Question:

I am currently searching for a new job, and I have submitted a few applications. I would like to know what I can do to ensure that my current and former employers provide accurate and appropriate references to my prospective employers. Could you please explain what an employee in my position should do?

Answer:

While prospective employees may be concerned about protecting themselves from potential negative references, there are many steps they can take in an attempt to ensure that current and former employers provide accurate and appropriate references to prospective employers. Such preventative measures include requesting letters of reference, making inquiries to current and former employers, and requesting specific terms in severance agreements. In addition, if untruthful negative references are given, aggrieved employees may be able to prevail in court.

First and foremost, it is advisable to request a letter of reference from one’s employer either before or shortly after the employment relationship ends. By obtaining a letter of reference, an employee will be privy to the employer’s assessment of his or her performance, quality of work, and punctuality, among other things. Further, positive letters can be submitted to prospective employers.

Reference letters should be drafted by the individual in charge of providing references to prospective employers for consistency purposes. In addition, if an employer declines to provide a reference letter, or if the letter provided is substandard, then the employee may not want to use that employer as a reference. Lastly, letters of reference can prove to be invaluable in cases where one’s former manager or supervisor is no longer with the company at the time the reference is needed.

Regardless of whether a letter of reference is obtainable, it is prudent for an employee to directly seek feedback from his or her current or former employer. For example, before placing an employer’s name and contact information on an application for employment, one should contact the employer to request permission to use the employer as a reference, and to ask for feedback regarding what the employer will say in response to a reference request. The responses to that and similar inquiries will give an employee a good idea as to the type of reference the employer would provide to prospective employers.

In addition, an employee who receives a severance agreement from his or her former employer can request a modification to the standard reference provision, which usually provides that any reference will be limited to the employee’s job title and dates of employment. Instead, an employee can ask for the reference provision to state that any reference will also include information regarding duties, responsibilities, and leadership skills, for example.

For numerous reasons, there are situations where a current or former employer will decline to give a reference, or give a negative reference about an individual, and in turn, the individual may feel they lost out on an employment opportunity. In those situations, the aggrieved employee may or may not have legal recourse. Under the California Labor Code, former employers are subject to criminal and civil liability for making misrepresentations in an attempt to prevent a former employee from obtaining employment.

Further, the California Civil Code prohibits employers from making false and unprivileged statements about a former employee that have a tendency to injure the employee in his or her occupation. However, the law allows current or former employers to make statements to prospective employers concerning job performance, qualifications, and eligibility for rehiring that are based upon credible evidence and made without malice. Even if such statements prove to be false, the current or former employer may be shielded from liability.

In sum, employees should be proactive in soliciting references and feedback from current and former employers before submitting resumes or applications for employment. If an employee believes that a current or former employer may provide a negative reference, the employee should reconsider using that employer as a reference. However, a current or former employer may provide a harmful reference regardless of the employee’s diligence. In some of those cases, the employee may be able to recover monetary damages from the employer, depending on the accuracy of the statements and the employer’s basis for making such statements.
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