In DC, what can a previous employer who terminated an employee say to a job applicant's prospective new employer?

May 30, 2007 9:00 AM

In DC, what can a previous employer who terminated an employee say to a job applicant's prospective new employer?

I found this on an About.com portal on DC Employment law:

A previous employer is free to provide any non-confidential information about a previous employee, as long as it's true and isn't provided to maliciously harm the employee. An employer, who provides false information that disparages the employee, may be liable for defamation. In order to avoid potential liability, many employers often refuse to comment on a past employee's job performance and confirm only dates of hire and separation, plus wage or salary information.

Is the fact of being terminated considered confidential or non-confidential? Also, is there a number to this statute or rule?

posted by onepapertiger to Law & Government (14 answers total)

My educated guess: (1) the fact of being terminated is not confidential (as opposed to, say, facts relating to a medical condition); (2) there is no number for the rule as described, as this rule will likely have become articulated through cases, ideally ones reviewed by the person writing at About.com. Note, though, that the statement you quote seems quite generic, and I imagine that exact phrasing could be used in virtually any jurisdiction.
posted by Clyde Mnestra at 9:15 AM on May 30, 2007

I'd give a call to:
DC Department of Employment Services
609 H Street, NE
Washington, DC 20002
[phone]
posted by willie11 at 9:19 AM on May 30, 2007

Be careful of your nomenclature. Termination refers to any ending of the employment relationship. It sounds like you were fired, involuntarily terminated.

Your previous employer can say anything they want to. If what they say harms you (very difficult to find out, but there are agencies that will check for you), you then have recourse.

Best bet: ask that they not contact a previous employer and if you get to the interview, be candid about it, but of course, spin as positively in your favor as possible without stretching truth/lying.
posted by valentinepig at 9:43 AM on May 30, 2007

Since a termination is reported to the District Office of Tax and Revenue and to the IRS then the fact one is terminated is not confidential.
posted by Pollomacho at 9:45 AM on May 30, 2007

If what they say harms you (very difficult to find out, but there are agencies that will check for you), you then have recourse.

Only if it is false. Stating that an employee was fired may very well do the employee harm in their job search, but it is a true, honest statement.
posted by NotMyselfRightNow at 10:18 AM on May 30, 2007

In most states, you can ask if the employee is eligible for re-hire in that organization. If the answer is no, it usually means that the employee was terminated for cause.
posted by kamikazegopher at 10:48 AM on May 30, 2007

Response by poster: Interesting. My understanding is that employers in DC are only supposed to state that the person did work there from month/date/year-month/date/year and not comment on the other stuff because then they can be liable, especially if they were fired without cause and were engaging in activities protected by public policy (which was my case--I filed a complaint and they tried to buy me out, I declined, and they terminated me.)
posted by onepapertiger at 11:09 AM on May 30, 2007

This is a common misconception. Employers can say anything they want as long as it is true. Companies sometimes implement policies to prevent individual opinions from being expressed that may expose the company to liability, but in general they can say any true thing. They could, for instance, share your numerical annual evaluation ratings or list the number of adverse actions in your file or number of times you were absent or late. Of course, no company does this, but they would be permitted to do so. Even companies with very rigid rules about what they will say will often provide dates of employment, titles and if the separation was voluntary, involuntary or a layoff
posted by Lame_username at 11:32 AM on May 30, 2007

Response by poster: Oh wait! I just looked at the severance agreement and see that it says that ONEPAPERTIGER is terminating her employment with XYZ EMPLOYER and says something about ONEPAPERTIGER's Resignation, but the letter before it (written by the HR woman) says that "We have decided to terminate your contract consistent with paragraph 8.2" which is the paragraph that says they can do that for any reason at any time for whatever reason.

So I guess I resigned....it really felt like I was being fired.
posted by onepapertiger at 12:16 PM on May 30, 2007

That seems more concerning - are you going to try to get unemployment? I thought if you were "fired" WITHOUT cause, you qualify, but if you resign, you do not. Did you agree to resign?
posted by peep at 12:28 PM on May 30, 2007

Response by poster: I suppose my signing the Severance Agreement indicates that I did agree to resign...

I don't need unemployment, won't be trying to get any. I have a new job, but just need to make sure that in the future, if, say, I ever want to go FBI or CIA, or whatever and have to supply all of my employers and supervisors, that they don't say anything inaccurate about me.
posted by onepapertiger at 12:37 PM on May 30, 2007

If you fill out your security clearance forms, you'll have to let them know that you were asked to resign. Be honest, and save that termination letter to include with your packet, and you'll be fine.
posted by kdar at 12:50 PM on May 30, 2007

DC, I believe, is an at-will employment jurisdiction. When I signed a similar agreement some 7 years ago, it was still reported to the unemployment commission as a lay-off (which is what it was) and I was able to collect unemployment insurance. Ultimately, you need to check with the DC Department of Employment Svcs and your former employer.
posted by wildeepdotorg at 4:13 PM on May 30, 2007

Unless your former employeer was a monster, there isn't too much to worry about. You need to worry about your interview.

From your former employer's prospective, you're gone. He or she doesn't want trouble from you. Why should s/he be that concerned about an organization that may be a competitor?Both parties will go over the facts and get on with things ASAP. All but the craziest inexperienced asshole knows that sounding negative reflects poorly on him, is a liability, and means a longer, more indepth conversation.

My feeling, as someone who has given references for people who have been fired, is that the people who call have already made up their minds. I have even pointed out that the person I was serving as a reference for, was in fact a manager from another department, whom I know socially, not professionally. This would have sent up a red flag for me, as would have my vague answers, but this candidate clearly already had the job.

My advice: At your interview, look people straight in the eye and say something like 'it was a mutually agreeded upon termination, a non hostile departure. There isn't any ill-will between us, certainly not on my part.

Personally, I don't think the reference system works at all, and I imagine that saavy HR people agree with me.
posted by gesamtkunstwerk at 4:49 PM on May 30, 2007