current employer, info given to possible employer

[arude1]

I am a 17yr old busser at a restaurant and applied for a new job. I recently found out that they called my current employer and they told them that I was lazy and not reliable which resulted in me not getting the job. Can they do that? I was told that all they could really say is "yes she works for us".

 

[cbg]

You were told wrong. That is one of the biggest myths in employment law, that employers are prohibited by law from saying anything negative about an employee. In actual fact, they may legally say anything that is true, anything that they have a good faith and supportable belief is true, or that represents their honest and supportable opinion. So if they honestly believe that you are lazy and not reliable, they may legally say so. Few if any laws prohibit an employer from telling the truth.

 

[Green_Hornet]

I am a 17yr old busser at a restaurant and applied for a new job. I recently found out that they called my current employer and they told them that I was lazy and not reliable which resulted in me not getting the job. Can they do that? I was told that all they could really say is "yes she works for us".

It would depend both on the intent, and on the fact that it is false. A prospective employer as well as a former employer could be guilty of negligent conduct, particularly if the sought position involves risk to the person as well as property of others (That's most jobs).

That said the prospective employer that checks the references and the former employer that supply information, are subject to potential liability if the exchange of information illegally harms the job applicant. This may arise under several common law principals, such as defamation, the right of privacy, and most important interference with prospective economic advantage.
Some states have enacted statutes to modify the common law this along with recent court decisions have begun to slowly move in favor of the job applicant.
Rightfully so in my opinion, since the potential for defaming a former employee by giving a bad reference is obvious. With the rise of easy access thru current technology such reform is long overdue.

Even company's that try an end run, attempting to reduce liability by having former employees signing a release form stating that the company will not be held liable in some cases is insufficient.
So the former employer should evaluate with honesty any request he/she receives regarding employee reference.


Defamation is divided into the torts of libel (publication) and slander (Speech).
Liability ensues under the following:

1.An "unprivileged" publication to another.

2.A statement that is false and defamatory,and

3.fault with respect to publication.In some instances, a plaintiff must prove that the statement has caused special harm.

So no-it is not a "myth" Holton vs. Lockheed corp. (1991).A California jury awarded a fired employee almost $1 million because his former employer provided defamatory job references to perspective employers. Causing the former employee emotional distress. Hard to prove yes myth no.

California statute provides, that a statement that is NOT in response to a request, or that is accompanied by marks or symbols that convey information contrary to the statement is prima fascia evidence of a violation. Under California labor code § 1050 to 1053.

One other thing I found restaurant operators to be abominable managers in general: uniformed, unsophisticated, and often brutish in their treatment of employees. The pay stinks benefits are minimal ,and hiring fireing is arbitrary.

Management training if there is any, is rudimentary decision making is autocratic. I have seen plenty of poorly run business, but no where is the misery,and anxiety of the workers more intense then a badly run restaurant.

It's an industry screaming Unionize me,and often someone does,unfortunately not enough.