New York Lawyer
July 22, 2004

Q:
Your answer of last week discussed the problem of good performance ratings abruptly changing into a poor performance rating when lay-off time came.

Taking this one step further, how does the laid-off associate address the issue of prospective employers calling the prior firm and getting off-the-record comments about the former associate?

During the interview process, I routinely get interviewers discussing who they know at the firm, and asking if I worked with them. One interviewer went so far as to state that they had a friend in a branch of the firm and maybe they should give him a call. I was shocked as I had not worked with or even knew his friend. Some recruiting coordinators have gone into detail about the good friend they have in the recruiting group of the old firm, as if to rattle me. It�s bad enough to lose your job and be thrust out into the street in a bad economy for no fault of your own, but to have the lies follow you is really too much.

While the practice of informal "references" may well lead to slander, how could you ever prove it happened? How do you deal with this at an interview without having to relate all the lies and thus condemn yourself?

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A:

At first I thought your issue was simply an employer or headhunter calling non-designated people. Now, reading between the lines, it could be that some former colleagues may have heard about or talked about rumors concerning you and your performance that, in your view, are not true, and you�re afraid those rumors may be unfairly propagated in freelance chats with the outside world.

If someone says something about you that is absolutely not true, that�s actionable as slander of course, but whether you would do anything about it (or, as you point out, could prove it) is another matter entirely.

Dealing with this in a non-legal way, which in all likelihood is how you would handle it, I would look at each situation factually. If someone says they will call someone whom you never worked with, you can point out that there are other people whom you worked with closely who would be more logical to call. You could also request that, if the person speaks with these individuals, and as a result of those conversations has any questions, that you would appreciate a chance to answer any of those questions. Choose your words carefully: don�t say you would want a chance to "respond" or anything that sounds defensive or adversarial, but rather that you want to "clarify" any "issues or concerns" that might arise.

In any event, you don�t want to go on and on about this nor do you want to appear "rattled" by suggestions of people who might be called. Others will be sensitive to this if it appears you are uncomfortable with calling anyone who�s not on your approved list, and wonder what the problem is. So deal with the issue briskly, by pointing out that people who worked with you necessarily have the most accurate knowledge, and that others may not have accurate knowledge, and leave it at that.

Sincerely,
Holly English
Principal Consultant, Values at Work