Dealing with a bad reference

This page represents a personal opinion and no responsibility can be accepted.

Updated August 2005

The bully is a vindictive individual who never misses an opportunity to cause distress to their target. Often this will continue after the target has left their job.

Is there any case law I can quote?

Most people need a reference for their new job, and most employers insist on contacting the previous employer regardless of the references supplied. The bully seizes this opportunity to cause further distress and gives a bad reference. There have been a couple of successful court cases in the UK for bad references: see action/caselaw.htm under the section "Case law - Job References". The cases in particular are Spring v. Corinium and Guardian Assurance plc, and Coote v. Granada Hospitality. Whatever country you're in, it's worth familiarising yourself with the principles in these cases. See also the article Perot contests email archive trawl in £2m defamation case.

How can I prove the bully is continuing to defame me?

It's difficult to counter this behaviour but if you believe you are being defamed in this way here's one suggestion. Get a friend or family member (preferably female) to act as a job agency. Obtain a recording device for the telephone. Ring up the bully and say, for example, "This is Deborah Smith at Acme Jobs. I'm handling a job application for Mr Brown and I'm just ringing his previous employer for a quick reference. Can you verify for us that he did in fact work for you and that his job performance was satisfactory?" The bully is unlikely to be able to resist this opportunity and if the reference is defamatory you can then engage the services of a solicitor. Make copies of the tape and transcribe it before taking action.

How do I explain to a prospective employer a long period of sickness absence or unemployment?

This is a difficult one - it depends on who the employer is and their degree of sympathy towards the issue of bullying. If they're dismissive of your experience, you could save yourself a lot of grief by not walking into another toxic environment. Alternatively you could put a positive spin on it and say you felt you had achieved everything you could with your former employer and that there were no further opportunities available. You felt the need to take some time out to reflect on your career direction and that you now want the opportunity to gain experience with a new company in an environment which offers you a challenge etc etc.

Links

Published in Employment Law Journal, Legalese, issue 2: References: Good, Bad or Indifferent?

US-based reference checking companies (I can't vouch for these): http://www.myreferences.com/default.asp and http://www.jobreference.com/ and http://www.badreferences.com/

Articles in Personnel Today:
http://www.personneltoday.com/Articles/2001/07/24/8710/References.htm
http://www.personneltoday.com/Articles/2000/08/08/2242/References.htm

Article from ABCnews website in the USA, June/July 2004

Snooping For Smears
Ex-Employers Can Keep Workers Out of Jobs With Bad References

By Jennifer LeClaire
June 29, 2004

After submitting dozens of résumés to potential employers and getting no response, Paul became suspicious about what his former employer was saying about him.

The New Jersey bank manager, who asked that his full name not be used, hired a detective to find out. He soon discovered that the old boss wasn't saying a word.

"I was laid off after a corporate merger, but the bank refused to respond to requests for a reference by potential employers," says Paul, a 25-year industry veteran. "No one in the banking industry would hire me without a reference, so I finally had to get a job as a substitute school teacher to pay the bills."

What Paul experienced was a little-used, yet effective smear tactic, says Michael Rankin, chief service officer for Documented Reference Check Inc. (DRC) of Diamond Bar, California, one of the biggest companies in the field.

"Devious ex-employers can blow you out of the job market by refusing to respond," he says. "Potential employers can't hire non-verified applicants without risk of leaving themselves wide open for a negligent hiring suit."

Suing For Defamation

Paul took his former employer to court, eventually settling for an undisclosed sum.

Like Paul, thousands of people are turning to "career detectives" to discover what their ex-bosses are saying - or not saying - about them. And since most states allow people to sue over bad references if they can prove that defamation hindered subsequent employment, reference-checking has become big business.

Several companies including Referencesetc.com, Badreferences.com, and Jobreferences.com report a rise in business. DRC subsidiary Badreferences.com, for one, sees a 5 percent increase in business for every 1 percent increase in the unemployment rate. At $50 to $90 a pop to call former employers for references, that equals big bucks for career detectives. On the flip side, pressure from these companies makes employers even less willing to give references, making it difficult for workers looking for new jobs.

"More than a half a dozen reference-checking companies have sprouted up on the Internet in recent years, and it's a growing industry," says attorney Scott Witlin, partner at Proskauer Rose LLP in Los Angeles. "These opportunistic companies are seemingly fomenting litigation by soliciting references and using court reporters to transcribe
everything that is said so it can be used in the courtroom."

Of course, these companies couldn't survive if there weren't a demand for their services. So the rise in reference-checking companies raises the question: Are employees just being paranoid?

Bad References on the Rise

Not according to an annual DRC survey that examined 1,000 of its 4,000 average monthly client reports. The company documented negative responses from 38 percent of its investigations - a 3 percent increase over last year's study.

While there is no law against giving subjective references, most attorneys advise firms not to offer anything but title and dates of employment.

"It's not worth the risk of litigation," says Jonathan Wilson, chairman of the labor and employment law section of Haynes and Boone LLP in Dallas. Wilson says fired workers are winning million-dollar defamation lawsuits against former employers who allegedly gave bad references.

Despite the increase in reference-related defamation suits, 39 percent of employers still provide more than the neutral dates of employment and job title, according to the DRC study. Nine percent had inaccurate records and another 6 percent refused to respond. The study also revealed that businesses in Texas were most likely to defame an employee, followed by companies in California and New York.

Some reference detectives are still surprised at how angry some bosses get at former employees. "People are vindictive," says Heidi Allison, a partner in the reference-checking company Allison & Taylor Inc., the parent company to Jobreferences.com. "Sometimes they let their emotions take over and say things that they shouldn't." 

Allison recalls one client who was dating her boss and decided to break up with him. So he made her worklife miserable until she eventually quit. The old boss spoke in a friendly manner to reference checkers but then ended the calls by saying "It's too bad she's dyslexic" - which was not true.

Allison says other ex-bosses put the reference checker on hold, saying, "let me get the file and see what I can legally say about this case," which gives the impression that the worker sued the former employer - a move that typically scares off potential employers.

Reference-checking companies sometimes send threatening letters to the old bosses demanding that they cease and desist with the libelous comments. Others refer clients to attorneys who use the documented reports as a basis for defamation suits.

Legal experts say fired workers are on a winning streak with lawsuits against former employers and this new wave of defamation suits over bad references is having a chilling effect on human resource departments.

"Unfortunately, most companies won't give references anymore," says attorney Matthew Grabell, principal of Grabell Associates LLP in Hackensack, New Jersey. "Employers are backed into a corner for fear of these defamation suits and that hurts good employees who need a reference to find their next job."

Links at Bully OnLine

General advice on action to tackle bullying: action/index.htm

These pages are unreferenced at Bully OnLine:

Preparing for an employment tribunal: action/tribunal.htm

Phrases and strategies to tackle bullying: action/words.htm

Informing your employer that bullying is causing stress: action/inform.htm

Advice on dealing with gagging clauses: action/gagclaus.htm

Phrases and strategies for employers to tackle bullying: action/empwords.htm

Beware! Some lawyers, advocates and consultants are not what they seem (not referenced at Bully OnLine): action/lawyer.htm

Tim Field
Webmaster, Bully OnLine at Bully Online
Moderator, BullyOnline action forum
Author, Bully in sight: how to predict, resist, challenge and combat workplace bullying
Co-author, Bullycide: death at playtime
Publisher, Post Traumatic Stress Disorder; the invisible injury, 2001 edition