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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 12626
Experience:  Significant experience in all areas of employment law.
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I worked as a legal secretary + years. Three years ago, I

Customer Question

I worked as a legal secretary for 30+ years. Three years ago, I relocated to a larger city and obtained a job with a small firm where I worked for 2 years. Most recently, I worked at a locally well-known firm for 11 months, at which time I received my "slightly above average" review along with the "standard" bonus everyone received. Two weeks later my employment was terminated without warning. When I asked what I had done in the past two weeks to warrant being discharged, I was told "it was a partner's decision" (repeatedly, which was all they would say). I believe that they may have found out I was applying at other firms, and got upset - but that is the ONLY thing that could possibly have caused me to be let go! When I applied for and received unemployment compensation, it was noted on my file that I had been "discharged for reasons unrelated to performance". For the past several months I have been unable to secure a legal secretary position with any other firm in town. I have applied countless times and have been interviewed, and when they ask why I left the last firm and I explain it (just as I did here), I have often been told "we'll be in touch and in the meantime, please let us know before you accept another offer" -- and then I hear nothing further (not a single word even after I send a thank you e-mail for the interview and reiterate my interest in the particular position). I cannot help but wonder what exactly is being said about me to keep other firms from hiring me (especially because of my former impeccable employment history, extensive experience, and amazing referral letters from various attorneys I'd work with back in my home town) and, although I would never want to return to work at that particular firm again after what happened, I certainly don't want this to happen to anyone else because it has been depressing and debilitating to say the least! How can I find out what is being said and get them to "cease and desist" whatever they may be saying or doing that is keeping me from getting another job?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 1 year ago.

Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

The simplest way to find out what is being said about you is to have a friend call posing as a prospective employer and ask for a reference. Alternatively, you could hire a private investigator to do the same. There is nothing unlawful about this, and it should give you a very accurate idea of what's being said.

The more difficult problem is what to do if your employer is saying bad things. This is a difficult problem because if your employer is just relating statements of opinion, that is not actionable on any legal theory. They are entitled to their opinion even if you disagree with it and even if any reasonable person would, too. So, if they want to say "I'd never hire Jane, she was the worst employee I'd ever had," that would not be an actionable statement, even if performance issues were never related to you and even if no one in their right mind would agree with that statement.

Even if your employer is making false statements of fact, Texas actually recognizes a qualified "privilege" that protects employers giving references from defamation claims un less it can be proven that the false statements of fact are being made with actual malice, meaning with knowledge they are untrue and with the specific intent of hurting the employee. Actual malice is very hard to show because it's always hard to prove intent.

As I am sure you will agree, this obviously leaves employees who may receive less-than-flattering references in a difficult situation. So, what are the options? Well, you could still go ahead and hire an attorney to write a "cease and desist" letter demanding that any derogatory statements stop. But for all the reasons noted above, the letter would essentially be an empty threat. You'd have to hope you simply scare your former employer into changing their ways. It's possible, but you'll be spending money for a service that may very well not yield a result.

The other option is to list as your reference a co-worker or manager from the company whom you are confident will say something positive about you. Sure, it's possible prospective employers might directly call your former employer's main office and get in touch with someone else, but they may simply call the person you list as the point of contact. There is nothing illegal or even misleading about that. The prospective employer is still getting their reference, just from someone who will provide a more accurate explanation of your value as an employee.

The last option is to simply address the issue head on. It sounds like your employer may be giving a bad reference because they are bitter you were looking for other employment. If you provide several other people as references who will vouch for your ability and integrity, most employers will look past one bad reference, especially under the circumstances.

These are really the best options here. I realize they are not ideal, but the law does not provide any greater protection to employees in this circumstance.

I hope that you find this information helpful. Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes moving forward.

Expert:  Patrick, Esq. replied 1 year ago.

Were you able to view my response? Please let me know if I can provide any further assistance to you....

Customer: replied 1 year ago.
Patrick's response was timely, lengthy, and courteous, but didn't really tell me anything new.