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JPEsq
JPEsq, Lawyer
Category: Employment Law
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Experience:  Experience as both corporate in-house counsel and private counsel
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Within a job reference, can a former employer comment on your

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Within a job reference, can a former employer comment on your conduct as their former employee - even though the facts regarding your conduct are part of ongoing litigation between you and your former employer?

There is no law that would stop a former employer from saying things about the conduct of a former employee... other than the threat of a defamation lawsuit. That means that a former employer can say anything that is true to a prospective employer.

 

As a practical matter, former employers don't usually say much simply because it risks a lawsuit. If an employer is in the midst of a lawsuit with the employee, that would make commenting on such things pretty reckless by the employer. But it would not be strictly illegal. It would just mean that if they end up losing the lawsuit, they are almost guaranteed to lose the forthcoming defamation lawsuit as well.

Customer: replied 4 years ago.
Thank you for your prompt reply, but maybe I can give you more details?

My former supervisor is telling potential employers that even though I'm eligible for re-hire by my former employing agency, that "he" would not hire me because I had conduct issues, I was confrontational, and because of my conduct I resigned...

Fact is, my former employer created a hostile work environment and before I resigned, I initiated complaints and lawsuits against my employer because of the false and fabricated allegations regarding my conduct - to include my employer's exercise of retaliation/reprisal against me because of the complaints and lawsuits. I have hearings with the Equal Employment Opportunity Commission (EEOC) and the Merit Systems Protection Board (MSPB) against my employer at this time.

So, my question is, can my former employer still make comments on my conduct, even though the facts of my conduct are subject of ongoing litigation?

I filed a civil suit for slander against my supervisor, and the U.S. attorney stepped in and placed a notice to have my suit removed because they are saying my supervisor acted within the scope of his duties.

I also filed another retaliation complaint against this supervisor with the EEOC, and so far the EEOC has accepted the complaint.

Thanks, XXXXX XXXXX not complicating the question.
Thank you for the additional information. You are not complicating things, but it does not change my response. There is no automatic gag order that goes into effect or anything... it is a pretty reckless move on the part of your former employer, but there is no law that prevents it. The only thing that would prevent it is the threat of additional legal action. They are essentially adding fuel to your case, which seems unwise, but it is not strictly against the law.
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