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What can a former employer state regarding a former employee to potential employers? Massachusetts

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  • What can a former employer state regarding a former employee to potential employers? Massachusetts

    What can a former employer state regarding a former employee to potential employers with respects to the particular employee, if the individual does not use the former employee as a reference, but simply lists the former employer on the application/resume? (I was under the assumption that the former employer could only state the dates the employee was employed and nothing further.) Additionally, in the case where the former employer would offer additional information that was subjective, is this legally acceptable (ie: "bad employee", "would not hire again", "late for work", etc....)? Lastly, in the event the former employer provides derrogatory information, that may not be indicative of the former employee's performance, would the former employee have the ability for legal recourse?

    Thanks in advance!

  • #2
    I have heard of this happening, but I don't think it is illegal. I always thought the employer could state when the employee worked for them, and if they would re hire them, but they can basically say whatever they want. Sorry, it is not illegal, and there is no recourse. If you think an employee would say something bad about you, you could mention this to the possible future employer, so if they do say something bad, it does not come as a surprise, and they know you did not try to hide anything.

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    • #3
      Your impression is incorrect. An ex-employer can say anything to a prospective employer that is fact or is their honestly held opinion. And it includes "bad employee" (opinion), "often late" (although late is a fact, often is subjective), "would not hire again" (fact). This is regardless of whether you listed someone from this employer as a reference or not.
      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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      • #4
        It is absolutely astonishing how many people believe that an employer may only confirm dates of employment (sometimes also including job title and/or salary). There is NO law in ANY state that makes such a limitation, and never has been.

        An employer in any state may give any information that is true, that they honestly believe is true, or that represents their honest and supportable opinion.
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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        • #5
          And, if the employer's statements are false and defamatory, you may have causes of action for libel (written), slander (spoken), tortious interference with contractual relations, etc.


          .
          This post is by Philip Gordon, a Massachusetts employment attorney (www.gordonllp.com).

          This post is NOT legal advice. It is for general/educational information purposes only. You should not rely on this post if you are making decisions, and it does not create an attorney-client relationship. This post may be considered "advertising" under the MA professional rules for attorneys.

          Comment


          • #6
            Originally posted by CompensationCounsel View Post
            And, if the employer's statements are false and defamatory, you may have causes of action for libel (written), slander (spoken), tortious interference with contractual relations, etc.


            .
            So what if a past employer truely believed that an employee was stealing, but could not prove it. If they said they were let go because of suspicion of theft, would that be slander, since there really is no proof, just a hunch? Just curious.

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            • #7
              In general, a person who reports an incorrect fact, which is defamatory, may be liable for defamation if he is negligent in making the report (standard is actual malice for a public figure).

              As you might imagine there is a lot of law around defamation and employment relationships, and courts are still struggling with the concepts, evidenced by the most recent decision out of the Supreme Judicial Court just a year ago, rejecting an expansion of our defamation law to include a new "compelled self-publication" doctrine.

              But, specifically to your point, defamation for private individuals is typically defined by our courts as publishing false statements of fact which would expose the individual to public hatred, ridicule, scorn or contempt, or tend to impair his standing, in a considerable and respectable class in the community. The publication can be verbal, and only has to include one person other than the employee.

              The importance for your hypothetical is whether it is a statement of fact, and then whether the employer thought it was true.

              Statements of fact are subject to claims of defamation, but statements of pure opinion are not, because opinion is protected by the first amendment. The problem is finding the line between the two, and courts readily acknowledge the difficulting of doing that. In 2001, the SJC in Cluff v. O'Halloran stated, "[w]here the meaning of statements is imprecise and open to speculation, and the statements cannot be proved as true or false, they cannot be categorized as assertions of fact." In that way, you can categorize a statement as opinion. Of course, opinions based on known false facts which implicitly present those facts can present problems, too. But that's getting too far from your question.

              There's SO much to discuss here, and maliciousness and recklessness are taken into account, especially in cases of conditionally privileged communications, like those made from an employer to their customer about a former employee.

              Hope that gives you a start on this.



              .
              This post is by Philip Gordon, a Massachusetts employment attorney (www.gordonllp.com).

              This post is NOT legal advice. It is for general/educational information purposes only. You should not rely on this post if you are making decisions, and it does not create an attorney-client relationship. This post may be considered "advertising" under the MA professional rules for attorneys.

              Comment

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