What can former employers legally say about me?
When it comes to what former employers can and can't say about you, don't confuse company policy with the law.
Paul W. Barada, Monster salary and negotiation expert
Know what your old boss can say about you.
Nobody likes it when people talk about you behind your back, but that's an inevitable part of the job search process.
Of course, you'll gather references who will sing your praises, but the interviewer will still typically vet your former employers to verify your former job title and dates of employment. And while they're talking about you, other details of your previous employment at the company may come up. What do you think your old boss is going to say?
Many job seekers think there are laws out there restricting what former employers can say about them. However, a lot of folks may be confusing the word "law" with the word "policy."
Legality or policy?
While many companies have internal policies that define what employees can and cannot say about current or former employees, those policies fall far short of being laws in any sense.
Policies are nothing more than rules generated by the HR department and adopted by a company. They include everything from how many paid vacation days the company offers to rules about attendance and punctuality. But they are not laws that some legislative body external to the company has made to which a criminal penalty has been attached. That is the difference between the rules a company decides to adopt and laws that make it illegal to do things like speed or drive through stop signs.
For example, numerous job seekers wonder, "What can a former employer legally say about me?" If that question is taken literally, the answer is "anything." I'm not aware of any laws that restrict or bar employers—or anyone else—from exercising their First Amendment right to free speech.
That is not to suggest, however, there are no consequences associated with what is said, especially if it's an intentional lie. In other words, freedom of speech is not absolute. The classic example is you can't shout "fire" in a crowded movie theater and claim you're not responsible for any injuries you cause because you were just exercising your right of free speech.
Similarly, although there are no laws restricting what prospective employers can ask either, there may be legal consequences if a hiring decision is based on the answers.
For instance, asking questions about age, race, sex, religion, national origin and so forth, all of which are federally protected categories, isn't unlawful, but it certainly is unlawful to make an employment decision based on the answers to any of these questions. You can ask, but if you act on the answer, there very likely will be negative legal consequences.
The truth will set you free
What does all this mean? Generally speaking, it means that as long as a former employer offers honestly held opinions about a former employee or states a documented fact about that person, there's not much a former employee can do about it. While it is true that many companies choose to create policies limiting what is said about a former employee to merely confirming job titles and dates of employment, I'm not aware of any legal consequences for saying more, as long as it's the truth.
On the other hand, if the company does have a policy that prohibits saying more, you probably won't go to jail for violating it, but you could be fired. And if you intentionally and maliciously lie, you could also be sued.
What this means for you
From the job seekers' standpoint, this whole issue can be seen as something very much like a double-edged sword. Companies that restrict what can be said by policy may be hurting a good employee's chances of landing another job because, as the thinking goes, if this candidate did a good job, why wouldn't a former employer be willing to say so?
Many prospective employers see no-comment policies as a definite red flag. On the other hand, if a former employer intentionally and maliciously lies about a former employee, the result can be the same: no job offer. If that's the case, and you think a former employer is intentionally lying about you, call a lawyer.
It's not so much a matter of what a former employer can legally say or not say about you; it's more a question of what the employee has given a former employer to talk about in terms of performance, dedication, and contributions.
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Sample Reference List for Employment
When you need to provide references to a potential employer, the best way to do it is to create a list you can share with them. A reference page is a list of your references. Typically, employers ask for three references, but that number can vary.
Don't include the list on your resume. Create a separate list you can upload with your job application, if it is requested, or give to the hiring manager.
Below, you'll find a sample reference list to provide to employers upon their request for a reference list. As well, find information on getting permission to use a reference, when to provide an employer with references, and what to include on your reference list.
What to Include on a Reference List
Be sure to include full contact information for each of your references. List their full name, title, and company in addition to the street address, phone, and email. If the person prefers to use post-nominal letters (PhD, MD, CPA, etc.) or a title (Mr., Mrs., Ms.) it is appropriate to include it with their name.
Double check to make sure the information is current, and that the names are spelled correctly. (LinkedIn can be a helpful resource for confirming job titles, spelling, and other details.) Proofread your list as carefully as you proofread your resume and cover letter. You would not want to include an email address with a typo or a phone number that is missing a digit.
Be consistent with your formatting and make sure to include the same information for each reference. (That is, do not include a street address for some references, and skip it for others.) Include your own name and contact information at the top of the reference list. As well, include a title such as "References" or "References for Jane Doe" on the top of the page so that it is clear what information is on the page.
If the interviewer does not specify the number of references needed, aim to share three to five. Put the people who you think will give the most glowing, positive reference toward the top of the page.
Sample Reference List
City, State Zip
Human Resources Manager
City, State Zip
City, State Zip
City, State Zip
When to Send a Reference Page With a Job Application
When sending a resume and cover letter to apply for a job, it’s often not necessary, or desirable, to send a reference page at that time.
Unless specifically requested, you should not include your reference list with your application materials. You might want to use your current supervisor or a colleague as a reference, and you would not want them to be contacted prior to letting them know about your job search. Typically, companies check reference near the end of the application process.
Get Permission Prior to Including a Reference on the List
Also, before including a reference on your reference list, make sure that you have requested permission to use that person as a reference.
They will be better prepared to endorse you as a candidate if they know in advance that they may be contacted, rather than if they receive an unexpected phone call.
If you can, select references who are able to speak specifically about your qualifications for the job you are applying for. It’s helpful to let them know about your job search, and what types of jobs you are interested in, so they will know what qualities to highlight if they are contacted by a potential employer. If you know in advance that your reference may be contacted by a specific company, you can share your resume and the job description.
Thank You References
Remember to thank your references when they agree to act in your behalf, and offer to reciprocate in the future. While your qualifications, experience, skills, resume, cover letter, and interview all play an important role in getting hired, your references can enhance the whole picture.
Make sure they know you appreciate them taking the time to endorse you.
Reference Letter Samples
Sample reference letters and recommendation letters, letter samples for character references, and letters asking for a reference.