Job candidates occasionally ask us, “Can my former employer provide details in a reference check about the difficult circumstances under which I left?” Here is what you need to know:

National and State Laws

There is no federal law prohibiting an employer from disclosing anything that is accurate and factual about your tenure with the company. Our national laws allow your previous employer to tell your prospective employer that you were terminated or fired, and even provide the reason. Legally, there is absolutely no problem with providing documented facts and honestly held opinions about your term as an employee.

There is one exception: employers cannot reveal confidential information when both parties have signed legal agreements indicating the nature of the non-disclosable information.

State laws vary and provide further specificity. Texas law provides rules for how information may be disclosed, according to NOLO. Reasons for termination or separation must be provided to a prospective employer in writing. Over the phone, your previous employer may share information about your job performance, attendance, attitudes, and effort.

If you know that your previous employer has been called, Texas law affords you the right as a former employee to request the information that was shared. Within ten days of receiving the former employee’s request, the employer must send a copy of written disclosure or true statement of verbal disclosure, along with the names of the people to whom information was given.

If you receive these disclosures and believe that an untruthful claim was made, you may have legal recourse if you can prove your case. You can learn more about next steps by contacting the Texas Workforce Commission.

HR Disclosure Policies

Although the law doesn’t set strict limitations, other than what is accurate and factual, companies are concerned about potential defamation lawsuits. There are two types: libel and slander. Libel is an untrue defamatory statement made in writing, and slander is one spoken verbally.

To the extent that subjectivity plays into an employer’s perspective, it is possible that a former employee could challenge statements as libel or slander in court. For this reason, many larger organizations have human resources policies in place to limit disclosure of former employee information in reference checks. Some even limit the information to confirming job titles and dates of employment. Many smaller companies do not have a policy regarding disclosure of termination information.

So why wouldn’t companies err on the side of caution and limit what they can tell your prospective employers? Companies with restrictions on what can be disclosed may hurt former good employees. Prospective employers may think, “If this person performed well, why isn’t the former manager or HR manager willing to say so?”

So what should you do if you left a former employer under adverse terms? If you need to provide the employer as a reference, you may inquire as to their disclosure policies and what they would say about your performance in particular. If you left in a stressful situation, it may be possible to smooth things over and have a productive conversation that enhances their perception of you. This is especially likely if you had a conflict with a superior who later left under adverse circumstances.

If you have any doubts as to what a former employer might say, you have nothing to lose by calling and exercising your right to know.