a potential employer who will testify in one of these cases. Why? 1. That potential employer may feel that if this person is willing to go into litigation against a past employer, he/she may take this employer into court easily. 2. The potential employer may not be able to truthfully say that it was ONLY the past employer’s referral that caused the person not to be hired — it rarely is just one thing and the past employer’s attorneys know that. 3. That potential employer does not want to spend the time it will take for litigation. For that employer there will be put through depositions, preping, trial and postponements of trial. These types of cases can take a significant amount of time.

    In Illinois court there are few wins against large companies for this type of case. That does not mean that the past employer and the person did not settle out of court. Settlements out of court are in fact a win.

    Your recourse: you can hire an attorney to start this proceeding. Be warned this is an expensive trial. In Chicago you are talking about a $ 5,000 to $ 15,000 retainer up front, you would pay all expenses, and a portion of the settlement would go to your attorney. It is expensive because it is so much work, it takes years to get into the court, and unless you have killer evidence is probably unwinable.

    Your other recourse is this: If it is your former boss or manager that is giving a bad reference, do not use his/her name on the application for a job. Only use the phone number of the Human Resources dept. — especially if that HR dept is located out of state. See if there is someone who worked with you in that company who will write you a letter of recrommendation OR will give you a good reference when called. A past boss, even if he/she is not now working at that company can provide a reference to your job skills. If none of that works, be honest with the potential employer — my boss and I had a personality conflict and he will say things about me that are not true.

    We are in a very, very poor economic time right now and jobs are hard to find. You may not be getting that job, not because of a poor reference, but because there are so many over-qualified people for every open position.

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