What do you do if a former employer is bad-mouthing you?

You can’t seem to get a job offer. It’s not that you:

- Are looking in a dying field.

- Aren’t well-qualified.

- Don’t interview well.

- Hand out a poor resume and cover letter.

- Fail to send thank-you notes or keep working your network.

Then a potential employer discloses that a former boss is making negative statements about you.

Is a former employer allowed to make negative statements about you?

“Generally speaking,” says Scott Hardy, director in the Pittsburgh law firm Cohen & Grigsby, “employers may provide job references (good, bad, neutral, detailed, vague, etc.) to a current or former employee's prospective employer(s). Some states offer specific protection to employers when providing legitimate references, and certain other states provide limited protection to employers who do so.”

Kenneth Sparks, partner at Chicago’s Vedder Price, points out the importance of knowing that "some states have laws that shield employers . . . who act in good faith, whether the references are good or bad."

Alternatives

What alternatives do you have to redress a bad reference? Consider confronting the former boss directly. If that doesn’t work or you can’t do so, “Go directly to the HR department,” suggests Sparks. “They’ll be very careful to correct misstatements. Ask them to correct and retract a statement if it was false.”

Melinda Riechert, partner at the Morgan Lewis Palo Alto office, recommends going one step further -- possibly to the legal department. In any case, she recommends “writ(ing) a letter that states, ‘It has come to my attention that Mr. So-and-So is saying negative things about me. If he doesn’t stop, I’ll be forced to get legal counsel.’”           
Meanwhile, what else can you do? “Many states have statutes requiring an employer to release a copy of a former employee’s personnel file,” Sparks says. “If you have a good track record with good performance reviews, offer the potential employer copies of several performance reviews.” Of course, if you don’t have them, you may be asked why not; so be ready. “It’s a great game of ‘Clue’ trying to figure out who did what to whom,” he quips.

A third alternative, of course, is suing, but you have to find an attorney to take the case.  Hunting for a good attorney is the same as hunting for a job. You have to dig and dig. Ask your current attorney for a referral to an employment law specialist. If his only contacts are attorneys who work with companies, not individuals, keep asking around, because this group will know one who sits on the other side of the table. A few attorneys do both.

If you don’t have an attorney, find someone who does. If that person’s specialty isn’t employment law, ask for a referral. Again. And again. And again. There are lots of attorneys working out of tiny, invisible offices, including those at home. Small doesn’t necessarily mean ineffective.

How High A Price?

Is this the way you really want to spend your time? Even if you find a person who will take the case on contingency, are you ready to turn your entire world upside down making this case your number one priority, gathering and documenting evidence, developing lists of potential witnesses, meeting with your attorney and rehearsing your responses as a witness? Many cases settle, but you can’t guarantee that yours will.

Are you willing to hear your situation broadcast around the community, including in companies you might once have thought to approach for a job? Sometimes it absolutely makes sense to sue, but not if suing strains your health. The price can be very high, financially and otherwise. Can you pay it?

What can you do if you know you could find an attorney and could pay legal fees or negotiate contingency, but the rest is impossible? First, forgive yourself for being a human being, someone with limitations that make suing impossible.

The next step is to find new references to speak for you. If you’re asked why you left a job, say that you’d accomplished everything there that you could. It’s true, isn’t it? Think about companies that wouldn’t contact the former company. A competitor might well not and might very well be glad to take you on board.

Dr. Mildred Culp, an award-winning journalist, also writes two syndicated columns -- WorkWise Interactive, on youth employment, and the classic WorkWise, on emerging workplace trends. Contact her at 708-672-1300 or culp@workwise.net. Copyright 2007 Passage Media.