Question About NC 14-355 Blacklisting

[BobPate]

Does the North Carolina statute (below) only protect people from being blacklisted by a former employer if they were fired by that employer?

§ 14‑355. Blacklisting employees.

If any person, agent, company or corporation, after having discharged any employee from his or its service, shall prevent or attempt to prevent, by word or writing of any kind, such discharged employee from obtaining employment with any other person, company or corporation, such person, agent or corporation shall be guilty of a Class 3 misdemeanor and shall be punished by a fine not exceeding five hundred dollars ($500.00); and such person, agent, company or corporation shall be liable in penal damages to such discharged person, to be recovered by civil action. This section shall not be construed as prohibiting any person or agent of any company or corporation from furnishing in writing, upon request, any other person, company or corporation to whom such discharged person or employee has applied for employment, a truthful statement of the reason for such discharge. (1909, c. 858, s. 1; C.S., s. 4477; 1993, c. 539, s. 235; 1994, Ex. Sess., c. 24, s. 14(c).)

[cbg]

No. What that statute is saying is that an employer cannot deliberately try to prevent a former employee from getting other employment (i.e. "I;m going to see that you never work in this town again"). Nothing in the statute says that it only applies to employees who have been fired.

However, it goes on to say that if an employee has been fired and the employer is contacted for a reference, the employer will not be considered to be violating the law if he gives a truthful reason why the employee was fired.

[BobPate]

Don D. Sessions, an Employee Rights Attorney in Mission Viejo, California, wrote the following in EQUAL OPPORTUNITY CAREER JOURNAL, May–June 1995:

"If the information is not specifically requested by a prospective employer, a past employer usually cannot give it. Some laws do not even require the element of intent by the past employer. A false statement or a true statement which is not solicited by a prospective employer may be enough to hold a past employer responsible."

Does anyone know if the above is true in North Carolina?

[cbg]

I very strongly suspect that the statement you quote was with reference to a specific situation and not intended to be an across-the-board directive.

Is it safe to assume that someone gave you a negative reference and you're looking to see if you can sue him?

[BobPate]

Actually, I believe that I was given a positive reference when my prospective employer called my former boss and that the boss of my former boss, then, called my prospective employer and made harmful remarks about me.

I understand this will be hard to prove. I doubt that my new employer will want to get involved and will probably be less than forthcoming with information.

I have been considering purchasing a reference check from one of the following services:

References-etc.com
jobreference.com
badreferences.com
Myreferences.com

But, I'm not sure they would be able to catch this second-level manager during her call back. I think it might be best to contact an attorney specializing in employee rights to see what other options might exist.

Any suggestions or advice via this forum will be welcome.

Oh, by the way, the article by Don Sessions that I mentioned in an earlier post is "The Blacklisting Problem". I found it via google.com.

[cbg]

Do you still have the new job?

Don't believe everything you find on google.

[BobPate]

I am still currently employed, although I now believe I will be discharged sometime during my 90-day trial period.

The following excerpt pertaining to blacklisting is from a 1993 Black Enterprise article entitled "10 things your employer might not tell you. (employee rights)" by Dawn M. Baskerville:

I was fired. What defense do I have against blacklisting?

Statements confirming that an employee was discharged or truthful comments concerning an employee's work habits aren't considered defamatory. However, remarks reflecting an unfavorable judgment of an employee's character, or offering an opinion alluding to incompetence or insubordination can be damaging and, thus, are actionable. "All states honor valid defamation lawsuits where slander is communicated to a third party, disparaging a person in his trade, office or profession," says attorney Sack.
Sack offers the following strategies for protection against a former employer's slander:

* Act promptly once you find out that someone from your former company is making defamatory remarks that inhibit your chances for future employment. (For example, send the employer a cease and desist letter.)

* Take immediate legal action if you believe you're being blacklisted.

* Recognize that some states treat untruthful job references as crimes.

* Act swiftly if you discover that important employment data and personnel records were released to an outsider without your consent.

* Demand to inspect your personnel file.


I don't fully understand the following statement from the above excerpt and would welcome someone's comments which can elaborate and offer a couple of real world examples:

"remarks reflecting an unfavorable judgment of an employee's character, or offering an opinion alluding to incompetence or insubordination can be damaging and, thus, are actionable."

[cbg]

You don't have a case until BOTH you lose your job AND you can demonstrate that your losing your job is linked conclusively to FALSE (not negative, false) statements made to a third party about you.

Your employer is entitled to say anything that he honestly believes is true, even if it is negative. "Bob did a poor job on the Johnson project" is not defamatory if he honestly believes that you did a poor job on the Johnson project.

"Bob is a thief" is defamatory (unless, of course, you are one )

[BobPate]

NC 14-355 says "...shall prevent or attempt to prevent, by word or writing of any kind, such discharged employee from obtaining employment..."

What does the phrase "attempt to prevent" in the law mean?

[wwy]

It means the tried to keep you from getting the job, but you were hired anyway.

In otherwords "bob is a theif," but the person he told thinks it's hogwash & hires you anyway, doesn't release the person from the fact that he TRIED to keep you from work.

[BobPate]

It appears there might be two components to this issue. One pertaining to the criminal aspect of this law and the other to the penalties available in civil court should a crime be proven.

What would be required to file criminal charges alleging a person violated North Carolina statue 14-355? Can someone simply walk into a police station in the jurisdiction where the act originated and file charges? What evidence would be required?

If the new employer, who is also located in North Carolina but outside the local jurisdition, is questioned by police and fails to disclose information regarding the alleged blacklisting, are they potentially exposing themselves to an obstruction of justice charge?

[wwy]

What is the criminal aspect of the law? I'm reading it's "civil."
Defamation is also "civil."
???

[BobPate]

I thought the reference to a "Class 3 misdemeanor" in the law meant it was a crime and that "liable in penal damages" refered to the civil court aspect.

[wwy]

Oh, I see--I overlooked the class 3 misdemeanor.

Just to clarify, what I think CBG is trying to say--

There is a difference between an employer saying something negative, and saying something blatenly false. You not only need to prove that it was false, but that he KNEW it was false, and wasn't just mistaken, or stating an opinion. That is very tough to prove.

If you DO prove this, then the next issue would be did it actually cause you damage? If you got the job anyway, then you have no real damages. People have spent a lot of money proving defamation only to be rewarded no more than $1.00. That's the courts way of saying, we recognize he broke the law, but how much harm did this really cause you. (and don't jump on the "emotional distress" thing too quickly. There is a difference between just hurting someone's feelings, or making you mad, and truly causing "emotional distress." You are expected to adult, not overly sensitive.

You'd also have to demonstrate that you did not receive the job BECAUSE of the false information. If he claims you are a theif and the new employer doesn't hire you because of it, that's one thing. But if the new employer decided not to hire you for some other reason, then--no damages.

You could speak with an employment law attorney in your area. Most will offer free intial consultations. they are the ones who would be able to best tell you based on YOUR specific situation, in YOUR state courts, what options there are.

[BobPate]

Can anyone recommend a good labor law attorney in Charlotte, North Carolina?

[wwy]

This site can't give referals.
But I can PM you some sites that can help.

[BobPate]

That would be great. Thank you.