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Employment law

employer as job reference

When a job applicant applies or interviews for a new job the prospective employer would often like to speak to the applicant’s current or former employer. But if the employee is still employed the prospective employer will likely cause the applicant to be fired or terminated by contacting the current employer and informing them the applicant is applying for a new job. A prospective employer interviewing an applicant might also expose itself to liability by contacting the applicant’s current employer—as well as damaging its reputation and ability to attract other qualified job applicants.

But a prospective employer may contact the former employer (or other reference) of an applicant. And the former employer (or reference person) may freely state truthful facts about the applicant—or state the former employer or reference’s opinion of the applicant—but cannot make false or untruthful statements of fact about the applicant. If a former employer or applicant makes false or untruthful statements of fact—statements that are provably false—the former employer or reference may be subject to liability for defamation (slander or libel).

In Texas, prospective employers must navigate the delicate situation of seeking information about job applicants without causing harm to the applicant's current employment status. It is generally considered risky for a prospective employer to contact an applicant's current employer, as this could lead to the applicant's termination and potentially expose the prospective employer to liability, as well as harm its reputation and future hiring prospects. However, contacting a former employer or other references is permissible. When providing information about an applicant, former employers or references are allowed to share truthful facts and their opinions. They must be careful not to make false statements, as doing so could result in a defamation lawsuit, which encompasses both slander (spoken defamation) and libel (written defamation). Texas law requires that any defamatory statements must be provably false to constitute defamation, and the person making the statements could be held liable if they damage the applicant's reputation or career.

Texas Statutes & Rules

Texas Civil Practice and Remedies Code, Section 73.001 - Defamation
This statute is relevant as it outlines the basic elements of a defamation claim, which includes making a false statement about an individual that is defamatory and published to a third party without legal excuse.

Under Texas law, a defamation action requires that the plaintiff prove the defendant: (1) published a statement; (2) that was defamatory concerning the plaintiff; (3) while acting with either negligence (if the matter is of public concern) or actual malice (if the matter is of private concern) regarding the truth of the statement. For a job applicant, a false statement made by a former employer to a prospective employer that damages the applicant's reputation could be grounds for a defamation claim.

Texas Civil Practice and Remedies Code, Section 73.002 - Slander
This statute is relevant as it addresses oral defamation, or slander, which could occur if a former employer speaks falsely and damagingly about an applicant to a prospective employer.

Slander involves oral defamatory statements. In the context of employment, if a former employer makes an oral statement to a prospective employer that is false and injurious to the reputation of the job applicant, the former employer could be liable for slander. The applicant would need to prove that the statement was false, made to a third party, and caused reputational damage.

Texas Civil Practice and Remedies Code, Section 73.005 - Privilege in Judicial and Official Proceedings
This statute is relevant as it provides certain privileges that protect individuals from defamation claims when statements are made in certain contexts, which does not typically include job references or employment inquiries.

Certain communications are privileged and thus protected from defamation claims if they occur in judicial or official proceedings. However, this privilege does not generally extend to communications between former and prospective employers regarding a job applicant. Therefore, a former employer is not protected by this privilege when providing a reference or information to a prospective employer, unless the communication falls within another specific privileged category.

Texas Civil Practice and Remedies Code, Section 73.006 - Consent as a Defense
This statute is relevant as it establishes consent as a defense to a defamation claim, which could be applicable if an applicant has agreed to allow the former employer to provide information to prospective employers.

If a job applicant has given consent to a former employer to share information with prospective employers, this consent may serve as a defense against a defamation claim. The former employer must show that the applicant consented to the release of the information and that the statements made were within the scope of the consent provided.

Texas Labor Code, Section 52.031 - Immunity from Civil Liability for Disclosure of Certain Information
This statute is relevant as it provides immunity to employers for disclosing certain information about current or former employees, unless the information is known to be false at the time of disclosure or is disclosed with malice or an intent to harm.

Texas law provides immunity to employers who disclose information about the job performance, qualifications, or conduct of a current or former employee to a prospective employer. The former employer must not act with malice or disclose information they know to be false. This immunity is designed to encourage employers to provide honest feedback without fear of legal repercussions, but it does not protect employers who make false or malicious statements.

Federal Statutes & Rules

Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq.
The FCRA governs how employers can obtain and use consumer reports, which can include background checks and reference checks from current or former employers.

The Fair Credit Reporting Act (FCRA) requires employers to obtain a job applicant's consent before seeking an applicant's credit report or other consumer report for employment purposes. If the report includes information from the applicant's current or former employer, the employer must follow specific procedures. These include providing the applicant with a notice that a report may be used, obtaining prior written consent, and giving the applicant a copy of the report and a summary of their rights under the FCRA before taking any adverse action based on the report. Failure to comply with FCRA requirements can result in legal liability for the employer.

Defamation Laws
Defamation laws are relevant when a former employer or reference makes false statements about an applicant that could harm the applicant's reputation or job prospects.

Defamation laws at the federal level are not as codified as state laws, but they establish the basic principles that apply to defamation, including slander and libel. Defamation involves making a false statement of fact to a third party that harms another's reputation. In the employment context, if a former employer makes a false statement about an applicant that is communicated to a prospective employer and causes harm, such as loss of a job opportunity, the former employer could be liable for defamation. The plaintiff must prove that the statement was false, made with at least negligence regarding its truth, communicated to others, and caused harm. Opinions are generally not actionable as defamation.

Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e et seq.
Title VII prohibits employment discrimination and may be relevant if a current employer takes adverse action against an employee for job searching.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees or applicants on the basis of race, color, religion, sex, or national origin. If an employee is terminated or otherwise discriminated against by their current employer for seeking new employment, and the action is based on one of these protected characteristics, it could constitute unlawful employment discrimination. For example, if an employer only terminates female employees for job searching but not male employees, this could be a violation of Title VII.

National Labor Relations Act (NLRA), 29 U.S.C. §§ 151–169
The NLRA protects employees who engage in concerted activities for mutual aid or protection, which could include discussing job opportunities with others.

The National Labor Relations Act (NLRA) protects the rights of employees to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. If an employee discusses job searching with co-workers or seeks to change jobs as part of a collective effort to improve working conditions, such activities may be protected under the NLRA. An employer who retaliates against an employee for engaging in these protected activities could be found in violation of the NLRA.