In most cases, we’ve all left jobs for greener pastures accepting positions that put us a step farther along in our career path. While that current employer may not be keen on us leaving, for the most part, it’s a respectful separation and your boss may have even offered a positive word or two about you to your new employer. So what might your potential new employer ask about you? What do they want to know? Are there legal parameters? Independent lawyer, Scott D. Wilson, gave us his take.
“If an employee has been fired and could pose a potential danger at his or her next job, a former employer has a duty to disclose this information to the next employer,” stated Wilson. “However, most former employees are reluctant to say too much in fear they may get sued for defamation.”
In Louisiana, the legal statute 23:291 outlines the law based on disclosure of employment related information. This statute protects both the employer and the prospective employer saying that information about a current or former employee’s job performance can be shared if it is accurate and the employer is not disclosing information that is knowingly false and deliberately misleading. For the prospective employer who relies on this information, he or she remains immune from civil liability including liability for negligent hiring, negligent retention, and other causes of action related to the hiring of an employee, based upon such reasonable reliance.
Even with a statute that protects both parties, employers and prospective employers remain cautious about defamation suits and negligence in hiring. “In larger, more corporate companies, employers are trained to give out minimal information,” explained Wilson. “Often, a potential employer might ask if the employee is available for re-hire. This allows them to read between the lines whether he or she was a good worker.”
In smaller business sectors or smaller job markets where company owners know each other and often cross paths in industry and social circles, they may ask about a potential hire. Because it’s social setting, or the owners are friends, they may share information with each other—good or bad.
“I get phone calls from time to time with someone saying, ‘Scott, I think I have a former employer who is putting some dirt out on me,’” said Wilson. “’I get an interview that goes great, but then I don’t get the job. What can I do?’ It’s virtually impossible for them to prove that their former employer is bad mouthing them. Proving a case of defamation means you have to prove they said something that is not factual in nature and that it caused you harm. Even though ‘he rubs me the wrong way’ can be an unflattering description that doesn’t score you points in an interview, that’s not a harmful statement.”
Besides asking if the former employee is eligible for re-hire, employers may ask additional questions, such as “What were the circumstances surrounding his termination?” They may also ask “Is she/he under a non-compete contract or are they free to come to work for us because we’re in the same industry?” This questioning protects the company from the former employer filing a lawsuit against the employee and them.
To employees that are in the challenging situation of being unhappy in their job, Wilson offered this key advice. “If you are being mistreated or harassed, or your employer is not valuing your performance, it’s probably time to leave. While looking for another job, avoid confrontation with supervisors, be careful of bad performance reviews, and don’t start filing grievances. You may think you are standing up for yourself, but you are potentially burning bridges that may keep you from getting your next job.”
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