If you've been fired, your former employer can talk about the termination with anyone who calls for a job reference. That includes the fact you were terminated and the reasons, provided your ex-boss can prove what she says. An ex-employer who lies or speculates about you might be opening herself up to a lawsuit. Employers also have to comply with any relevant state laws and regulations.
Many ex-employers won't say anything more about you than the basics: your title, your start and leave dates, and your pay. That's not because of the law, it's to minimize the risk of saying anything a former employee could sue over. Terminations are often emotionally wrenching. An employee who gets angry might sue over a job reference even if everything the ex-employer said was true.
When submitting a resume, you don't have to mention you were terminated. Don't lie, but you'll have a better chance if you can explain the firing in person during an interview rather than being rejected on paper.
Generally, an ex-employer is on safe ground as long as she sticks to the facts. If she lies or says something speculative, you might have grounds to file a defamation lawsuit and win. There's a fine line between saying what she thinks about your termination and what she knows:
- If you were caught stealing from the till, that's a fact. If you were fired because she's convinced you're a thief, but has no evidence, that's speculation.
- If your boss fired you because you flunked a drug test, that's a fact. If he thinks you're using, but there's no proof, that's speculation.
- If your ex-boss has records showing you were never on time or had disciplinary issues, those are facts. Offering opinions on why you messed up can easily cross the line into defamation.
- Outright lying about your work history or performance is always wrong.
However, an ex-employer can also get into trouble if she hides negative information from a potential new employer.
State laws and labor regulations control what your ex-employer can say and how it's said. In some states, the request for information has to come from you rather than the prospective employer. In Minnesota, as long as the employer sends you the information about the firing in writing, he's protected from defamation lawsuits. Several states ban employers from saying anything that would violate a nondisclosure agreement.
The Signed Release
Some employers insist on a signed release from ex-employees before saying anything about them. The release authorizes the employer to provide the information if asked for a job reference. It also says that even if you disagree with what your ex-boss says, you waive your right to sue. Sometimes the company where you're applying for a new job will have you sign a release so it can get whatever information about your past is necessary.