Employers' obligation to confirm someone's employment?

I have a temperamental acquaintance who runs a small nonprofit organization. Got a call from someone asking for employment verification for a person and said “Oh, HER, she was a disaster, I’m not going to go into that but it was awful, and hell no I won’t verify her employment here, she can go to hell”.

I said “I’m not your HR person or your attorney or anything, but I kind of think you’re legally obligated”. To which comment this response was directed: “Damn right you’re not, so stay out of it!”

Which is good advice and I’m dropping it, not my responsibility, yadda yadda… but just for the satiation of my curiosity in such matters, am I correct that there’s a legal obligation to say “yes this person worked here from x/x/x to y/y/y” or else “nope, that person was never an employee of mine” ?

No, there is no legal obligation to provide a reference or employment history. As a matter of policy, some employers will only confirm your dates of employment and whether you’re eligible for rehire. Others will happily share all the gossip about your desk cleanliness and whether you failed to sign Cheryl’s birthday card.

I didn’t think you have to confirm employment but negative comments about someone in such an inquiry could be grounds for libel or slander. That’s why most companies will do nothing but verify the period of employment. One of the difficult parts of libel and slander cases is proving monetary damages, making negative remarks about a person’s employment history to a prospective employer is pretty good evidence that you’ve interfered with that persons ability to earn a living. The truth is a strong defense against libel or slander but using terms like ‘disaster’ and ‘awful’ aren’t easily passed off as factual claims.

The standard for business nowadays is to confirm a person’s employment, and nothing more.

The logic is simple - if you give a good recommendation, and the person is a disaster, the new employer could sue saying you misled them that she was good. If you give a negative recommendation and possibly because of that, the person did not get the job, they can sue you. Mind you, the truth is always a defense for anything, but then you would have to prove that (a) the negative recommendation was deserved and (b) honest, not based on malice. Lawsuits nowadays can be time-consuming and expensive, and the risk of losing can be expensive - especially if the company being sued has decent assets. the “recommendation” your friend gave could easily be construed as malicious, in which case they’d better be able to prove “disaster”, not just inadequate for the tasks she was given…

(my bolding) I’ve offered it before, and I will again - if anyone can provide a cite of the above bolded events ever happening - suing someone for giving a good recommendation, and winning the case - I’ll eat a pair of sweatsocks. Sweaty ones. There’s just no way you could sue someone for giving a good recommendation because later the person turned out to be a disaster when you hired them.

For once there seems to be very little difference between US and UK practice. No organisation that I worked for since the 70s would do much more than confirm dates and status. I used to get forms from some employers who wanted me to fill in all kinds of detail including “Why did this person leave?” Our practice was to ignore the form and staple our standard letter to it.

I once asked the question about someone who was fired for dishonesty - she ‘borrowed’ a small amount of money from petty cash. I was advised that if she had been prosecuted and found guilty, I could disclose it, but since her guilt was not proved in court, it was best to say nothing.

I"m not asking whether or not an employer must, or should, only verify the dates of employement and perhaps job title.

I’m asking whether or not an employer is in any way legally obligated to do exactly that much. I thought they had to confirm that yes you had worked there, if asked.

Some states have passed laws making it tough to sue anyone for libel/slander on an employment inquiry. That’s a good thing. After all, if you had someone you were thinking of hiring wouldn’t you want to know if they sucked at their last/current position?

But most companies will only give dates worked and eligibility for rehire. But they are not even required to do that.

In the field I am in (LEO) candidates have to sign an affidavit allowing previous or current employers to open their files, show everything, training standards documentation, and have supervisors talk about their performance, attendance and such. Don’t sign the affidavit and your perspective employer will drop you from consideration.

Quite recently this has bitten 2 people I know in the ass.

One of our part-time officers was up for a full-time position with another agency. Our department gave her a terrible review so she didn’t get the full-time gig. She got so pissed she stormed into the Chiefs office and screamed “If I’m so lousy why have I been employed here for the last 5 years!?!” and slammed down her letter of resignation and walked out. This all happened in the last 3 weeks.
About 6 months ago one of our full-time guys was looking to take a full-time position with another agency. He had already been employed by that agency part-time for about 5 years. Even though he already worked there, he still had to go through the entire hiring process just like anyone else per their civil service rules. Weird, huh? So when they came to us we gave him a bad review. Not only did he not get that agencies full-time job, they FIRED him from the part-time job he had there.:eek: Part-timers are not covered by the union, are LTE employees, and have no recourse over this. Now he has to continue working here knowing the brass hates him.

This question was asked on the avvo website:

The question was answered by an attorney:

A second attorney answered that they agreed with this.

Full posts and answers here: https://www.avvo.com/legal-answers/can-my-former-employer-refuse-to-verify-my-job-wit-2996215.html?opt=yes

I disagree. Let’s say you fired Billy because you learned he assaulted several female coworkers over the years. You offer to find him a job if he agrees not to sue you. You give him a nice letter saying he was kind and efficient, and was a pleasure to have in the office.

He goes to the new job and assaults a female coworker.

I haven’t found the actual case yet, but here’s a blub about one:

Now, technically, it’s the victim who won the right to sue, but I think the employer (if damaged) could sue as well.

Thanks!

Here is the case.
https://scholar.google.com/scholar_case?case=9777811175859961063&

muldoonthief, I have a relatively clean pair of socks if you need them but you might get out on a technicality. You said “if the above events ever happen[ed]…” md2000 referred to the employer suing and here, as Procrustus noted, it was the victim rather than the next employer. I do think that Procrustus is right; if the new employer had been harmed, they could have sued too.

There is a lot of variation in whether or how employers will give reference checks/reviews for past employees, but no I don’t know of any legal obligation for an employer to confirm someone’s employment… the obvious exception being an obligation to confirm to the government for tax purposes that you worked for them (but that’s automatically done by submitting standard forms every year, not answering the phone and chatting about it).

For all the talk about fear of lawsuits stemming from employer reviews, it seems pretty rare and unlikely to actually happen; the case above involved some serious criminal behavior, cover-ups/misrepresentation, and still was debateable. That case also involved written recommendations for the guy to get hired… most reviews I know of are in the form of phone conversations, leaving no actual proof of what was said.

It would take some pretty extreme measures to find out what someone said about me, and even if I could a hundred other reasons could be made up as to why I didn’t get a job. “Sure your previous employer said you have bad taste in music, but you didn’t get the job because another candidate had better qualifications”.

How could I sue a previous employer because I didn’t get a new job? I’ve done 11 interviews over the past 14 months and only been successful in one of them; so in my line of work I fail a job interview more than 90% of the time anyway. I’d need to have more money and determination to hire lawyers and press the issue than I’d probably be able to make in the job I didn’t get tp pull off a successful lawsuit of this type. And how would it help me anyway? Earning that kind of reputation would all but ensure that nobody in any line of work would hire me ever again.

I’d find it odd if a company could sue another company over a positive recommendation unless there was a serious cover up. If John has done a good job at ABC widgets, applies at PDQ Widgets and doesn’t work out, that doesn’t mean the positive recommendation was false. Perhaps John, after joining PDQ Widgets discovers that he left ABC Widgets because he’s just burned out on the industry. Or, perhaps there’s a completely different corporate culture. At ABC Widgets, half day Friday is common during the summer, and working from home is encouraged on days with bitter cold and snow. Whereas at PDQ Widgets, arriving one second after 8 AM is a cardinal sin and no one leaves before 5 PM on Friday, even on the nicest day of the year. And, no one works from home because the CEO is convinced that his 3rd cousin told him about some employee who goofed off while working from home back in 2005.

No technicality needed. Even if it were the new employer who sued muldoonthief is still safe from the horrors of foot perspiration. That case is about knowledge of a criminal proclivity, not just being a bad worker. School employees being even accused of sex crimes make the news in a big way, sometimes even with nation wide coverage.

I don’t think it matters whether these things have happened, but employers are worried that they can happen. I’ve worked for a few major companies with exactly this policy. I also know of a case where an internal transfer was given a glowing recommendation by his manager, and turned out to be not quite as advertised. I’ve heard that this is not infrequent.
Add to that that the recommendations would likely not go through HR, and are totally uncontrolled, and you can see why companies do it.

This +1

Actually, I think you do need to confirm employment dates, but +1 to the rest.

We have clear evidence that two lawyers knowledgeable in the field said no you do not need to confirm anything at all because no law says anything about having to do it, so you’d need some very strong evidence to counter their claims, not just “you think”.

Interesting thing about the guy described in the OP is that he actually did verify:
that the person in question had been employed with him, although not the position or dates,
that the relationship ended badly,
and that he is a jerk.

The person who was being checked came out smelling much better than he did.