California Employment Law
California Employment Law Questions Answered by Legal Experts
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The prospective company is not bound by the separation agreement, and can really ask about anything, even whether or not the termination was voluntary or involuntary. As for what you can disclose, that depends on the terms of the agreement.
You can mention as much as you feel comfortable doing so, and letting them know that there is a confidentiality agreement pertaining to your previous employer.
(and that you can't give any more information other than that)
Now the fact that there is an agreement in the first place typically indicates that the termination was voluntary (in that you resigned, rather than be fired, or that there was some other circumstance in place that made it amicable rather than contested).
But ultimately it depends on the nature of the agreement and what each side is barred from doing or not doing as to what you can disclose.
But if they were to call my previous employer, what is my previous employer obligated by law to say or not to say?
There's nothing that would stop the potential employer from inquiring about the terms of your termination, but if the agreement spells out what your former employer would disclose, then that agreement would control.
In the absence of an agreement, there's nothing that would make it illegal to tell your prospective employer anything.
Now if they lied about you, that could be actionable as defamation.
But in the absence of any lies or misrepresentations, and assuming no contractual obligation to keep quiet or not disclose certain facts surrounding your termination, they could tell the potential employer anything.
Even if there were not an 'agreement' in place, what does the previous employer disclose? By law, are they allowed to say my dates of employment, my salary, my reasons for leaving, or anything further from my personnel file?
Absolutely. There's no limit as to what they can say, but most of the time they will only verify employment, rather than give a "positive" or "negative" reference, because of the possibility of a defamation lawsuit.
If they say something negative about you, there's no agency that you can complain to (as no laws were broken), although it could be actionable in civil court as a "tort" (a legal wrong) if it is a false statement of material fact.
OK, so if I were to say to a prospective employer that the terms of my separation are confidential, even though that may create some question in their mind about the circumstances or about me, that would be an acceptable answer. I certainly don't want to say something that would create a negative impression on my prior company even though they were the ones who 'did something wrong'.
That's absolutely acceptable. It probably would be better to say that it was an "amicable" separation, but the terms are confidential per the separation agreement, etc...
I'm understanding that the answer to my question is that a) without a separation agreement in place my previous employer can basically say anything they want; however, typically they refrain from anything negative for liability reasons; and that b) the terms of the separation agreement are really what I need to pay attention to here so that I don't get myself in trouble either.
Yes and yes. There's no law that says what a former employer can and cannot say, although they do typically refrain from saying negative things because of the threat of a lawsuit.
And the terms of the confidentiality agreement will continue to the new employer, so you would need to watch what you say.
Thank you, XXXXX XXXXX very helpful. Have a great day!
My pleasure, and you too.If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX good luck to you!
Thank you. The rating will be a 5 / excellent. I appreciate your direct and speedy communication with me.
You're welcome, and again, good luck to you!
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