“Are prospective employers limited in what they can ask a former employer about you, and is the former employer limited in what it can say?”

Question: I have been told that in my home state (New Jersey) and in other states, too, a prospective employer is only allowed to ask for information about (1) tenure, (2) position held, (3) salary, and nothing else, and that a former employer cannot provide anything else of a personal nature. Is this true?

Bradley Beach, NJ

Answer: Sorry, but you’ve been given misinformation, or at least incomplete information. There is a lot of confusion on this point; let me try to clarify this for you.

In general, we live in a country, like many other countries, where we enjoy freedom of speech. Just as you are “generally” free to say anything you like about a former employer, a former employer is “generally” free to say anything about you. Likewise, just as you are “generally” free to ask any questions about a prospective employer, a prospective employer is “generally” free to ask any questions it wants about you.

Put more succinctly, I know of no law that limits what a prospective employer may ask about you, or what a former employer may say about you . . . “generally.” So, you may ask yourself, “What is this ‘generally’ thing he keeps talking about?” I use “generally” because there are things that, if spoken or written, could represent that a violation of law has taken place.

Let’s talk examples: A prospective employer may ask a former employer “Do you know what race he is?” Or, a prospective employer may ask a former employer, “Is it true she is pregnant?” It is not illegal to ask those questions, BUT they surely do suggest (maybe even prove) that the prospective employer may be acting in violation of laws prohibiting employment decisions based upon race and pregnancy. So, many people call those questions “Illegal Questions,” for short, although there is no law that says, “Thou shall not ask if a woman is pregnant.” They indicate a probable violation of law, but they do not necessarily constitute a violation of law.

Surely it is not illegal for a prospective employer to ask a former employer, “Is it true he wears ugly yellow ties?” or a former employer to tell a prospective employer, “We believe she wears the ugliest scarves this side of Milwaukee.” (No offense meant to my Milwaukian friends!) Those are personal comments, but entirely permissible ones; no legal violations there.

Likewise, a former employer might say to a prospective employer, “We want you to know he is an atheist, in fact, that is why we fired him.” Those words would not, in themselves, be a violation of any law, but they sure would indicate that, when they fired the employee for being an atheist, they violated the laws against religious discrimination. Again, the words, themselves, are not “illegal,” but they sure do indicate a violation of law has probably taken place.

And, a former employee can say, “That company puts poison in the food they process.” If he or she is wrong, though, he or she sure can expect a hefty lawsuit.

The message is this: In our society, words are rarely forbidden, but words might well prove that the speaker has violated the law. It’s for this reason that almost all employers have policies to strictly limit (a) what they ask about prospective employees, and (b) what they say about former employees. It’s these policies that limit questions and answers to (i) position, (ii) tenure, and (iii) compensation.

Hope that helps. I hope you’ll tell people nice things about me!! (Just kidding.)

Al Sklover

© 2009 Alan L. Sklover, All Rights Reserved.

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