State employer reference laws determine what a previous employer can reveal about you. Although laws in some states say that a former employer only can offer information about you with your consent, most state laws allow a previous employer to not only reveal that you were fired, but also the reasons why -- as long as the information is true and accurate. However, in many situations, there’s a difference between what a former employer can reveal and what a former employer is willing to reveal.
What a Former Employer Can Say
The potential for a defamation of character lawsuit is a major reason why many former employers only will confirm dates of employment when responding to an employment verification request. Defamation occurs when a former employer tells an untruth about you that damages your reputation.
Employers that choose to offer more information often will protect their business from a potential lawsuit by skirting the issue. For example, a statement such as “the employee is not eligible for rehire” means the company neither has to explicitly reveal that you were fired, nor provide any specific reasons behind the termination -- while at the same time conveying an unmistakable but perfectly legal negative message.
What a Former Employer Cannot Say
Defamation of Character Concerns
To comply with legal requirements, an employer can offer only true information. Exaggerations and saying too much by way of offering unproven or outwardly false statements may be considered defamatory. For example, a previous employer can say that you were fired for stealing if there is evidence to support the claim. However, saying you were fired for stealing without such proof would be a false statement.
In some cases, even a statement that begins with “in my opinion” may be considered defamatory. If a former employer utters an opinion that she can support with facts or evidence, the statement is protected free speech under the First Amendment of the U.S. Constitution. However, a court of law may consider an opinion that simply attacks a former employee’s character as a defamatory statement.
For example, a statement such as “in my opinion she lacked the required skill set for the position” is one that, if true, can be supported with evidence. However, telling a prospective employer the person in question is “in my opinion an incompetent fool” may be considered as an attack on the person’s character and therefore be a defamatory statement.
A former employer can’t reveal information about a termination in an attempt to prevent you from getting another job. This is known as blacklisting, and most states have anti-blacklisting laws that specifically prohibit it.