Searching and interviewing for a new job can present some anxiety regarding references. Whether you left your previous position on bad terms or are choosing to leave for different opportunities, you may be concerned about what your current or former employer can and cannot share about you. If you think your previous employer has acted maliciously or shared illegal information with a potential employer, you may need to speak with a San Francisco employment lawyer from The Armstrong Law Firm.
What Does an Appropriate Reference Look Like?
Background checks and references are a standard part of getting almost any position, and there are some pretty clear outlines of how these should go in California. The first key point of an appropriate and legal reference is that your potential employer must be the one to reach out and ask for the information. If your former employer only relays information they can legally share about you, they have a degree of protection from a lawsuit under the concept of qualified privilege. However, reference topics and conversations that may negate qualified privilege include:
- Sharing information unrelated to the job requirements for the considered position
- False or malicious statements
- Information not provided in good faith
- Unsubstantiated claims
- Information beyond what is relevant
- Information in an improper context
Job Performance
Generally speaking, your previous employer is allowed to disclose facts about your job performance. However, they may not disclose details regarding legal activities, taking advantage of benefits, or characteristics of a protected class. An example of this may be if you have a child with health concerns that cause you to miss work regularly or even take FMLA after a time. Your old employer may say that you had frequent absences, but they may not say that you had frequent absences because your child has a chronic illness that requires you to provide care.
Protected Characteristics
Additionally, your old employer may not mention things they learned about you that may be protected speech or characteristics. This may include things like your religious beliefs or political affiliation. It may also include mention of disabilities, marital status, parental status, etc.
Guidelines in Practice
These guidelines provide a relatively clear foundation for what your former employees can and cannot share about you. The bottom line is that they may share objective facts and truths about your job performance that can be substantiated by fact.
Still, they may not share your personal information beyond your job performance as it directly relates to your new position. If your previous employer shares information beyond what is asked and relevant in a way that negatively impacts you, they may be vulnerable to legal action for slander or libel.
Beyond providing a reference, your employer cannot share protected or performance-related information about you to your co-workers or anyone else that does not need to know.
For example, if you have suffered a medical emergency and take leave for treatment, your boss cannot share this with others without your permission beyond what is necessary to process the leave. Similarly, if your employer terminates your employment, they cannot share the terms of the termination beyond notification that you no longer work there.
You may be entitled to compensation if your former employer shared false or malicious statements that cost you a job offer or damaged your reputation. Everyone deserves the freedom to seek new employment without undue negative interference from previous employers. Discussing your situation with an employment law attorney may clarify your options and help you determine what to do next.