What info can be released?

[Impatiens]

What is the name of your state? California.

If a person is terminated and the employer decides to list it in their files as "unsatisfactory performance", can that information be released to prospective employers calling for reference?

 

[I AM ALWAYS LIABLE]

What is the name of your state? California.

If a person is terminated and the employer decides to list it in their files as "unsatisfactory performance", can that information be released to prospective employers calling for reference?

My response:

Sure! Absolutely!

(as long as your former employer wants to be sued, that is . . .)

Negative job reference as retaliation - - most courts hold a negative reference by itself is an "adverse employment action." Therefore, plaintiff need not prove he or she would have been hired but for the negative reference. [Hillig v. Rumsfeld (10th Cir. 2004) 381 F.3d 1028, 1035-1036; Hashimoto v. Dalton (9th Cir. 1997) 118 F.3d 671, 675]

However, "It is well established that a former employer may properly respond to an inquiry from a potential employer concerning an individual's fitness for employment, and if it is not done maliciously such response is privileged." [Neal v. Gatlin (1973) 35 Cal.App.3d 871, 877, 111 Cal.Rptr. 117, 121; see Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1369-1370, 7 Cal.Rptr.3d 216, 221]


IAAL

 

[Impatiens]

My response:
"It is well established that a former employer may properly respond to an inquiry from a potential employer concerning an individual's fitness for employment, and if it is not done maliciously such response is privileged." [Neal v. Gatlin (1973) 35 Cal.App.3d 871, 877, 111 Cal.Rptr. 117, 121; see Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1369-1370, 7 Cal.Rptr.3d 216, 221] IAAL

Thanks much for the info. I take it the caller could ask "Would you re-hire this person" to which the former employer is allowed to say "Yes" or "No", right?

Impatiens

 

[I AM ALWAYS LIABLE]

Thanks much for the info. I take it the caller could ask "Would you re-hire this person" to which the former employer is allowed to say "Yes" or "No", right?

Impatiens

My response:

That is correct. But, your former employer would be on that litigation slippery slope once he answers the inevitable "Why?" question. For his sake, I hope he refuses to answer that question.

IAAL

 

[Beth3]

I not sure you understood IAAL's point. An employer may not retaliate against an employee who exercised a protected right (i.e.complaining of prohibited discrimination) by providing an untrue negative reference but an employer is completely free to provide a reference in good faith. In fact most States have passed "hold harmless" legislation specifically protecting employers against legal action if they provide an honest reference - which includes discussing negative aspects of an employee's job performance or behavior with prospective employers.