Can My Employer Say Bad Things About Me?
Job references and the law in PennsylvaniaBy Judy Malmon, J.D. | Last updated on May 10, 2022
If you left your previous job, whether voluntarily or as a result of termination, landing in the job market probably leaves you wondering what kind of reference your former employer will give about you. If you’ve been turned down by a potential employer for a job you thought you would get, you may even be wondering if something a reference said might have kept you from being hired. Aren’t there rules against such things?
As it happens, the rules relating to job references are somewhat misunderstood.
We live in an era when many employers decline to provide anything more than an employment verification for dates of employment in the way of a reference, but this is due largely to a strategy to avoid the cost of defending against defamation lawsuits, not because they are prohibited from speaking about former employees. In fact, employers are legally permitted to say anything in a reference about a former employee’s performance that is true, and under Pennsylvania state laws, there is employer immunity by statute (that is, immunity from liability, not from being sued and having to respond). It’s not that employers are in the wrong for providing truthful, if unflattering, information to a prospective employer who asks, but rather that most larger employers have a company policy and would just prefer to stay out of a potential mess.
What this means to you as an employee is that if you worked for a larger company, chances are your employer reference will only provide the dates of your employment and job title. This can provide some security in knowing that nothing bad should be said about you, but can also tie your former boss’s hands if they want to say glowing things about you.
“But with smaller companies, all bets are off for reference checks,” says Philadelphia employment attorney Traci M. Greenberg. “You don’t know who’s going to field that call and give a negative reference, or what they might say about an employee who may have brought a claim or challenged their termination. Often times, those employers are quick to go off about how bad an employee was, or say they would certainly not rehire them, that sort of thing.”
So, can you do anything if you had one of those negative references? Well, you can try. “However, it’s really hard to prove,” Greenberg states. “We don’t normally handle those matters unless you have an affirmative statement by the previous employer, citing what was said in that reference. You can’t file a claim based on speculation as to why you didn’t get the job. You really need a witness to come forward. It’s hard to get a prospective employer to articulate the reason why someone was not hired.”
Reference information can become significant when there has been some other legal dispute between an employee and their former employer, such as with claims of wrongful termination or employment discrimination. “In situations where there is some underlying litigation, sometimes as a condition of settlement, we seek a neutral reference, or even a positive letter of reference, in order to ensure that our clients are not further harmed by any negative statements that might be made about them.”
As an example, Greenberg tells of a client who was fired from his job as a lobbyist for posting political statements on his private Facebook page that contradicted his employer’s position. “He had been a stellar employee for like 10 years, had a great record. In the severance negotiation that we handled, one of the terms was a positive letter of reference. We had to fight hard for that because the employer was concerned that what’s on the internet stays there forever, and if they advocated on behalf of this employee that someone might see it. We were able to negotiate a positive resolution, which helped him tremendously to secure new employment.”
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