Overcoming Negative References

Hello, Anita,

Since 2010, I have not had the best fortune in regards to employment. In the myriad of positions held I did what I could not to burn bridges and always gave 2 weeks notice. If an employer were to verify my work history, is it true the only thing they can legally verify is if I worked there and eligibility for rehire? Can my previous employer disclose wage history or anything beyond the aforementioned items? I believe one of my previous employers (a former supervisor) may be providing negative information when contacted about my tenure. Thank you for any clarification you can provide in this matter.

Dear, Ruffled About References,

As I mention in my post Responding to Reference Check Requests, there are no Federal laws regarding what may or may not be divulged by a previous employer for a job reference (although compliance with the EEOC and Fair Credit Reporting Act is required). State laws regarding background checks vary; there’s a great Nolo website that outlines what information may be disclosed and who may receive that information, state by state.playing cards at computer

While it may be legal to answer many of the questions asked by reference checkers, HR departments these days, wishing to avoid discrimination and defamation lawsuits, are playing their cards close to the vest and not revealing much besides dates of employment. (Just try getting an opinion rather than a hard fact from a seasoned HR professional!) Of course, not everyone got this policy memo. Supervisors at smaller companies without strict HR guidelines may become Chatty Cathy when called for a reference.

Combat negative references by offering glowing testimonial reference letters instead. Attach them to your cover email before they are even asked for. When asked for a list of references, omit this former supervisor you think may be giving you a thumbs down, unless this was your most recent job. If your job list is as long as you imply, many employers (particularly smaller businesses) will call a few references  and, unless they’re getting any red flags, will call it a day before reaching out to each and every past employer on your lengthy résumé.

If you are unable to omit this reference, you may want to address the issue head-on during the reference discussion. Tell your potential employer that you and your supervisor did not see eye to eye on certain issues and offer contact information for another colleague at that same company who may balance out the perspective.

Another tactic is to contact this former supervisor directly to clear the air. Ask whether, despite the bad  blood, you can come to a mutually agreeable response for him/her to give when called for reference checks. If you strongly feel that this supervisor is still dispensing inaccurate negative information (based not only on intuition, but feedback from interviewers), check to see if this manager is following his or her company’s HR policy for responding to reference requests.  If worse comes to worst, contact an employment attorney about the possibility of sending a cease and desist letter to your former boss.

Readers: Have you ever been surprised to hear you received a bad reference from a former employer?

RELATED POSTS:

Responding to Reference Check Requests
Finding Job References
Reference Check Response

Responding to Reference Check Requests

Hi, Anita:

I received a call from a company requesting a reference for a former employee on my team. What am I allowed to say and what information should I keep confidential?  I want to be as professional as possible while being honest. Thanks.

Dear, Reference Check Responder:

More and more companies are requiring that reference checks be performed before bringing on new employees. It is a great way to get the inside scoop on an employee that you are interested in hiring and serves as a great second opinion that you are making the right or the wrong choice.

Many employees/job seekers are under the impression that it is illegal for their previous employer to disclose anything besides the dates of employment, salary information, and job title. Though it may be your current company’s policy to disclose nothing more than dates, pay, and title, there are no current federal laws in place that prevent additional employment information from being disclosed to potential employers. Each state’s laws are different so it is best to check the Department of Labor for your state to make sure you are within the protections of the law.

reference

Keep in mind that there are laws against defamation of character (slander and libel) or invasion of privacy that you must be very careful not to break. It is important that you give an accurate description of the employee in question but an exaggerated and personally charged negative reference should be avoided. Not only can it open the door for potential lawsuits, but it may also damage your credibility and professional image to peers outside of your company.

Some simple guidelines that will help you:

  • If you feel a question is too invasive, you can politely say that you are not at liberty to discuss this topic due to your current company’s policy.
  • Give responses only to questions that you feel comfortable answering.
  • If the employee left the company on bad terms, I would refer the call to your Human Resources department. These colleagues are trained to handle these situations properly.
  • Avoid giving detailed information of an employee’s negative performance.
  • Only comment on your direct observations of the current or former employee’s performance. Hearsay should not be relied on or involved in your description.
  • Medical conditions and other personal health information should never be discussed.
  • For your protection, keep a log of all reference inquiries that show the date, name of employee, name of reference requestor, and name of prospective employer company. This document should be placed in the former employee’s folder and be made available upon request.

In any situation, personal or professional, always use your best judgment. Never feel like you have to divulge more information than you feel comfortable giving. Each company is different and may have a standard procedure for handling reference requests. Always consult your supervisor or Human Resources department for additional information.

Good luck!

Anita

Readers:  What are the most difficult questions that you have been asked by a reference requestor? Have you ever had a former employee ask for a reference that you felt you should not offer?

Disclaimer

Anita Clew's blog posts are intended for general guidance and should never be taken as legal advice. In all instances where harassment, inequity, or unfair treatment is believed to be present, please consult your HR Department or legal representation.
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