What can a former employer legally tell a prospective employer about an employee?

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What can a former employer legally tell a prospective employer about an employee?

My supervisor (a faculty member) assumes I (a student) lied to him. He thinks I had an affair with a colleague because this colleague has misled him to believe so. I didn’t and he has no “proof”. He’s told me he’d write me a “strong” letter of recommendation making no mention of this matter but that if he were called and asked if he had “concerns” about me, he would tell the potential employer that I “misled” him. Is he out of bounds? Is it legal for a supervisor to tell a prospective employer that a former employee was “dishonest” or “misleading” based on mere suspicion? Would this be an actionable cause- verbal slander/ defamation of character?

Asked on August 7, 2010 under Employment Labor Law, New Mexico

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Your status here gives me cause for question on the applicability of employment law in your state.  Although it is probably not really an issue, how the status is viewed - work study, etc. - may cause a different spin on the results permitted.  Generally, many states have reference check immunity laws, meaning that an employer is offered protection when providing a job reference for someone. So if the prospective employer calls and asks "why" your old employer may or may not be able to tell them exactly "why."  Many employers will limit their conversation to your duties or position in their company.  If your state does not have an immunity law it is for fear of a lawsuit based upon retaliation or possibly defamation from their ex-employee.  If the reason you were "fired" was based upon an unfounded claim then I would speak with your old supervisor about the reference issue and indicate quite clearly that you are sorry that this misunderstanding has resulted in termination and that the reason that you were terminated had nothing to do with your job performance but rather other issues that you believe would be unfair for him to discuss given the lack of proof. Seek help from an employment counselor in the university if you can.  Good luck.


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