One of the most common things job seekers believe is that former employers can only confirm dates of employment and job title. This belief is widespread, comforting, and unfortunately wrong in many cases. Former employers can say quite a lot about you during a reference check, and in most states they are protected when they do so honestly.
Understanding what your former employer can legally say, what they are likely saying, and what you can do about it is essential information for anyone actively job searching.
Many people assume that companies have strict policies limiting reference information to dates of employment, job title, and perhaps eligibility for rehire. Some companies do have such policies. Many do not.
This myth likely persists because HR professionals are sometimes trained to be cautious about reference calls. But caution is not silence, and many supervisors, managers, and even HR staff will say significantly more than dates and title when asked directly.
A 2019 survey by Robert Half found that approximately one in three hiring managers had removed a candidate from consideration after checking references. If employers were only receiving dates and title, that statistic would not exist.
In most states, former employers can share any truthful information about a former employee's performance, conduct, attendance, and reason for leaving. Truth is an absolute defense against defamation claims, which means an employer who honestly reports that you were terminated for poor performance, excessive absences, or misconduct is generally protected.
Many states have enacted what are called "employer immunity" or "safe harbor" statutes that go even further. These laws specifically protect employers who provide good-faith reference information from civil liability, even if the information turns out to be incorrect, as long as it was provided without malice.
States with some form of employer reference immunity include:
In practical terms, this means your former employer has significant legal cover to speak freely about your performance, provided they are being honest and not acting with malice.
There are real limits on what a former employer can disclose. Sharing the following types of information can expose an employer to significant legal liability:
Even if something a former employer says about you is technically illegal to disclose, you will never know it happened unless you take steps to find out. Prospective employers are not required to tell you why they passed on your candidacy.
Many large companies have official policies stating that HR will only confirm dates, title, and rehire eligibility. The problem is that prospective employers often call direct supervisors and managers rather than, or in addition to, HR departments. Supervisors are frequently unaware of or unconcerned with these policies.
When a recruiter calls and asks a former manager directly about your performance, that manager may share their honest opinion with very few filters. They may say you were difficult to work with, that your performance was inconsistent, that you had attendance issues, or that they would not rehire you. All of this is legal, and most of it is completely invisible to you.
One of the most significant data points in any reference check is the answer to one simple question: "Would you rehire this person?" The answer to this question is something nearly every employer asks, and the answer carries enormous weight.
A "no" on rehire eligibility is a significant red flag that can end your candidacy immediately. Many companies mark former employees as ineligible for rehire for a range of reasons including performance, attendance, conduct, or the circumstances of their departure. If you are marked ineligible for rehire, any prospective employer asking this question will receive that information.
Reference Recon conducts anonymous employment verification calls on your behalf, using the same approach a real hiring company would. You receive a full written transcript of everything said during the call, including the answer to the rehire eligibility question.
Negative references often do not announce themselves as such. A damaging reference can sound like hesitation, careful wording, or conspicuous brevity. An HR representative who says "I can only confirm dates and title" after a long pause is saying something. A supervisor who says "I wish him well in his future endeavors" when asked about performance is also saying something.
Trained reference checkers and experienced recruiters know how to read these signals. The problem is that you are never in the room to hear them yourself.
If you believe a former employer may be giving you a negative or damaging reference, you have several options:
Former employers can say quite a lot about you during a reference check, and many do. The belief that all companies limit references to dates and title is a myth that leaves many job seekers vulnerable to damaging information they cannot see or address.
The only way to know what your former employer is actually saying is to find out directly. Most job seekers never do this, which means they are navigating their job search without knowing one of the most critical variables affecting their candidacy.
Reference Recon anonymously contacts your former employer and delivers a full written transcript of the reference call. Starting at $39.99.
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