The Common Law

My Old Boss Said What?

I thought I had a fairly good relationship with my old boss, but I just found out that he gave a new potential employer a bad recommendation about me. Is that grounds for a lawsuit?

You are optimistic about the possibility of an exciting new job. You've interviewed for the position and offered several previous work references that you think will give you an advantage in the hiring process. When you don't get the job, you ask why and, among other things, learn that one of your previous employers provided a poor recommendation about your work performance. Mad and in complete disagreement with the negative recommendation, you wonder whether you have grounds to file a lawsuit against your former boss.

Generally speaking, a bad recommendation is not grounds for a lawsuit. Merely voicing a negative opinion is an act of free speech and is probably not actionable. In addition, the Texas Labor Code specifically grants employers limited immunity for disclosing information about a current or former employee's job performance to a prospective employer requesting that information. The term "job performance" is fairly broad; it not only includes professional skills and abilities but also attendance, punctuality, attitudes, behavior, relationships with co-workers, and generally anything relating to criticism of a person's work.

That immunity is meant to be limited, though. An employer could be liable if he disclosed harmful information unrelated to job performance or if he disclosed information to someone other than a prospective employer. Comments questioning an employee's honesty, integrity, or virtue might cross the line, even if job-related. An employer can also be liable if he discloses information that he knows is false or if he discloses information that he would have known was false had he conducted a reasonable investigation. There are also specific federal and state laws beyond the scope of this article that prohibit an employer's disclosure of certain health and medical information, even to prospective employers.

In most cases, however, telling a prospective employer honestly that you are less than impressed with a former employee and why is perfectly legitimate.

Please submit column suggestions, questions, and comments to thecommonlaw@austinchronicle.com. Submission of potential topics does not create an attorney-client relationship, and any information submitted is subject to being included in future columns.

Marrs, Ellis & Hodge LLP, www.jmehlaw.com.

The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.

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