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Can I sue a former employer for refusing to give a reference which caused the new employer to not hire me?

Daly City, CA |

I have interviewed for a position as a Human Resource Administrative Assistant, and I received a contingency offer depending upon my references and background check. The Human Resource manager called me and said my last supervisor "seemed extremely uncomfortable with giving you a reference, and she's avoiding my calls." And that is because I filed a wage claim with the DIR, in which I won. She gave me a high recommendation at the hearing but now her story changed to my would be new employer. She gave me a written letter of recommendation and I gave them a copy but they also wanted to speak with her. Can I sue my last employer for refusing to give a reference and by doing so caused the would be employer to be eerie about hiring me because she is trying to retaliate against me.

Attorney Answers 4

Posted

I disagree with the answers I read that indicate that you do not have a case. A more detailed intake of your situation is needed. There are anti-retaliation statutes that may be applicable in your case. Labor Code 98.6 may be applicable to your situation - it is the anti-discrimination/retaliation statute related to applicants of wage claims.

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3 comments

Christine C McCall

Christine C McCall

Posted

Are you contemplating this code section as applicable against the previous employer? The potential new one? Can you cite ANY case in which this statutory provision has been held applicable in this factual circumstance? I would be thrilled to add any citable case to my reference materials on this issue but, just for starters, I think that the limitation of § 98.6 set forth in the opening sentence (... or in any manner discriminate against any EMPLOYEE OR APPLICANT FOR EMPLOYMENT...) precludes applicability here against a former employer not providing a reference when requested. But I would be more than happy to stand wrong in the face of citation to any California legal authority.

Neil Pedersen

Neil Pedersen

Posted

There is no way Labor Code 98.6 forces an employer to provide a reference that the employer otherwise had no duty to provide. To suggests otherwise is reckless and creates expectations that will be dashed.

David Andrew Mallen

David Andrew Mallen

Posted

I agree with Mr. Pedersen and Ms. McCall to the extent that Labor Code 98.6 does not create an independent duty to provide a reference. However, if the ex-employer had a policy and practice of verifying dates of employment and positions held (as per many employee handbooks) and the ex-employer violated its policy by "hemming" and "hawing" and sounding "eeerie" and by refusing to verify employment in violation of its own policy, I would argue that this violation of its own policy is evidence of retaliation.

Posted

No.

I am licensed in California only and my answers on Avvo assume California law. Answers provided by me are for general information only. They are not legal advice. Answers must not be relied upon. Legal advice must be based on the interplay between specific exact facts and the law. This forum does not allow for the discussion of that interplay. My answer to any specific question would likely be different if that interplay were explored during an attorney-client relationship. I provide legal advice during the course of an attorney-client relationship only. The exchange of information through this forum does not establish such a relationship. That relationship is established only by personal and direct consultation with me followed by the execution of a written attorney-client agreement signed by each of us. The communications on this website are not privileged or confidential and I assume no duty to anyone by my participation on Avvo or because I have answered or commented on a question. All legal proceedings involve deadlines and time limiting statutes. So that legal rights are not lost for failure to timely take appropriate action and because I do not provide legal advice in answer to any question, if you are an interested party you should promptly and personally consult with an attorney for legal advice. Also, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference

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Posted

You sue when someone breaches a legal obligation owed to you under the law. The law does not obligate your former employer -- or your former employer's HR staff person -- to provide a reference for you. So, although you can sue, you cannot successfully sue.

My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.

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5 comments

Asker

Posted

Even though she's not doing so out of retaliation?

Neil Pedersen

Neil Pedersen

Posted

Yes, even if the refusal to give a reference is motivated by retaliation. She has no duty to act so she cannot be sued for refusing to act, no matter what the motivation.

Arlo Garcia Uriarte

Arlo Garcia Uriarte

Posted

But she has a duty not to retaliate because the former employee filed a wage claim against that former company. See Labor Code 98.6.

Christine C McCall

Christine C McCall

Posted

Well, Mr. Uriarte, can you cite us to ANY California authority that upholds a finding of prohibited retaliation based on the failure to perform an act that is not required of the actor? I would really like to conclude that you are right, but is there ANY legal authority to support the positions you are urging here?

David Andrew Mallen

David Andrew Mallen

Posted

I don't have any direct authority for this position, but I would argue -- hypothetically -- that IF the employee can prove that the employer has a policy and practice of giving references to other employees, and IF the employer violated its policy and practice with respect to an employee who filed and won a wage claim, then a retaliation claim would be POSSIBLE. I agree that it would be very difficult to prove. I disagree that retaliation cases require any sort of breach of legal duty, other than the retaliatory act itself.

Posted

Yes, you can bring a lawsuit.

However, your lawsuit will not be successful because the former employer has no legal duty to provide a reference.

Moreover, in order to recover monetary damages, you would have to prove by a preponderance of the evidence that the prospective employer would have actually hired you if the former employer had provided a reference.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.

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2 comments

Asker

Posted

I signed a contingency offer letter based upon my background check, and references. My former employer is refusing to give the reference out of retaliation though, which is so unfair. They have her on tape at the wage claim hearing saying what a superb employee I was and also she wrote a written letter of recommendation but now she doesn't wanna give a reference.

Neil Pedersen

Neil Pedersen

Posted

The law does not address unfairness. It addresses unlawfulness. There are many things that are unfair that do not give rise to a legal claim. Sorry.

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