What Can Employers Say About Former Employees?
How Much Information Employers Can Disclose About Employees
One of the things job seekers often wonder about is what a previous employer can say about them as a former employee. Some job seekers believe companies can legally release only dates of employment, salary, and their old job title. However, that's not the case.
If you’re job seeking and on shaky terms with your last employer, this may come as alarming news—especially if you were fired or terminated for cause. But even if you left on your own terms, you might have concerns.
You may wonder whether your old boss could say that you quit without notice, for example, or that you were frequently tardy or performed poorly on the job. Are there limits to what an employer can say about you?
What Former Employers Can – and Can't – Say About You
Federal and State Laws
There are no federal laws restricting what information an employer can—or cannot—disclose about former employees. And while most states have laws about what employers can legally disclose, and to whom, many do allow employers to share details about job performance, responsibilities, and professional conduct.
Check your state labor department website for information on state labor laws that limit what employers can disclose about former employees.
Companies Are Cautious
In many cases, if you were fired or terminated from employment, the company can say so. They can also give a reason. For example, if someone was fired for stealing or falsifying a timesheet, the company can explain why the employee was terminated. Depending on state laws, employers may also be able to share general feedback on your performance.
That said, because of defamation laws, companies are usually careful about what information they provide to hiring managers confirming employment or checking references. What they say must be the truth or the company can be subject to a lawsuit from the former employee. Legally, a former employer can say anything that is factual and accurate.
Concern about lawsuits is why many employers will only confirm dates of employment, your position, and salary.
How to Check on What the Company Will Disclose
If you have been fired or terminated, check with your former employer and ask what information they will give out when they get a call to verify your work history. For background, it may be helpful to review questions commonly asked during reference checks. If your former employer does give out more information than the basics, it doesn't hurt to try to negotiate the additional details they share. It certainly can't hurt to ask.
If you left under difficult circumstances, you could ask someone you know to call and check your references, so that you'll know what information is going to come out. You can also use a reference checking service to check on what will be disclosed to future employers.
Getting the Story Straight
It's important that your story and your former employer's story match. If you say you were laid off and the company says you fired, you're not going to get the job. Misrepresenting your job title or employment dates is a red flag for a potential employer and could result in you not getting the job.
Also, not telling the truth during the application process can get you fired at any time in the future—even years after you were hired. That's because most job applications have a section where you verify the information is accurate.
Don't Presume the Company Won't Disclose Information
Don't presume that your former employer won't disclose the reason why your job ended. Large companies typically have policies regarding the disclosure of former employee information, but some may not. Many smaller employers don't have a policy at all or aren't aware of or concerned about legal liability issues.
It's important to know what the employer is going to say about you because what you say needs to match what the company is going to say.
If your version doesn't match theirs and you feel the company's story about your termination isn't accurate, be upfront and say so. You'll have a better chance of getting the job than if you say one thing and the company says another.
Finally, if you anticipate a negative reference from a former employer, share additional references. If you didn't get along with your manager, for instance, provide a peer as a reference as well. Or, provide reference options from jobs earlier in your career. One negative reference will seem less meaningful if there are many positive references available as well.
The information contained in this article is not legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law. For current tax or legal advice, please consult with or an attorney.
USA Today. “Ask HR: What Can a Potential Employer Ask a Former Employer? How About a Health Condition?” Accessed Nov. 9, 2020.
SHRM. “Can Employers Give a Bad Reference for a Former Employee?” Accessed Nov. 9, 2020.
Nolo. “State Laws on References and Statements By Former Employers.” Accessed Nov. 9, 2020.