What Can A Former Employer Say About You?

There are common misconceptions about what a former employer can say about you to potential employers, or to anyone for that matter. Employers aren’t limited to confirming dates of employment. They can even disclose the circumstances surrounding the end of your employment. Although many employers adhere to confidentiality restrictions as a matter of internal policy, Iowa law recognizes very little in the way of such employment confidentiality. Let’s discuss those laws.

Two Iowa statutes are the primary sources of legal restrictions against employers in these situations. The first is Iowa Code 91B.2. That law states:

“An employer or an employer's representative who, upon request by or authorization of a current or former employee or upon request made by a person who in good faith is believed to be a representative of a prospective employer of a current or former employee, provides work-related information about a current or former employee, is immune from civil liability unless the employer or the employer's representative acted unreasonably in providing the work-related information.”

An employer acts “unreasonably” under the following circumstances: (a) the work-related information violates a civil right of the current or former employee; (b) the work-related information knowingly is provided to a person who has no legitimate and common interest in receiving the work-related information; or (c) the work-related information is not relevant to the inquiry being made, is provided with malice, or is provided with no good faith belief that it is true.

The second claim falls under Iowa’s blacklisting statutes, Iowa Code 730.1 and 730.2. Iowa Code 730.1 provides:

“If any person, agent, company, or corporation, after having discharged any employee from service, shall prevent or attempt to prevent, by word or writing of any kind, such discharged employee from obtaining employment with any other person, company, or corporation, except by furnishing in writing on request a truthful statement as to the cause of the person's discharge, such person, agent, company, or corporation shall be guilty of a serious misdemeanor and shall be liable for all damages sustained by any such person.”

Iowa Code 730.2 states:

“If any railway company or other company, partnership, or corporation shall authorize or allow any of its or their agents to blacklist any discharged employee, or attempt by word or writing or any other means whatever to prevent such discharged employee, or any employee who may have voluntarily left said company's service, from obtaining employment with any other person or company, except as provided for in section 730.1, such company or partnership shall be liable in treble damages to such employee so prevented from obtaining employment.”

To succeed on a blacklisting claim, the former employee must prove: (1) the employer discharged the employee; (2) thereafter, by word, writing, or other means the employer prevented or attempted to prevent the former employee from obtaining other employment; (3) the employer acted with the predominant purpose of preventing the former employee from obtaining future employment; and (4) the employer's conduct was a proximate cause of damage to the former employee.

An exception to all of this would be if the former employer has an agreement with an employee that restricts what the former employer can say. Settlement or severance agreements concerning the employment usually include such language. The employee would have a breach of contract claim against the employer if the employer didn’t comply with the agreement.

Finally, under any of these legal theories, an often overlooked issue is proving that the former employer’s statements to a potential employer caused the potential employer to decline employment. In court, the former employee can’t assume or speculate about the existence of such a connection. There has to be proof. That usually requires testimony from the potential employer regarding its reasons for not offering employment, the primary of which needs to be the former employer’s statements or the claim will fail.