In response to this ongoing practice, some states have laws that expressly allow former employees to take legal action—criminal, civil, or both—against those who actively sabotage their efforts to secure new employment. (See the chart below for state blacklisting laws.)
Although, in many cases, you could sue for defamation instead, the advantage of using the blacklisting statute is that you do not have to prove that you suffered actual harm (such as being denied a job) because of the blacklisting.
Blacklisting refers to the practice of preventing individuals from obtaining employment based on real or perceived grievances, often without their knowledge.
An employer might want to blacklist a former employee for a variety of reasons, including personal differences, whistleblowing, retaliation, or political disagreements. Blacklisting can harm a jobseeker's reputation, limit their career opportunities, and severely impact their ability to earn a living.
Blacklisting is widely considered unethical and in many states it is prohibited by law.
The mere fact that you have to work hard to find a new job usually isn't enough to prove blacklisting. But a strong signal of possible blacklisting at work would be a series of situations in which potential new employers seem to be on the verge of hiring you, then suddenly lose interest.
This indicates that, when a prospective employer checks your references just before hiring you, the blacklister is tipped off to where you have applied for work and is able to ding you.
The chart below is a synopsis of state laws prohibiting blacklisting. Note that these laws define blacklisting in varying ways. Some prohibit employers from maintaining an actual blacklist, some prohibit employers from making false statements about an employee, and some simply prohibit employers from using any means to prevent an employee from finding a job.
CAUTION
Additional laws may apply. If the chart below does not list your state, this means there is no law that specifically addresses the issue. However, there may be a state administrative regulation or local ordinance that does control blacklisting. Call your state labor department for more information.
Defamation happens when someone makes an intentional false statement that harms another person. When the statement is made orally, it’s called slander; a written statement is called libel.
In the job context, defamation claims often arise after the employment relationship ends, when a former employer is asked for a reference. In this situation, the employee claims that a former employer gave a false reference or another statement that damaged the employee’s reputation and/or hurt the employee’s chances of getting another job. Typically, the false statement is about the reasons why the employee was fired or the quality of the employee’s performance.
State rules differ on what an employee must prove to win a defamation case. Generally speaking, however, the employee must persuade the judge or jury of these five things:
If you think your former employer may have committed defamation, you should talk to an employment lawyer to find out whether your case is worth pursuing. These claims can be tough to win. The actual misconduct generally takes place in a private conversation that you aren’t privy to, so it can be hard to prove a defamatory statement was made. You’ll also have to show that the false statement was the reason you were turned down for a new job. And, in states that allow employers to claim a privilege for statements made as part of a reference, you’ll have to prove malice on the employer’s part.
Before you meet with a lawyer to assess your claims, gather any evidence you have. For example, had you gotten an offer letter or other indication that you would get the new position before your prospective employer pulled the plug? Do you have anything in writing about your former employer’s reference policy – or the actual statements that were made? Did you hear anything from the prospective employer that made you suspicious? There are legal tools a lawyer can use to gather evidence of what was said to whom, but you should be prepared to explain what led you to believe that your former employer defamed you (and to hand over any relevant evidence).
]]>This article summarizes some common legal claims based on hiring and outlines some steps to take if you believe you were treated unfairly in the hiring process.
Most hiring lawsuits boil down to one of these two scenarios: The employer relied on information that was legally off-limits in making its decision, or the employer misled (or outright lied to) the applicant during the hiring process.
In some situations, an applicant might even have a legal claim against a former employer who is illegally hindering the job search.
There are a number of factors that employers are legally prohibited from considering when they decide whether to hire an applicant. Some of these claims are recognized in every state; others are not.
Illegal Interview Questions
Certain questions are off-limits for employer during interviews, usually because they lead to information that employers can't consider in the hiring process.
Here are some of the most common illegal questions that come up during job interviews:
If your prospective employer has asked you any of the above—or any other questions that ask for legally protected information—you may have a discrimination or other legal claim.
If an employer makes intentional misrepresentations to convince an applicant to take a job, and the employee takes action in reliance on those statements (for example, by quitting a secure position to take the new one), the employee may have a fraud claim. These claims often come up if the new job either doesn’t materialize – leaving the applicant out of work and out of luck – or lasts only for a short time.
Example: Bob was recruited for a job in San Francisco. After he was promised a starting salary of $150,000 and a three-year contract, he quit his job in Arizona, put his house on the market, and put a down payment on a condominium in the city. On his first day of work, Bob was told his salary would start at $90,000 and was handed an at-will employment agreement to sign. Because California recognizes fraud claims, Bob might have a pretty good case against his new employer.
An employee might also have a wrongful termination claim based on statements made during the hiring process. For example, if an employer promised that the applicant would have a six-month probation period to learn the job, during which the employee could not be fired, the employee could have a breach of contract claim if the employer ended the relationship sooner.
In some circumstances, a rejected applicant might have a legal claim against a former employer for preventing the applicant from getting a new job.
Despite all these potential legal theories, there aren’t many hiring lawsuits filed – and even fewer are won. There are a few reasons for this, but it mostly boils down to proof. It’s hard to know – and harder to prove – why an employer turned down a particular applicant. Often, an applicant is left with strong suspicions but little hard evidence, particularly if the applicant doesn’t have any personal contacts within the company.
As a result, applicants who believe they were passed over unfairly have a particularly tough road ahead – and can really benefit from legal advice. A lawyer can help you figure out whether it’s worth pursuing a legal claim for failure to hire. And, if you pursue an administrative charge or a lawsuit, you’ll be able to use the discovery process to gather evidence that might support your claims.
If you are considering a lawsuit, you should talk to a lawyer right away. There are time limits for filing an administrative charge (which you must do before you can bring a lawsuit for discrimination or retaliation) or a lawsuit.
To assist the lawyer in assessing your chances, bring every document you have relating to the hiring decision. If you responded to an online post, print out a copy. If you have an offer letter, rejection letter, copy of your application and resume, or any other paperwork, bring that along as well. And make notes of any conversations you had, such as your initial contact with the employer, your interview, or a call to tell you that you didn’t get the job.
]]>I'm applying for jobs as a bartender. At one bar, the manager told me that they only hire people who live in the same neighborhood. They toss any applications that come from outside the bar's zip code. Is this legal?
Your question reminds us of the theme song from the TV show "Cheers": Sometimes you want to go where everybody knows your name -- and your nine-digit postal code. (Although it's not clear how often the Cheers neighbors got their mail, as Cliff the postman was always riding a stool at the end of the bar. But we digress.)
Whether this is a legal hiring criterion depends on the facts. Generally speaking, employers are free to impose any hiring requirements they like, as long as they aren't discriminatory. For example, a bar might require all employees to be able to sing karaoke passably well, to serve patrons quickly, and to be knowledgeable on modern mixology.
However, if an employer's hiring requirements discriminate against certain groups -- by design or by accident -- then they are not legal. For instance, let's say a bar required all employees to pass a lengthy test on local sports teams. If the intent behind this requirement was to disqualify as many women as possible, that would be intentional discrimination, and it would be illegal. But even if the intent was simply to make sure employees in a sports bar chain could intelligently converse with customers, the requirement might be illegal if it had the effect of screening out disproportionate numbers of female applicants. If this were the case, the bar could keep its sports test only if it could show that passing the test was job-related and consistent with business necessity. This is a tough standard to meet, particularly if alternatives exist that are less discriminatory. For example, the sports bar could send otherwise qualified applicants who didn't pass the test to a one-day crash course on local teams, or it could designate a number of positions that didn't require sports knowledge (bussers, dishwashers, cooks, and so on).
The same rules apply to your situation. If the bar you applied to adopted its "same neighborhood" requirement as a way to discriminate, that's illegal. For example, if neighborhoods are racially segregated (as is too often the case in urban areas), and the bar decided on this requirement as a way to avoid considering applicants of different races, that is discriminatory. Similarly, if you applied to work at a gay bar in an area that is largely gay, such a hiring requirement could violate state law prohibiting sexual orientation discrimination, if the owner's intent were to screen out applicants who aren't gay.
Even if the owner's intent is simply to make sure that patrons and employees have their knowledge of the neighborhood in common, the "same neighborhood" requirement could be discriminatory if it had the effect of screening out disproportionately large numbers of a protected group. Again, if neighborhoods are racially or ethnically segregated, this requirement might favor certain groups at the expense of others, for example.
As you can see, whether the requirement is discriminatory depends on lots of facts: the owner's intent, the make-up of the neighborhood (and surrounding neighborhoods), the demographics of the bar's employees, the characteristics of applicants who have been excluded from consideration due to the requirement, and so on. But if you really want the job and you live outside the hiring zone, it can't hurt to let the bar owner or manager know that its practice might be legally questionable -- and follow up quickly with all of the reasons why you'd be a fantastic employee.
I got through several rounds of the hiring process to manage the quality assurance team of a major software company. The team is international, and the job requires about a week of travel every couple of months. At my call-back interview, I informed the interview panel that I'm pregnant. I'm only four months along, but I wanted to be up front with them and make sure there were no misunderstandings. They asked me some questions about my ability to fly and willingness to leave home; I assured them that I was planning only a short parental leave, that my husband stays home with our children, and that I should be able to travel without complications.
Shortly after this interview, they turned me down for the job. They said I had strong complications, but they wanted someone who would be ready to go "from day one." Is this pregnancy discrimination?
It certainly could be pregnancy discrimination. Federal law and the laws of most states prohibit employers from making job decisions based on pregnancy. As in many areas of law, however, what the law requires is often quite different from what happens in the real world. Marissa Mayer, the CEO of Yahoo! was famously hired while pregnant. At lower-profile companies and for lower-level positions, however, women have quite a different experience. Plenty of women have reported a potential employer losing interest once her pregnancy is revealed (or becomes apparent).
If you search the Internet, you will find some giving advice not to reveal your pregnancy, even when it's physically obvious. This doesn't seem like a sound strategy, however. After all, your goal is to get a job with the company, where the people who hired you will be your managers and colleagues. To start the relationship off dishonestly might not work to your advantage in the long-term.
Some employers believe -- mistakenly -- that they are entitled to make hiring decisions based on pregnancy, because pregnancy leads to parental leave, which will cost the company time and money. However, this belief is erroneous. Whether or not there's an economic impact, employers may not decide who to hire based on pregnancy. After all, you may, like Mayer reportedly did, take only a couple of weeks of working maternity leave, then build a nursery next to your office so you won't have to miss a beat while tending to your baby. The whole point of laws prohibiting discrimination is that employers may not make assumptions, based on stereotypes or bias, about how real people are going to act.
Unless there's some non-pregnancy reason for your employer's comment, it sounds like the company implied that it was disqualifying you from consideration because you are pregnant. If the company's decision was based on your pregnancy, that's illegal. The question is, what should you do about it?
You have several options. If you are ready to put the litigation pedal to the metal, you can file a charge of discrimination at the Equal Employment Opportunity Commission or your state's anti-discrimination agency. This is a necessary prerequisite if you want to file a lawsuit, and the agency may investigate your claim and try to settle it. Keep in mind, however, that you will be facing an uphill battle. You will have to prove that your prospective employer made its decision because you were pregnant. If there were other qualified candidates, and the employer can come up with a plausible explanation for its comment (for example, that it hired a candidate who had held a similar job for years and could really hit the ground running), you may not get far.
Another option is to hire a lawyer to send a "demand letter" to the company, laying out the facts of your claim and asking the company to settle with you. Of course, you'll need to find a lawyer willing to take the case. This option gives you a chance to go over the facts with a legal pro, who can give you an honest assessment of the strength of your claim. Like filing a charge, however, this option takes you further away from your job prospects, both because you will be spending time on your legal claim rather than your job search, and because the target of your claim isn't likely to become your next employer.
Or, you could simply take things into your own hands and contact the company on your own. You could write a letter or send an email to the hiring committee, letting them know that you are concerned that you may have been turned down because of your pregnancy, which is illegal. You might ask for more detail about the reasons why you were rejected. If the company really didn't know its legal obligations, this will give it an opportunity to correct the error. If the company's decision was based on something other than your pregnancy, this will give them a chance to explain. And, if the company intentionally discriminated against you, you might gather evidence that will help your legal claim.
Ultimately, you'll have to decide whether it's worth your time, money, and effort to pursue the company, or whether you'd rather leave this dispute behind and continue with your job search.
Nolo's online articles on employee rights explain these rights in detail. However, once you have figured out that your legal rights may have been violated, what should you do about it?
Here are several steps you can take to assert your legal rights.
In many cases, your first step should be talking to your employer. An intelligent discussion can resolve most problems or, at least, get your differences out on the table. Most companies want to stay within the law and avoid legal tangles.
Unless you work for a truly uncaring and antagonistic employer, your situation is most likely the result of an oversight, a misunderstanding, or a lack of legal knowledge.
Here are a few tips on how to present your concerns to your employer:
In addition to talking things through with your employer, protect yourself by documenting the problem. Take notes of key conversations and events, including the time, date, and names of others who were present. Gather documents that might support your side of the story, such as company policies, offer letters, performance reviews, memoranda, emails and other correspondence, and employee handbooks.
Be careful, however, to collect only those documents you have legitimate access to. Taking or copying confidential documents -- even if they are related to your dispute -- could get you fired and could compromise your legal claims.
If your coworkers saw or heard any of the incidents that contributed to the problem (such as a verbal performance review, a harassing comment, or a search of your workspace), ask them to write down what they saw and heard in signed, dated statements.
If your employer doesn't seem to be taking your complaint seriously, or you are demoted or fired, consider whether to take legal action. In making this decision, you'll need to take a close look at your motives, your evidence, and your willingness to spend the time and money that legal action requires.
If you decide to go forward, make sure you meet your legal deadlines. The law sets time limits (often called "statutes of limitations") for filing certain types of claims or lawsuits, ranging from several weeks to several years.
If one of these deadlines applies to your case, you will have to think sooner rather than later about whether to go to court. You might want to consult with a lawyer about your problem to figure out how strong your claims are, whether any filing deadlines apply to your dispute, and what you might expect to gain or lose if you file a lawsuit.
Whether you have a wage claim, a workers' compensation claim, or a claim for discrimination or harassment, consider hiring an experienced attorney to represent you. Find one using our Lawyer Directory.
]]>