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Old 02-08-2013, 05:58 PM   #1
Rusty Fork
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Default What can an previous employer tell a potential employer

My BIL was layed off from a job as a warehouse manager about a year ago.

He has a rough time landing a job. He has had many second interviews and then no interest in him. He could not figure it out until this week. He broke down and went to a temporary agency to get a job. He went through the process and went to take his wee wee test and was on his way to employment.

A little afterwards (within an hour) he got a call from the temp agency telling him that they could not use him because his previous employer that he was using as a reference had told them that he had refused a drug test.

The story behind that is that he had backed a company truck into a pole located near the loading dock when he was closing up the warehouse at closing time on a Friday afternoon. He told the GM what had happened and he said no problem, lets take care of it on Monday. After he left, the GM called him and told him to come back because he needed to take a drug test. He had been in the office since 4:30 AM that morning and he told the GM that he was not coming back because he was at home and they agreed to take care of it on Monday. The GM told him to just come in at noon on Monday to discuss the issue. He was fired for refusing a drug test.

He had been promised a raise and was asking about it after not seeing the pay increase. The company cheats on their driver logs amonng other OSHA related issues.

He has been a good guy about this but now to find out that they are telling his potential employers that he had refused a drug test has really crushed him.

What can he do to get this corrected and stop them from telling potential employers that he refused a test. He had a flawless file for the 4 years he worked for them. Everything was good until he asked about his pay increase that he was promised.

Sorry for the long story!
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Old 02-08-2013, 06:01 PM   #2
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stop using them as a reference and tell furture employers no they cannot contact them.
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Old 02-08-2013, 06:02 PM   #3
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A lawyer. And quick.
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Old 02-08-2013, 06:03 PM   #4
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I do not know the law but I always thought they could only say if you worked there, how much you made and if you were eligible for re-hire.
Have him contact the labor board, EEOC or maybe a labor lawyer...
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Old 02-08-2013, 06:05 PM   #5
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only thing a past employer can tell a potential employer is dates of employment and re hire status.

ooops. tommy lee beat me to it!
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Old 02-08-2013, 06:08 PM   #6
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Quote:
Originally Posted by WCB View Post
I do not know the law but I always thought they could only say if you worked there, how much you made and if you were eligible for re-hire.
Have him contact the labor board, EEOC or maybe a labor lawyer...
Yep this...but also remove them as a reference, just leave the company on the resume. Texas is an at will state, they aren't supposed to give out hearsay information. Sounds like he will need a better head hunter too!
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Old 02-08-2013, 06:10 PM   #7
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Legally dates of employment only. I would provide any and all documentation of said conversation to a legal expert.
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Old 02-08-2013, 06:13 PM   #8
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Dates of employememt, starting and ending wages, starting and ending job titles.
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Old 02-08-2013, 06:16 PM   #9
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maybe be up front with the potential employer and explain to them about the incident and what the former employer has been saying. the only drug test they should be concerned with is the ones they send him for. jmo
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Old 02-08-2013, 06:16 PM   #10
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Well, if I fire a real POS, and a competitor calls and ask me about them, I'm going to tell the truth, as I would expect them to do. If not a fact, then slander would be in order.
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Old 02-08-2013, 06:17 PM   #11
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Quote:
Originally Posted by WCB View Post
I do not know the law but I always thought they could only say if you worked there, how much you made and if you were eligible for re-hire.
Have him contact the labor board, EEOC or maybe a labor lawyer...
Quote:
Originally Posted by skeeter View Post
only thing a past employer can tell a potential employer is dates of employment and re hire status.

ooops. tommy lee beat me to it!
^^^ This ^^^
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Old 02-08-2013, 06:18 PM   #12
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Need a lawyer to write a very stern letter.
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Old 02-08-2013, 06:22 PM   #13
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Originally Posted by Ironman View Post
Well, if I fire a real POS, and a competitor calls and ask me about them, I'm going to tell the truth, as I would expect them to do. If not a fact, then slander would be in order.
^^^ this! They can say anything as long as it's true.
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Old 02-08-2013, 06:23 PM   #14
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.
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Old 02-08-2013, 06:24 PM   #15
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Quote:
Originally Posted by NewTexian View Post
Dates of employememt, starting and ending wages, starting and ending job titles.
This^^^^^^^^^^^. Remember there are two sides to every story. From the way you told the story it seems as if the gm asked him to come in and he probably refused or strongly disagreed with coming in so the GM agreed to handle it in Monday. Regardless of the way he was terminated he can't mess with his future employment opportunities.
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Old 02-08-2013, 06:24 PM   #16
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Originally Posted by sharkhunter View Post
You might want to check the legality of that to protect yourself.
Sorry, but it's the truth, period.
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Old 02-08-2013, 06:27 PM   #17
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Quote:
Originally Posted by NewTexian View Post
Dates of employememt, starting and ending wages, starting and ending job titles.
^^^^This is ALL you can say these days. You say ANYTHING else a lawsuit could be headed your way. That IS the law.

Our HR department made this VERY clear to managers several years ago. Even showed us the laws written.
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Old 02-08-2013, 06:29 PM   #18
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Quote:
Originally Posted by Ironman View Post
Sorry, but it's the truth, period.
I understand where you are coming from Ironman but it could get you in a hot mess. I'm all for telling the truth but if it ever got back to them you would be in a mess. It's just not worth it if you ask me. just my opinion.
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Old 02-08-2013, 06:30 PM   #19
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Quote:
Originally Posted by pickles View Post
^^^^This is ALL you can say these days. You say ANYTHING else a lawsuit could be headed your way. That IS the law.

Our HR department made this VERY clear to managers several years ago. Even showed us the laws written.
Very true but man would I like to let some people know what they are getting into sometimes!
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Old 02-08-2013, 06:32 PM   #20
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Quote:
Originally Posted by pickles View Post
^^^^This is ALL you can say these days. You say ANYTHING else a lawsuit could be headed your way. That IS the law.

Our HR department made this VERY clear to managers several years ago. Even showed us the laws written.
Then lawyer up! If someone in my company is a danger to other people on a job site, the future employer will be made aware! I'm not going to live with it not being known. I too have my legal obligations.

Last edited by Ironman; 02-08-2013 at 06:34 PM..
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Old 02-08-2013, 06:39 PM   #21
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Had to let a guy go several yrs ago for many reasons. He put me down as a refernece several times. I was told by corp legal all we could say was wether he had been employed by us and if we would hire him back. Only thing I could say was yes he worked there and that at this time we didn't have any opportunities available for employment.

It may not be what they are saying but how it is worded.
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Old 02-08-2013, 06:53 PM   #22
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I do not know the law but I always thought they could only say if you worked there, how much you made and if you were eligible for re-hire.
Have him contact the labor board, EEOC or maybe a labor lawyer...
X2 my company policy is no personal info or reference or referral like above yes they worked here and that's about it
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Old 02-08-2013, 07:02 PM   #23
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Defamation , libel google it. contact a lawyer. Is it a large wealthy company saying this about him? If so and he can prove it could be good for him
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Old 02-08-2013, 08:22 PM   #24
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backspace backspace

Sent from my C771 using Tapatalk 2
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Old 02-08-2013, 08:49 PM   #25
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Wow......
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Old 02-08-2013, 08:54 PM   #26
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Originally Posted by pickles View Post
^^^^This is ALL you can say these days. You say ANYTHING else a lawsuit could be headed your way. That IS the law.

Our HR department made this VERY clear to managers several years ago. Even showed us the laws written.
That's a myth. In Texas An employer can legally say anything about the employee as long as its true. He was late all the time, poor employee reviews.

Its Generally not prudent as it exposes you to potential issues.
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Old 02-08-2013, 09:02 PM   #27
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I really didn't think they called your references anyway. I have only hired a handful of people but never called
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Old 02-08-2013, 11:28 PM   #28
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Ya I do not think it is against the law not to give out info.(not 100% sure). My company has a policy not to give out info. If you don't get the job because of us we do not want you to come back and sue.
Now that you know what could be keeping you from getting a job, tell the future employer first, explain yourself. This will go along way. If I call and get "blindsided" by some info that you did not tell me, I might move on to the next one.
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Old 02-09-2013, 12:06 AM   #29
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I have a feeling there is more to the story. If not, lawyer up.
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Old 02-09-2013, 01:12 AM   #30
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I got lost in all the replys, but .... "What can an emplyrer tell a precocious employer?) Legally, not a whole lot .... practically? Anything they want to and think they can get away with. What can they get away with? As much as you think it's worth to argue over. What would I do. Doesn't compute, don't want or need an employer. What should ou do? Aint got a clue. Do what you think yo need to do.

Hope I got all this relevant and aimed int eh propper direction
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Old 02-09-2013, 01:16 AM   #31
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He should have just went back and tested.
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Old 02-09-2013, 05:27 AM   #32
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To my knowledge there are no laws preventing a former employer from disclosing any info to another perspective employer. Most companies only confirm dates and salary if provided by the company calling. Why most don't provide other info is due to fear of a defamation lawsuit. If a former employee is able to prove the information is false they can win big. Most companies just don't want to be sued. However small companies without a strong HR or legal team, often give out more info than they should.

In this case, the employee refused to come back to take the test. Regardless of the other issues, his refusal to come back and submit to testing as requested is grounds for dismissal. He has a few options, get an attorney to write a letter indicating that he views their past actions as defamation and request they cease and desist and only on confirm information provided; try to sue them for defamation; list the reason on future applications and attempt to explain or, don't list them in fixture applications. The bottom line is he was not layed off, he was terminated.

Last edited by Humper; 02-09-2013 at 05:35 AM..
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Old 02-09-2013, 05:32 AM   #33
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Bummer.
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Old 02-09-2013, 05:54 AM   #34
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Different rules apply for DOT compliance. A driver must disclose all employment for the prior ten years when applying for a driving job. The prospective employer must contact all previous employers that were related to driving. The past employer can disclose anything that is true, but many will only confirm dates of employment and whether the person is eligible for rehire. The more that is revealed, the greater the chance that someone will cry foul and lawyer up. So, it is best to just confirm dates and let it igo at that.

In this guys situation, it sounds to me that he did refuse a post accident drug test. If he revealed that during his interview, I would understand and not use it as a disqualification.
Some employers are really **** about post accident drug testing and use no common sense in their approach to testing. We try to use the reasonable suspicion approach, which would not have called for him to come back to do a pee test for a bumped pole. If he been involved in an accident involving other vehicles or people, it would be a cya situation and a test would be called for.
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Old 02-09-2013, 06:52 AM   #35
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Unfortunately no matter how you say it he refused to come back in for a drug test. Since refusal is looked at about the same as a dirty test I'm guessing he will be feeling the results of making that choice for quite a while.
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Old 02-09-2013, 07:29 AM   #36
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Quote:
Originally Posted by WCB View Post
I do not know the law but I always thought they could only say if you worked there, how much you made and if you were eligible for re-hire.
Have him contact the labor board, EEOC or maybe a labor lawyer...
He would not be eligible for re-hire. It's logical to think the next question would be why not? Because he refused a post-accident drug test.

Quote:
Originally Posted by 60 Deluxe View Post
Different rules apply for DOT compliance. A driver must disclose all employment for the prior ten years when applying for a driving job. The prospective employer must contact all previous employers that were related to driving. The past employer can disclose anything that is true, but many will only confirm dates of employment and whether the person is eligible for rehire. The more that is revealed, the greater the chance that someone will cry foul and lawyer up. So, it is best to just confirm dates and let it igo at that.

In this guys situation, it sounds to me that he did refuse a post accident drug test. If he revealed that during his interview, I would understand and not use it as a disqualification.
Some employers are really **** about post accident drug testing and use no common sense in their approach to testing. We try to use the reasonable suspicion approach, which would not have called for him to come back to do a pee test for a bumped pole. If he been involved in an accident involving other vehicles or people, it would be a cya situation and a test would be called for.
Our company is one of those **** companies.
ANY accident requires drug test, including a breathalyzer test.
Refuse and you're fired on the spot.
He should've taken the test. On the other hand, the manager should've never let he leave.
If we have an accident, we're supposed to get the vehicle out of the roadway if possible and wait for a supervisor to come pick us up to go pee.

Quote:
Originally Posted by Old Bald Guy View Post
Unfortunately no matter how you say it he refused to come back in for a drug test. Since refusal is looked at about the same as a dirty test I'm guessing he will be feeling the results of making that choice for quite a while.
Unfortunately this is probably true for him.
There are a lot of people looking for work right now. Someone who refused a drug test will be on the bottom of the list.
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Old 02-09-2013, 09:16 AM   #37
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Hmmmm, if they cannot say anything how would it be a reference? The whole reason for a reference is to find out your past work history and performance, not that you worked there and when. it already says that on the document the person is holding. I have been a company owner for 15 years and I have rarely if ever said anything bad about anyone. I figure that it didn't work out with us but there is no reason to further complicate the persons life. Maybe they will do better at the next job.
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Old 02-09-2013, 09:42 AM   #38
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I think they can say whatever they want. Most companies have policies against giving anything other than dates of employment and last job title. In fact my work has a special number just for this. The person on the other end of the line doesn't know anything about that person other than those 2 items.
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Old 02-09-2013, 09:55 AM   #39
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Lots of incorrect info here.

Of everyone that has responded, Sparkles has it correct.

You cannot say anything negative about a former employee....period.

Dates of employment and whether or not they are "eligible" for rehire is it.

Like it or not that is the law, even in the right to work state of Texas.



Now you can say whatever you want about a former employee to the TWC if they file an unemployment claim and you dispute it.



The Original Subject of the thread probably should have gone back and pee'd in the stupid cup and like was said, probably more to the story. If someone is a solid and valuable employee you will keep you job when accidents happen.

I will put up with a lot of crap from an employee if they make the company money.
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Old 02-09-2013, 11:55 AM   #40
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They can say anything they think they can get away with--best policy is to only confirm dates of employment.
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Old 02-09-2013, 12:09 PM   #41
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You mentioned driver logs. Does he have a CDL? If so, refusing to take a drug screen is not allowed. It gets reported and they look at that as being guilty and goes on his DAC. This info does and can be reported when they request DAC info and will tell them the results. No one will him if he shows a positive drug screen.
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Old 02-09-2013, 12:13 PM   #42
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"One of the questions I get asked frequently is "What can an employer say about former employees?" Some job seekers presume that companies can only legally release dates of employment, salary, and your job title. However, that's not the case.
Answer: Can an employer say a former employee was fired or terminated for cause? How about saying that you quit without notice or your attendance record wasn't good? Are there limits to what an employer can say about you?
What Former Employers Can Say About You

There are no federal laws restricting what information an employer can disclose about former employees. If you were fired or terminated from employment, the company can say so. They can also give a reason. For example, if someone was fired for stealing or falsifying a time sheet, they can explain why the employee was terminated.

That said, because of laws regarding defamation (which is slander or libel) companies are usually careful about what information they provide to hiring managers confirming employment or checking references. What they say has to be the truth or the company can be subject to a lawsuit from the former employee. Legally, they can say anything that is factual and accurate.

Concern about lawsuits is why most employers only confirm dates of employment, your position, and salary.

State labor laws vary, so check your state labor department website for information on state labor laws that limit what employers can disclose about former employees."

So there are no federal laws against it.
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Old 02-09-2013, 12:17 PM   #43
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http://law.justia.com/codes/texas/20...000103.00.html

"2005 Texas Labor Code CHAPTER 103. DISCLOSURE BY EMPLOYER OF INFORMATION REGARDING CERTAIN EMPLOYEES OR FORMER EMPLOYEES
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LABOR CODE


CHAPTER 103. DISCLOSURE BY EMPLOYER OF INFORMATION REGARDING
CERTAIN EMPLOYEES OR FORMER EMPLOYEES



103.001. PURPOSE; LEGISLATIVE FINDING. The
legislature finds that the disclosure by an employer of truthful
information regarding a current or former employee protects
employment relationships and benefits the public welfare. It is
the intent of the legislature that an employer who makes a
disclosure based on information obtained by the employer that any
employer would reasonably believe to be true should be immune from
civil liability for that disclosure.

Added by Acts 1999, 76th Leg., ch. 240, 1, eff. Sept. 1, 1999.


103.002. DEFINITIONS. In this chapter:
(1) "Employee" means a person who performs services
for an employer, whether or not for compensation.
(2) "Employer" means a person who has one or more
employees or other individuals who perform services under a
contract of hire or service, whether expressed or implied, or oral
or written.
(3) "Job performance" means the manner in which an
employee performs a position of employment and includes an analysis
of the employee's attendance at work, attitudes, effort, knowledge,
behaviors, and skills.
(4) "Prospective employee" means any person who has
made an application, either oral or written, or has sent a resume or
other correspondence indicating an interest in employment.
(5) "Prospective employer" means an employer to whom a
prospective employee has made an application, either oral or
written, or sent a resume or other correspondence expressing an
interest in employment.

Added by Acts 1999, 76th Leg., ch. 240, 1, eff. Sept. 1, 1999.


103.003. AUTHORIZED DISCLOSURE; APPLICATION TO CERTAIN
EMPLOYEES. (a) An employer may disclose information about a
current or former employee's job performance to a prospective
employer of the current or former employee on the request of the
prospective employer or the employee.
(b) An employer may not disclose information about a
licensed nurse or licensed vocational nurse that relates to conduct
that is protected under Section 301.352 or 303.005, Occupations
Code. The employer must provide an affected nurse an opportunity to
submit a statement of reasonable length to the employer to
establish the application of Section 301.352 or 303.005,
Occupations Code.

Added by Acts 1999, 76th Leg., ch. 240, 1, eff. Sept. 1, 1999.
Amended by Acts 2001, 77th Leg., ch. 1420, 14.818, eff. Sept.
1, 2001.


103.004. IMMUNITY FROM CIVIL LIABILITY; EMPLOYER
REPRESENTATIVES. (a) An employer who discloses information about
a current or former employee under Section 103.003 is immune from
civil liability for that disclosure or any damages proximately
caused by that disclosure unless it is proven by clear and
convincing evidence that the information disclosed was known by
that employer to be false at the time the disclosure was made or
that the disclosure was made with malice or in reckless disregard
for the truth or falsity of the information disclosed. For purposes
of this subsection, "known" means actual knowledge based on
information relating to the employee, including any information
maintained in a file by the employer on that employee.
(b) This chapter applies to a managerial employee or other
representative of the employer who is authorized to provide and who
provides information in accordance with this chapter in the same
manner that it applies to an employer.

Added by Acts 1999, 76th Leg., ch. 240, 1, eff. Sept. 1, 1999.


103.005. EMPLOYMENT REFERENCE. This chapter does not
require an employer to provide an employment reference to or about a
current or former employee.

Added by Acts 1999, 76th Leg., ch. 240, 1, eff. Sept. 1, 1999.


Disclaimer: These codes may not be the most recent version. Texas may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources."
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Old 02-09-2013, 12:19 PM   #44
Daniel75
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So in short, in Texas, as long as the information given isn't false, they can tell a person calling anything they want and they are protected from civil liability. I too was under the impression that it was against the law, guess I was wrong.

Edit: I looked up the 2013 version, it says the same thing.

Last edited by Daniel75; 02-09-2013 at 12:27 PM..
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