Have you ever wondered what your previous employer can say to a prospective employer? There is a common belief that your employer is only permitted to provide dates of employment and last position held. Unfortunately, this is simply not the case.
Generally, Florida law provides an employer with “qualified immunity” from damages and defamation claims for disclosing information about a former or current employee to a prospective employer, UNLESS the employer discloses information that is knowingly false.
In other words, Florida law gives employers significant leeway in what they can say about former and current employees. However, if a prior employer provides negative information to retaliate or discriminate this may give rise to other legal claims under federal and state anti-discrimination and whistleblower laws. The employer may also violate the law if it gives out confidential or protected information, such as your medical information.
While many employers have policies stating that they will provide a “neutral reference” or only very limited information about former employees—typically dates of employment and last position held—you should know that employers are not legally bound to follow their policy.
So, how do you limit what your former employer says to prospective employers? You will not be able to totally prevent a prospective employer from contacting your former employer. But, if you can get a letter of reference from your prior employer (or from someone you worked with at your last job) to provide when applying for jobs, this may be all you need. Another way is to enter into an agreement with your prior employer where the employer agrees to only provide a neutral reference or—even better—a positive reference.
Because every situation is different, it is always best to have an experienced employment attorney evaluate whether you have an actionable claim against your former employer based on bad references.