Back-door references and slander

September 29, 2005 9:43 PM

What is the least expensive and easiest way to fight a slanderous bad reference, when the reference's number was not provided by me? (The employer took the "back-door reference" route.)

I was hired by a woman (with her own company) 6 weeks ago. I had given her 3 references and a list of previous employers. One of the previous employers, I only listed a name for (she was an individual who hired me) and my new employer took it upon herself to find this person's phone number and call her. (Monster.com calls this "back-door references", and calls it ethically questionable.) The former employer provided a false bad reference - she had fired me for personal issues, nothing relating to how I did my job, and may I say I had nearly had enoughl - and lied and told my new employer that I was absent all the time. Despite the bad reference, I was hired anyways, and not told about the bad reference.

I had a very serious family crisis this week (which is all I told my employer - "family crisis"), and had to miss one day. My new employer fired me for missing the one day, and told me about the bad reference she had received, and that that is why I didn't get a "second chance," so to speak. One missed day (for a very real and serious reason that I could have gotten documentation for) and I'm out, and she had never indicated it was going to be her policy.

Firstly, do I have any recourse since she did go the back-door route, circumventing my provided references and choosing to call someone else? (She did get positive references from the ones I provided.)

Secondly, as for the false reference, how can I fight it? The ex-employer won't return my calls. Is there a "cease-and-desist"-type letter I can send her? How hard is it to prove she had malicious intent when she gave that reference? I'm not sure I can afford a lawyer. Obviously, I'm not even going to list her as an ex-employer anymore.

posted by IndigoRain to law & government (18 comments total)

Check to see that your employment wasn't an at-will situation. If it says anywhere on your paperwork that you can be fired at any time for any reason, I don't think you have any legal recourse.
posted by BuddhaInABucket at 9:50 PM on September 29, 2005

If you no longer list that ex-employer, I can't see it coming up again.

It may be small comfort, but it sounds as if you may be better off without the job you just lost - this lady sounds paranoid and mean.

Sorry I don't have more practical advice.
posted by mai at 10:15 PM on September 29, 2005

Did your new employer violate any laws by firing you? This depends on where you live and whether your employer is covered by laws like the Family and Medical Leave Act. Nolo.com's employment law section is a good place to start researching.

If you want to go after the former employer who gave the bad reference, you should probably talk to a lawyer about your options. (That much should be free; the laywer can tell you how much it will cost to actually take action.)
posted by mbrubeck at 10:40 PM on September 29, 2005

I don't know where you live -- where I live, there are laws against giving bad references. I know someone whose old boss was giving her terrible references. She had a friend call up, posing as an employer, and ask for a reference. The friend taped the call. So then she had a way of knowing what the old boss was saying. She could probably have taken it to court, but she got another job offer and couldn't be bothered.
posted by acoutu at 10:46 PM on September 29, 2005

Bad references are actionable. Because of this liability, most major companies refuse to give any information beyond name, position and dates of employment.

I suggest you contact an employment attorney to proceed.
posted by I Love Tacos at 2:39 AM on September 30, 2005

Um, bad references may be actionable, but unless they're also false, you're not likely to get any satisfaction. I may be hearing it wrong, but it sounds like everyone is saying "bad" when they mean "unfavorable". I would be surprised if unfavorable (but truthful) references are illegal anywhere. If you bring a suit, the burden is on you to prove that the reference contained false statements. The fact that you were hired in spite of the unfavorable reference argues that you suffered no damage, and won't be compensated or otherwise satisfied.

Your new employer's firing you after one day's absence sounds like a different matter. If you called in and said you could not come in, I can't imagine why she'd axe you. You did call in, right? You also imply that this was the only day you'd missed in the six weeks you worked there. Is that the case?
posted by Kirth Gerson at 4:00 AM on September 30, 2005

Even regions that aren't "at-will" will usually have probationary periods of around 90 days during which they can let you go for practically any reason but the legally protected ones.
posted by Mitheral at 6:41 AM on September 30, 2005

False references may be actionable, but it's not worth it to you. This latest employer sounds like bad news anyway - you're well rid of her. Here's what you do:

--Take the "personal issues" employer off your resume.
--Don't put this current crazy lady on your resume.
--Have a beer and talk nasty about both of them with your friends. Chalk it up to life's lessons learned.
--Start sending out more resumes.
posted by jellicle at 6:45 AM on September 30, 2005

It does sound as if the reference was untruthful, as well as bad. You may want to sue the bad reference giver to stop them from polluting your future. Most recent employer is also a potential bad reference provider. At the very least, a stern letter from a hotshot attourney at a spiffy firm will help dissuade both previous employers from hurting you in the future. I disagree with Kirth; you were damaged by the reference.

Even in at at-will situation, you have some recourse if an employer violates their own stated policies, but most recent employer sounds like a small employer without stated policies. BTW, IANAL.
posted by theora55 at 6:48 AM on September 30, 2005

To be honest, IndigoRain? You're setting off my bullshit alarms. It might be unfair of me, but you've glossed over why you were fired from the last job (a dispute over missed time: how much? why? when? how often?; and what are "personal issues"?), what the family crisis at the new job was, and why you only listed minimal information for the previous employer who fired you. You also seem upset that the new employer spoiled your plan of only have her call your good references and you give a sour-grapes "I didn't like that place anymore anyway" comment on the first firing.

If you have any doubt at all that you are in the wrong, I say let it go. Your indignation appears to be manufactured out of substandard materials.
posted by Mo Nickels at 6:50 AM on September 30, 2005

Perhaps that should say: "If you have any doubt at all that you are in the right..."
posted by Mo Nickels at 6:51 AM on September 30, 2005

Anonymous, I'm having the same feeling that Mo has.

If you don't want someone to contact someone listed on your resume the only real way is not to provide their name. Or, to be more forthright, provide them but indicate that they should not be contacted. Many job applications have tick boxes for "do not call" and then you can discuss this at your interview. If you say don't call and they call, that's a real problem. Calling other people you've worked for seems more understandable. Maybe she couldn't get info she needed from your references? Whether or not it's "ethically questionable" doesn't really matter except to maybe cement your opinion that this most recent employer and you were not destined to be together.

My take on bad references is that bad references that result in you not getting a job are the ones that are more likely to be successfully actionable. You got the job, you just got it with some misgivings [apparently] on the part of your new employer which apparently were borne out [in her mind] with your family crisis.

Is it cool that she fired you for missing a day? No, I don't think so, it seems excesssive and a little bizarre, but not completely out of the range of believability, especially if it's a small company, you were in an important position, whatever. You're more likely to have recourse against your most recent employer for firing you [again, unless you were an at will employee, which is fairly likely] than you are to be able to do something about the bad reference except learn from it in the future.
posted by jessamyn at 7:21 AM on September 30, 2005

One of the previous employers, I only listed a name for (she was an individual who hired me) and my new employer took it upon herself to find this person's phone number and call her. (Monster.com calls this "back-door references", and calls it ethically questionable.)

Really? I call it reasonably dilligent. If I relied upon every person and business to provide me with the sources to research them I'd think everyone walked on water and shit gold coins that smelled like flowers.

That aside, I agree with the others - chalk it up as a "good riddance" if this clown had misgivings from their research and hired you anyway (or more likely didn't do the legwork till after they'd already made their decision) and was unreasonable. You could certainly attempt to sue or rattle the lawyer sword at the old employer but if you can just leave it off your resume without a problem I'd suggest you just work at letting the anger go and move on with more productive things.

As far as being let go for "personal issues," you should get it through you head that when it comes to work there's no such thing. They have the money and you want it. Maybe all you have to do to get it is show up and sit in a chair, maybe it's horribly backbreaking and maybe it's a daily emotional minefield where you have to read their mind as to what they want, do it twice as well as they expect and salve their delicate ego along the way. Whatever it is you have to do to keep the job IS the job. It ain't fair but it's the world and the sooner you accept it the happier you're going to be.
posted by phearlez at 7:22 AM on September 30, 2005

1) i don't think it was a "back-door reference" at all ... you provided her with the name, after all

2) i don't know how it is in your state ... but my understanding is that to sue someone for slander in michigan would cost at least 2,000 bucks

3) any court case you bring will be a public record ... and can be looked up by any future company you apply to ... and in a smaller town, they may have heard of it, anyway ... a lot of employers will take one look at that and decide not to hire you

conclusion - scratch this person as a reference and move on ... bad talking the person in a bar is permissible ...
posted by pyramid termite at 10:30 AM on September 30, 2005

No one fires someone because of one missed day of work.

You got fired because your boss didn't like having you working there. The missed day of work was the excuse.

Deal with it.
posted by ikkyu2 at 2:17 PM on September 30, 2005

In answer to some of your questions, "personal issues" means she flat-out told me she didn't like me. The reference was not simply bad but also false.

Mo Nickels: There was no dispute over missed time, she simply lied.

Jessamyn: I didn't post anonymously, and when I interviewed with her, I made it clear that we (the previous employer and I) parted on bad terms.

Kirth: Of course I called in. I didn't lie about the situation. And yes, this was the only day I missed.

While I didn't go into details with the employer, for all of you here, the family crisis is an aunt and cousin lying to my sister and making things up, resulting in my sister saying I am never allowed to see my niece again. Perhaps some of you are better at dealing with family crap, but this devastated my parents and I.
posted by IndigoRain at 2:43 PM on September 30, 2005

Just to get this straight, you took a day off over a family argument. Nobody in the family was sick, nobody was injured, nobody was for instance stranded, left without funds, transport, resources etc., nobody actually required your physical presence or your intercession with the authorities?

The only disturbance involved in the crisis was emotional disturbance?

And you told the employer this?
posted by AmbroseChapel at 6:21 PM on September 30, 2005

No I did not.

I took the day off for a "family crisis."

And if you think that the prospect of never seeing my 20-month-old niece again isn't completely devastating to me, you are very, very wrong.
posted by IndigoRain at 10:42 PM on October 2, 2005