A reader worries that getting fired means not being able to get a new job, in the August 18, 2020 Ask The Headhunter Newsletter.

Question

firedIf a person has been fired from their job, does a prospective new employer have the right to contact the old employer and ask the reason for the end of employment? I’ve heard previous employers can only state the dates of employment, compensation, and nothing else, but wasn’t sure if that was really true. This is assuming the firing is for general performance reasons and nothing egregious or illegal (something like embezzlement, drugs, or violence). Thank you.

Nick’s Reply

You should assume the new potential employer is going to find out, whether it has the right or not. Before I explain why, let’s check in with Mark Carey, an employment attorney and Guest Voices contributor on Ask The Headhunter.

Were you fired?

Mark’s advice would depend on the specifics of your case, which we don’t know. But these are his general comments:

The new employer may ask about the reasons for termination, but the old employer is only obligated to provide name, title, years of service and maybe salary. Employers do not offer the reason for termination, as they are in fear of two possible claims.

First, if they say something knowingly untruthful about the employee they may get sued for defamation.

Second, if the new company hires based on the representations made by older employer, the new employer may sue for negligent hire against old employer based on what those representations were.

There is also the confidentiality of personnel matters pursuant to state law, so the employer will want to avoid divulging such information.

Plan for the worst if you got fired

Even if such a question about why you were fired is not right or legal, the new employer might ask anyway and your old employer may tell too much. Your only recourse might be legal action, and few people are willing to go that far.

That’s why my advice is to assume the worst and prepare to deal with it. Take it for a given that the new employer can find out why you were fired. I know HR managers who have wide circles of contact in the HR community. They can use back channels — ethical or not — to call one or another HR buddy who might easily find out about you on the q.t. The same goes for recruiters. You’ll never know why you were rejected.

What will they say?

Since you’re asking whether the new employer can and will find out from your old employer whether you were fired, I’ll offer some suggestions about how to ascertain what the new employer knows.

Take a direct approach. Call your old company and ask HR and your boss what they intend to say on a reference call. They might not tell you, but why not ask anyway? At the very least, you will have put the company on notice that you’re concerned and watching them.

Along these lines, attorney Carey offers this caution:

An old employer may state to the new employer that they do not recommend you for re-hire, as code for “this was a bad employee and be warned.”

Check indirectly. Do you know a friendly manager at a company you’re applying to anyway? If they’re going to check with your last employer, would they be willing to share with you what they learn, as a friend? Be careful – don’t use a ruse to get this information.

This article might be helpful: How can you fight bad references?

Keep in mind that the manager who interviews you may have been fired and have some bad references of their own. Full disclosure that your old boss had an issue with you about X may land on sympathetic ears. In other words, take the wind out of that sail yourself.

What to do

Control the game. Whatever happens, you must be ready well in advance to counter any negative comments with positive recommendations. More here: The Preemptive Reference.

So my advice is not to concern yourself so much with what a new employer can legally ask or not ask your old employer, unless you’re willing to pay for a legal action. My advice is to change the game entirely.

Change the game. I believe the most compelling way to deal with a black mark on your record (whether it is deserved or not) is to help the new employer focus on something more important: evidence about how you would do the job profitably. Show the new employer that what you can do matters more than any reference does. More about that in this video from an interview I did on Bloomberg TV: Profit-based job hunting & hiring.

I wish you the best.

How do you deal with getting fired when you apply for a new job? Do you try to hide it? Do you come clean? Ever been busted for not disclosing it?

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32 Comments
  1. Great Advice Nick!! Sometimes a new employer may not have to contact the old employer. With today’s social media blitz, sometimes your “Reputation” preceeds you.

  2. not to belittle Nick, I can tell that he has never been a head hunter and/or recruiter despite his claims to the contrary….all the candidate needs to say if asked his/her reason for leaving is “there was no room for professional growth and advancement” at the previous employer and leave it at that. It is a ‘canned’ response I know but it is what I have been trained to use in this case for over 25 years. Leave it at that, you may not be called back for a second or final but so be it, look for another role then. BV

    • When I was a hiring manager or HR Supervisor, I would (and did) follow that answer with, “Tell me about the situation.”

    • Perhaps then you should not stress yourself by visiting this website to read the opinions of such an incompetent who has been publishing extremely wise and practical advice related to job searching in excess of two decades.

    • Wait! Nick’s never been a recruiter? You mean to tell me that all these articles and all his public appearances on TV/radio/newspapers/internet/etc. are all just an elaborate hoax?

      Wow. I am shocked. I mean, he even established a company (https://www.northbridge.net/) to maintain the charade.

      Thank goodness we have random commenters on the internet to set us straight about these things. I almost fell for it!

  3. Providing a solid reference from a trusted co-worker or, better yet, someone who left the company before I did said volumes more about my value than any rant from the department of hire & release.

    Preserved relationships are more powerful than broken ones.

    Imagine the power in having a reference, someone you worked with at the previous company, say “If you don’t hire him I will!”

    • That’s exactly what I did when someone close to me was fired and asked me to write her resume in the aftermath. I got testimonial statements from some colleagues who best knew her work and added excerpts from those statements to her resume.

      She was hired on her first application.

      • @Tim: Nice work. The best answer to criticism is counter-evidence. Pretending the problem doesn’t exist doesn’t work. Nor does deflection.

  4. The more obvious question associated with this issue is; “When would such a question come up in the application process?”
    According to comments and such from previous posts, HR controls the early processes. As such, it depends on what level of experience the assigned HR person would take in reviewing/vetting the application. IF, as has been previously posted, HR initially looks for certain words, phrases, etc. to reject or advance an applicant, the probability factor his being terminated may not come up until later. Should the applicant state on their resume they were terminated, even low level HR personnel will red flag that application and render it to the trash bin. As such, it behoves the applicant to get creative on the resume and merely say something generic, as suggested by Bob Vissers. This becomes a test to determine how thorough HR will be in researching the applicant’s work history. Should the applicant advance to ultimately meeting with the hiring manager, that may be the time to address the issue. Let the hiring manager bring it up. This allows the applicant to sense the seriousness of the issue.
    Quite frankly, focusing or stressing about being fired is becoming more over-blown in today’s marketplace. More employers are overlooking terminations/firings because their own internal structure probably has encountered a similar situation. Reasons for termination range from serious (actual crimes) to somewhat trivial such as issues with co-workers, political stances, etc. Mid to large size companies deal with this on a regular basis and as such know first-hand most terminations are not related to job skill or performance. For this reason they look for other reasons to either hire or reject.
    I believe this person is stressing more on the termination issue than what he should. His focus should be on how to control the process as much as possible. There’s an adage that states, “He who controls the narrative, controls the outcome.” This person should prepare how to control the interview, should it occur, rather than act defensively out of fear.

  5. Only once when I’ve been asked “why did you leave your last job” did I answer “it didn’t work out”. Ironically, I got the job, which was a bad choice. I don’t get this that a job interview has to be a confessional. I’ve said “laid off” or “position was eliminated”, and “it is what it”, and if they wanted to hire me, they did. Less is more. End of discussion.

  6. Have worked for a # of companies…as to checking up on a previous employee it’s almost cast in steel. SOP about all you’ll get is confirmation of employment. No details on employment or termination thereof.
    Including references…that applies from the company or individuals within. Is it followed to the letter, no as individuals can choose to ignore it, but rarely do.

    An interview isn’t a confessional, but I usually walked through it oldest to newest.. how’d you get the job, why’d you leave the job. I appreciated honesty. sometimes people were terminated for “cause” Not a cause for alarm unless a felony was involved. Why isn’t a cause for alarm? From the inside I’ve seen my share of spiteful terminations, ego driven terminations, and stupid terminations.

    As to Nick’s claim to headhunting…if he’s faking it, for decades, he’s doing a marvelous job of it, and everyone who follows this blog, whether job seeker or hiring authority knows any accusations about his bonafides are BS.

  7. My previous employer was an oil company that folded due to long term incompetent management and dysfunctional decision processes. Long story short; after two years of frustration, I jumped as the company collapsed. The company was actually mocked among people in the business.

    So when I jumped, I actually grabbed the oxen by the horns and stated something like “I know, one is not supposed to talk negatively about previous employers in job interviews. But you all know the situation, so I can as well be honest and say that me and management there do not agree on some crucial issues, such as….”.

    May backfire, but also shows honesty, integrity and willingness to talk straight.

  8. Nick,

    This lawyer’s advice is not sound.

    Employers aren’t always stupid enough to shoot their mouth off about you to a stranger, after you’ve left. If they do that, and you haven’t used resources to capture and document it for eventual slander and/or bad light tort prosecution of that company, you’ve lost a golden opportunity. If the former employer is stupid but not a total moron, you’ve now tipped him off that that you might be planning retribution or harassment.

    In the absence of you being caught in the act of doing something obviously illegal or grossly immoral, with publicly available documentation and consequences, there is absolutely no reason to provide any information about the details of why your past employment may have been terminated. Nothing can be gained by providing anything less that positive information on an application for employment. Your positive perspective on leaving the company is what’s called for, nothing more.

    And don’t forget that employment termination agreements (if you’ve signed any) will probably require putting a positive spin on what may have been a horrible employment experience. Even if you did do something that justified a termination for cause, a non-disclosure agreement you may have signed will prohibit you from disclosing anything about it or the (former) company.

    There is nothing you can do in advance that can “fight” a bad reference (in the context of an interview or employment application). Everything that we’ve (collectively) been recommending about maintaining a positive attitude and only discussing issues (in an interview) in a positive way are what you can use.

    If questions keep digging into negative issues, the prospective employer is probably not on the level and the job opportunity might not even exist. As an example, if you see bogus questions about salary history (illegal in some states and cities), present and former supervisor names and contact info for references (are you kidding?), and check boxes for past felony conviction (illegal in some states, but may be asked much later in the recruitment process); are red flags.

    An interviewer who has been given confidential negative information about your past will not be listening to anything you have to say that doesn’t confirm what he thinks he has. Save your sales pitch (a good strategy that Nick recommends, but I don’t think it’s appropriate for this instance) for a prospective employer is really listening to you. If it comes to this, never ever argue with an interviewer.

    When this happens, don’t give up, but (if interviewing) listen carefully to the questions being asked as well as casual remarks the interviewer might say. One of those pieces of information might give you a clue to where they were coming from, and possibly, who they might have spoken with who might have passed along a little piece of negative information about you.

  9. Here’s the perspective of a small staffing firm, filling temp-to-perm general/skilled labor positions. In other words, we are often talking to people who haven’t worked in a more professional environment, although much of this would apply to professional positions.

    We are going to dig deep with a job seeker on why they left their previous role. “It is what it is” would not fly with us. Why?

    1) It’s not what they say, it’s how they say it. Oftentimes the job seeker relays only the worst parts of the story in an effort to be brief. We dig so we can really understand and then offer coaching about how to frame the truth briefly – yet positively and appropriately.

    2) We are looking for patterns. If someone has been fired from several jobs because their bosses are all idiots, we know two things: A) there’s a strong possibility that they struggle with interpersonal relationships and feedback, and B) we need to be careful about potential employers so they can be in an environment where they are more likely to succeed. (That’s in addition to the coaching.)

    Don’t avoid the topic and don’t lie. Have a brief-yet-positive-and-grounded-in-truth story. Then make it irrelevant: I absolutely endorse the idea of controlling (offer great references instead) and changing (focus on how you will add value).

    And the idea that Nick doesn’t know what he’s talking about. Pshaw!

    • LOL, last sentence of the penultimate paragraph was meant to be “controlling (offer great references instead) and changing (focus on how you will add value) the narrative.” That makes a bit more sense!

    • Annette,

      I’m sure you think you mean well, but your first statement about “temp to perm” already tips us off that you’re a low class act. No credible recruiters pull this routine unless if their clients are strictly bottom-of-the-barrel.

      In the context of the “temp to perm” scam, you have no right to “dig deep” into anything. In the absence of a bank teller, body guard, or other position that requires a specific kind of moral character, you have no right to “dig” into anything. An employer who requires “temp to perm” typically tries to trick potential employees into abandoning their rights to unemployment insurance, just so the employer doesn’t have to pay for contributions or for an eventual unemployment claim if the job didn’t work out.

      The nasty part that new job seekers discover is that if they do the best they can, and leap over all the hurdles that an employment recruiter may throw at them, after three or more months of excellent performance, and appropriate promises of performance awards, they can find themselves out on the street with no benefits or recourse against anyone.

      So, Annette, is your firm, and client(s), worth all this trouble? Will you compensate a job-seeker who jumps through your hoops, performs above and beyond your requirements, but still ends up burned with the “temp to perm” routine?

      • Hi Steve,

        I understand your distrust because there are a lot of creeps in this business who do not have the best interest of the job seeker at heart. You don’t know me, I get it, so you have no reason to trust me. I offer the following:

        I bought this business with the specific intent of putting the job seeker first. We work with small employers who can’t afford recruiters, advertising, or developing a good hiring program and for whom the temp-to-perm route is the only way they can afford to pay for these services.

        We go out of our way to contact employers when they are near the 90-day mark with an employee and when they hire someone on, we deliver a sheet cake to congratulate that employee.

        There are some circumstances, like with landscaping, where the job will end after 5-6 months and they aren’t hired on. In those instances, we do offer healthcare to the employee.

        In fact, just this afternoon I received the following message from someone on Facebook: “You save my life out of debts and I don’t think I could ever tell you how much you mean to me, I will keep telling people about your good work and your platform.”

        Good people exist out there and I hope you have the opportunity to encounter more of them.

        Have a great evening.

        • Annette,

          Those are some interesting anecdotes, but you haven’t addressed the issues I raised.

          Short term engagements, like landscaping, are not “temp to perm.” They can be 1099 on and off, but that is not where the contract-to-perm offers usually enter into the equation.

          Celebrating a job candidate’s 90 day anniversary can be great, but there’s nothing special that sets that apart from contract-to-perm, and conventional W2 employment, with the exception of zero benefits. You appear to be boasting about an accomplishment, but you just denied a jobseeker (at least) 3 months of social security contributions and unemployment coverage. Is that what you think of, “putting the jobseeker first?” How do you sleep at night?

          I have zero sympathy for, “small employers who can’t afford recruiters, advertising, or developing good hiring programs.” Conventional employment in the US doesn’t require recruiters, but (sometimes) advertising and the entire hiring process requires commitment and compliance with the law (with deadlines and fines for non-compliance). If they can’t do that, then they are most likely incompetent business managers and should turn off the lights and go home.

          So, in your world, when the employer refuses to pay to manage the hiring process, then the jobseeker must? Are you serious?

          • Steve,

            I’m going to start with the easiest question first: unemployment, social security, and Medicare contributions. Not sure why you think a temporary employee is not eligible for unemployment benefits, but they are and I’ve paid A LOT in the past few months. And both employer and employee contributions for social security and Medicare must be paid for any employee. We aren’t exempt from that.

            You might have “zero sympathy” for those small employers who do not have the resources for recruiting and I’ll excuse you for that because you likely also have little experience being a small employer that struggles to have the resources for many things that are easier for larger employers. And guess what – those larger employers still struggle with hiring properly. If they didn’t, I doubt Nick’s column would be so popular and helpful for so many years.

            About the landscaping – I agree it’s not temp-to-perm, I made that point. It would be less expensive for the employer to 1099 those individuals and then they would A) be at risk of fines because these are actually doing work that is defined as an employee by our state, B) these employees would not accrue social security, Medicare, or unemployment insurance, and C) they would not be eligible for an employer-sponsored healthcare plan, on which we are mandated to pay part of the premiums.

            Again, there are predatory staffing firms out there who pull employees and reassign them on the 75th day, or they don’t alert employers when their 90 days are up, or they charge a fee to employees for finding them jobs. I’m certainly not ignoring those and it makes our job tougher.

            I do sleep well at night, though, because I know the value I provide and the degree to which we truly help people get good paying jobs.

            I’m sorry you are so angry and I hope you have a great day.

            • Annette,

              I don’t think we’re on the same page on “temp to perm.” In our (jobseeker) world, that means temp (1099) to perm (W2). The “temp” part includes a specific promise that a successful “temp” engagement may likely lead to a successful W2 (permanent) career. I’ve been both (1099 and W2) but never in a “temp to perm” scenario (my choice, and always direct to the employer).

              There can be no employer generated social security, unemployment, or Medicare contributions with a 1099 (contract). The individual is simply paid a contract amount and the rest is up to the individual to settle with the IRS (i.e. quarterly estimated tax). The individual has to budget and pay their tax liabilities, as well as any health insurance and/or medical expenses as needed. It’s a very orderly system, and works well for some people. It also means a typically higher pay rate for the employer, since the assumption is that the individual must buy and pay for the benefits, themselves, that the employer would otherwise buy and provide for conventional employees.

              The insidious part comes when the individual finds that the (promised) 3 months as temp (contract) turns into 5, 6, 7, months, year or more (continued contract), when the employer decides to reneg on his end of the deal. This is where the individual finds out he’s been taken advantage of, and may be out of a job with zero notice and zero benefits. 1099 (contract) individuals typically have no rights to unemployment insurance, so they’re out in the cold, so to speak. They would have no source of income until they find another contract or conventional employment engagement.

              If that’s not what you meant, then you’re merely describing normal employment (with a typical probationary period), and I apologize. But you must stop using the expression “temp-to-perm,” since that suggests a very different (and often nasty) scenario.

          • What’s with the attitude? You must of had some pretty bad experience in the employment realm. Shake the attitude and look forward.

      • Kudos to Annette for a very temperate reply.

        I have gotten two good, benefitted, full-time jobs through the temp-to-perm route. It worked very well for everyone involved.

        • Ditto. As a recruiter took a # of people from contract to perm

      • Steve,
        You hit the nail on the head with temp agencies.
        This lady can extoll perceived virtues about her industry, but bottom line, they prey on “down on your luck” or “problematic employees”.
        I’ve spent many years in some rough industries (scrap metal recycling, weld/metal fabrication, etc.). Typically, you end up with some hard luck cases, or problematic cases, but I’ve seen few “temp to permanent” cases. Also, let’s say a job pays $20 per hour. The temp received $10 per hour doing the same job. If the temp is offered permanent employment, do they offer he/she $20 per hour? No. They continue at $10 per hour, and I can mostly testify that they will stay at $10 per hour for the entire tenure of their employment. The temp agency will try to bait them with “you’ll get benefits” now.
        Further, as has been pointed out, both the employer, and the temp agency, are off the hook for UI.
        Bottom line, the temp agencies, and the shady employers, are the winners.

        • Hi Antonio,

          I’ve been reading your responses for a number of months now and I know you are jaded, probably with good reason based on your personal experience. I’m sorry that life hasn’t been kind to you. I’m not extolling the virtues of my industry, but pointing out that there are decent staffing agencies out there that care about job seekers.

          I don’t know where you live, but A) I’ve never seen anywhere close to 2x markups – I wish that’s what an employer would pay! And B) that’s not how the compensation works for employees, at least not with our employers. If a job pays $20, then the employee is going to make $20. Regardless, very few of our employers pay anything less than $14. Most are in the $15-$17 range for general or low-skill labor in our area.

          Finally, I’m not sure why you think agencies aren’t paying payroll taxes. That would be illegal and is not true. As I mentioned to Steve above, we’ve paid A LOT in unemployment over the past few months and all proper employee and employer contributions to social security and Medicare are made.

          I really do hope life treats you better going forward!

          • Antonio is another one that can’t shake his troubled past. Sad

            • And Dave you’re another one who can’t throw in your two cents with the editors blessings on top of it.

          • And I’ve been reading your replies to Steve, and after several, you’re making little justification in what Steve aptly points out as your industry as low shelf. I’ve faced more aberrant employers than most, but I’m alive, 6 foot above ground, a call a spade a spade. I don’t do rainbows and unicorns as you and ole Dave do on here, and I see zero value of temp agencies preying on the less fortunate.

    • A general rule? :

      If one or two of your previous bosses were jerks – fine, can happen to everyone.

      If all of your previous bosses were jerks – especially if the positions lasted only a short time – you are probably the real jerk.

  10. Yes if your current boss wants to trace your previous job

  11. I work in an industry where everyone seems to know everyone else. I have never been fired, but I probably wouldn’t disclose it directly if I were. However, I would also assume that any job I am applying for the hiring manager would find out. And they would not call for an official reference check – it would be a personal, off the record phone call. Or a discussion over a beer. If there was a bad reference, there would never be a paper trail. I completely agree with Nick – whether the new company has a right to find out or not is irrelevant. And counter-evidence, as Nick mentioned in one of the replies, is the best ammunition against a bad reference.

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