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