A lot of job seekers usually wonder about what a potential employer can ask their former employers.
Can they ask your former employer to disclose details about your job performance? Are there any limits to what a former employer can say about you?
To help us understand, we asked experts to share their insights.
Let’s find out:
Table of Contents
- A potential employer in California can generally ask a former employer any question about a prospective employee
- As outlined above, there are no laws restricting what potential employers can ask former employers
- In general, potential employers can ask former employers anything they want
- A former employer can tell a potential employer anything as long as the information is factual and correct
- Still, most companies prefer to only provide general information
- You can inquire about the details of previous employment
- You can ask for their general opinion about this employee
- If you sense the negativity, it is okay to inquire further
- It really depends on the state quite frankly as laws differ in each
- A potential new employer can ask the old employer almost anything
- The dependability of the candidate
- Best working conditions
- Weaknesses and strengths
- A past employer can tell a potential employer anything they want, providing what they say is the truth
HarperCollins Leadership Author | Founder & Executive Director, Professionals In Transition
Legally, potential employers can ask former employers about:
- Employee start date/end date.
- Reason for leaving.
- “Would you rehire? Why/Why Not?” (This may or may not be allowed depending on their company HR policies)
- “Was the former employee a safety risk?”
Sometimes other questions are posed but not answered (because of in house HR procedures, or fear of lawsuit) including:
- “Does he or she meet deadlines?”
- “Is this employee on time at work?”
- “Does this employee work well with others?”
- “Is he/she honest?”
- “Does this employee exude good or bad attitude?”
Below are some questions sometimes asked that are borderline:
- Pre-existing health issues.
- Marital status.
- “Does she have young children?”
- Level of education.
Federal Law prohibits asking about:
An astute HR professional may take a reference check one step further by calling the former employees boss; or former, former boss at another company; vendor; or coworker.
They do this betting on the fact that many are not aware of restrictions and may talk freely…That’s why I always train my folks to stay in control of the process at all times by updating them; while feeding & nourishing your references throughout your job search campaign.
Some of the valid questions include the following:
“Why has the employee been fired or terminated?”
Some states such as California and Florida allow former employers to disclose reasons for termination so that background checks can be performed.
This is also important to assess whether a candidate can fit in your organizational culture. However, remember that some reasons for firing are subjective so be careful when interpreting the reasons behind it.
“Can you tell me about his/her job performance during his tenure?”
This offers a glimpse as to whether the candidate has left his previous job in good terms. Typically, employees that leave their companies but have made a huge mark in the workplace will always have people who can attest to their admirable job performance.
“Can you tell me about his professional conduct?”
This helps prospective employers get a good insight into what the candidate’s former colleagues think about his workplace attitude, demeanor, and behavior.
“What is his/her role in the organization?”
This allows the employer to assess whether the candidate is indeed truthful in terms of the information he or she has written on the resume and what he or she stated during the interview.
This can also help you assess whether or not they are more likely to perform in the role that you are offering.
“Has he or she violated any law?”
This question is valid in Delaware, Florida, Georgia, and West Virginia. Any industry-related law or regulation that has been in the knowledge of enforcing authorities or offices can be disclosed to an inquiring employer provided that it is within the limits set by the law.
For instance in West Virginia, this only applies to banks and financial institutions.
Cynthia Hackler Flynn, Esq.
Founder and Managing Partner, Hackler Flynn & Associates
A potential employer in California can generally ask a former employer any question about a prospective employee
However, you may be hard-pressed to find a former employer who will answer any questions beyond confirming job title, dates of employed, documented departure reason, and whether they would rehire. The reason is simple. Fear of litigation.
California employers have “qualified privilege” when providing reference information to potential employers.
This privilege provides employers with liability protection. However, qualified privilege has limits. The information provided cannot be false or made with malice.
Qualified privilege does not protect information disclosed about the employee protected activities (i.e. speech activities, union, etc.). Nor does it protect information disclosed that is a breach of contract between a former employer and employee (i.e. non-disparagement clause).
California case law can subject former employers with liability for offering misleading reference information.
For example, giving a great reference for an employee who has numerous sexual misconduct complaints. If the employee is hired and is accused of sexual misconduct at the new workplace, the former employer opens themselves up to potential litigation.
Although a former employer has no obligation to provide detailed reference information, once they do so, there is a duty not to misrepresent.
As outlined above, there are no laws restricting what potential employers can ask former employers
However, there may be legal consequences, depending on the questions. For example, if a potential employer asks questions about federally protected classes (i.e. race, color, religion, sex, national origin, and age). Asking about protected classes and making hiring decisions based on that information is unlawful and may lead to liability.
Although a potential employer in California can generally ask a former employer any question about a prospective employee, it is hard to get beyond the basics.
Even if you are able to get beyond the basics, potential employers need to be careful to ask questions that do not land them in liability trouble.
David Miklas, P.A.
Labor and Employment Lawyer | Founder, Law Office of David Miklas, P.A.
In general, potential employers can ask former employers anything they want
However, many employers are afraid of lawsuits for such things as discrimination or retaliation (e.g. blackballing the worker) or defamation. Therefore, many businesses will only provide the employee’s job position and dates of employment, and possibly whether or not that individual is eligible for re-hire.
This results in potential employers hiring workers who have a history of poor performance.
Some states, such as Florida, have created laws to protect employers from being sued for giving negative job references.
Specifically, Florida Statute §768.095 provides employers immunity from liability if they disclose information about a former or current employee to a prospective employer upon request of the prospective employer.
This is immunity from civil liability for such disclosure or its consequences unless it is shown by clear and convincing evidence that the information disclosed by the former or current employer was knowingly false or violated any civil rights of the former or current employee.
Managing Director, Synergy Business Brokers
There is an anecdotal belief that has circulated nationwide for at least the last ten years, that says a former employer can only offer dates of employment and that they are further prohibited from saying anything about the applicant that paints them in an unfavorable light, even if the statements are true. This is most certainly not the case.
A former employer can tell a potential employer anything as long as the information is factual and correct
Under federal law, there is nothing to prevent a former employer from saying whatever they care to tell about people who worked for them and left, even if under less than ideal circumstances. If the applicant was fired, they may say so, as well as being free to disclose the reason for the termination.
Under most state guidelines, most employers are also welcome to offer general opinions as to the worker’s overall performance. This is where standards can become a little murky.
Defamation laws include libel and slander, and an unfavorable review concerning a former employee could be actionable on those grounds, even if there is no legal basis for the suit.
Still, most companies prefer to only provide general information
Most companies would prefer to offer only the most general information about employees who were terminated for cause, namely when they worked there and when they left, if only because being sued, despite the suit having no merit is still a lawsuit and can have repercussions for the company in terms of public image and investor confidence.
If an employee was terminated and wishes to know what that employer will say if contacted, the simplest way is to reach out to the employer and ask.
Depending on the level of bad feeling between the employer and the terminated worker, this might be an uncomfortable encounter. Perhaps the worker could reach out to someone else at the company to broach the issue on their behalf or for a reference.
The one thing the worker should not do is assume the company will only offer basic details on a reference if the separation wasn’t amicable. Failing efforts to resolve the issue of unfavorable or disputed information, it might be better to leave that job off of their resume or request that the employer not be contacted.
Recruiter, IronMonk Solutions
“How well did the candidate fit in with the team?”
The answer to this question can be subjective but people’s first impressions matter and their lasting impressions matter. Team chemistry is crucial to accomplishing goals on a day-to-day basis and the longer-term goals of the organization as well.
“What key performance indicators was the candidate required to hit? How well did they perform?”
This is a big question because at the end of the day any job whether it’s creative, sales-oriented, or production-oriented will have key performance indicators. Numbers don’t lie.
You could also ask a variety of other questions:
- “How often did the candidate call in sick?”
- “What would you say makes the candidates stand out?”
- “How does the candidate react to stress?”
- “Would you say the candidate is a self-starter?”
- “Do they show up on time?”
- “Did they show interest in growing their career with you?”
- “Why did they leave?”
These questions are also very important. It provides clarity on whether or not the candidate was let go, and it may also provide insight as to what their career goals actually are.
“Would you rehire them again?”
In business, they say that even if people tell you that you are doing a good job, the ultimate compliment is defined by whether or not people choose to keep giving you their money. Asking a manager if they would rehire the candidate again forces him to think in that frame of mind.
VP People and Co-Founder, Zety
Although checking on a job candidate with a previous employer is a common practice, HR managers should know what they’re allowed to ask about without crossing the line or putting the previous employer in an awkward situation.
You can inquire about the details of previous employment
The position candidate held or a progression path and the dates of employment. This is purely for the verification process and to see if the information stated in the candidate’s resume is correct.
You can ask for their general opinion about this employee
“Did this person achieve work targets?”, “Was the employee a team player?” , “Would you consider hiring this person again?”, “Would you recommend this person to a new employer?”.
If you sense the negativity, it is okay to inquire further
You can ask previous employers why they would not recommend this candidate for another job. Be respectful, though, and don’t pull their tongues. Some information might be confidential, or the employer might feel it’s too much information to ask for.
HR Manager, ResumeLab
Before extending a job offer to a candidate, most employers will want to run a reference check and reach out to their former employer.
Importantly, references are not be-all-and-end-all ingredients that predetermine if you’ll get hired. That said, if your former employer can vouch for you, it might tip the scales in your favor.
The idea behind checking references is not to dig for dirt.
Everyone has skeletons in their closet. Employers just want to understand the spectrum from good to bad. Also, they want to make sure that the candidate is an excellent cultural fit and that they have the aptitude to help the company reach its true north. As a result, employers’ questions revolve around these two goals.
Here are some questions they might ask and why:
- “How was [John] perceived by other team members?” It helps gauge what the person was like to work with in general.
- “Would you be more or less excited if you were to work with [John] again?” It helps understand if the reference is generally found of the candidate on a professional level.
- “Is there something I did not ask that you would like me to know about [John]?” It helps further develop the conversation and uncover some potential hiccups.
HR Partner, My Perfect Resume
It really depends on the state quite frankly as laws differ in each
In most, the employer can go quite far in sharing “their perspective” on your work ethic, performance, accomplishments, and reason for you leaving the company. Thus, it literally pays to be honest here.
At the same time, in an era where many are more than happy to sue for libel and slander, most employers don’t want to deal with even the remote possibility of such a headache. Thus, they err on the conservative side and stick to the most objective, impartial, quantitative facts.
This often means that they’ll only confirm the start and end dates and the title an employee held at the given organization.
Indeed, it is strange, as most of the time your sugarcoating will not come back to bite you, however, grossly falsifying your resume and accomplishments can be a very slippery slope that can get you blacklisted at a given organization in a hurry. As they say, honesty is the best policy.
Chief Resume Strategist | Founder, Thrive! Resumes
A potential new employer can ask the old employer almost anything
However, most well-managed mid-sized or larger U.S. businesses impose severe limits on the questions they will answer about past employees. That’s because in the past some candidates have won lawsuits against past employers over negative references, even when every word of the reference was true.
Most companies will only confirm (not volunteer) the dates of employment and job title. Others will confirm the salary paid, although this is unlawful in some states.
The key question some employers will answer:
“Is this candidate eligible for rehire at your company?”
That’s basically a yes or no review of the candidate’s overall performance. Because someone who was fired for cause will not be for rehire, and many companies are willing to share this information.
Assistant HR manager | Financial Analyst | Currency Trader, Mitrade
The most obvious query that a potential employer will ask a former employer is whether they know the candidate that used them as a reference.
This is the initial question that opens up all the other possible queries. If the former employer acknowledges knowing them, then the new employer can proceed to ask things like:
The dependability of the candidate
Employers prefer having employees with experience because at least they can gauge their dependability on top of other things.
As such, a new employee will definitely want to know the type of person that they are about to employ. Therefore, they will ask about how dependable this person in when responsibilities are allocated to them.
Best working conditions
Next, an employer would like to know under which conditions their potential employee performs best.
This is a good evaluation point to know whether the new person will find their new workplace conducive or not. Since the employer knows their work stations well, they can use this info to decide whether to hire the candidate.
Weaknesses and strengths
These traits are always asked directly to the candidates, but, asking a former employer acts as a more reliable source for the truth.
An employer should perceive an employee as an asset whose SWOT analysis must be evaluated so they can know how to best optimize them for maximum productivity. Therefore, knowing the strengths and weaknesses of a candidate will help in evaluating their suitability for the job.
The main purpose of having a referee’s contact in the curriculum vitae is to have a point of reference where more info about you can be found. In light of this, a potential employer can ask the former employer whether the candidate is eligible for rehiring.
“Do you recommend this person?”
A former employee holds the destiny of a candidate, thus, the quality of their response to this question determines to a large extent the future of the candidate.
Benjamin K. Walker
Founder & CEO, Transcription Outsourcing, LLC
Unfortunately, as a business owner, it is very difficult to answer a lot of the questions we get from other businesses that call us as a reference for a former employee or independent contractor.
I want to tell them what a great person they were or how horrible they were to work with and we forced them to leave, but I can’t because I could get sued.
If they are asking a ton of questions I can’t give honest answers to I steer them toward the three questions we ask when we are calling to get more information about a potential new hire.
“Did they break any laws that you are aware of when you worked with them?”
We run criminal background checks on everyone who works here so we have to know this upfront if possible.
“Did people like working with them? Were they a team player?”
“Are they eligible for rehire, or would you hire them back if they wanted to work for you again?”
This last question will answer almost everything you need to know as it really puts them on the spot and will tell you a lot of how they left their former place of work.
If they wouldn’t hire them back, why would I want to hire them?
It’s not complicated or fancy, three very direct and easy to answer yes or no questions. If they want to expand on their answers let them, so pause and don’t speak for a few extra seconds after they answer yes or no. If they tell you something great or not, you haven’t lost anything and can go onto the next question.
Mark J. Strohl, CPA
Founder, Protax Consulting
A past employer can tell a potential employer anything they want, providing what they say is the truth
That includes past performance factors like punctuality, effort, and attitude. There are no federal laws that forbid them from telling an employer that an employee was fired, and why.
Because of defamation laws, a previous employee may steer clear of anything that might be construed as slanderous, even if the statement is true.
Lawsuit concerns will usually lead an employer to only confirm dates of employment, position, and where applicable, salary.
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