The answer to this question depends on state law. Some states will allow a past employer to say anything as long as the employer honestly believes that what it is saying is true. The majority of states limit the information allowed to be given out about a previous employee to the date hired, date separated, title or job position, and a few allow a salary range.
If you are in a state that allows the employer to say anything he or she wants or are concerned about what your supervisor will say, there are a few things you can do. If your previous employer has a human resources department, provide the potential employer with the phone number of that department. Those in the HR department are experienced in providing neutral information. If you are asked for the name of your supervisor, provide the name, but not that person’s direct phone number, which will cut down on potential problems from a supervisor who holds a grudge.
If there is no way around the potential employer speaking with your former supervisor—as in the case of a small company where there is no human resources department or where your supervisor is the owner—or if you know for sure that a former supervisor is saying negative things about you, you should prepare your potential employer. While you should be honest, you want to present this in the best possible light. For example, saying, “My supervisor and I had a personality conflict,” is much better than going on about how mean and nasty your previous supervisor was to you. Along with that honesty, be prepared to provide this potential employer with the names and phone numbers of people who can provide good work references for you, such as other former supervisors.
Before you take a former employer to court, which can be very expensive, make sure that the former employer is really providing a poor reference. It could be that the potential employer has received erroneous information from one of your former co-workers, who is spreading rumors. Also, the potential employer could have misunderstood something said in a reference.
In most states, in order to successfully bring a lawsuit against a former employer, you will need testimony from a potential employer that has decided not to hire you based on what the former employer has said. The majority of potential employers will not be willing to get involved in any lawsuit, no matter how valid.
If you believe that your past employer is lying about you and keeping you from being offered new employment, you will have quite a lot to prove in court. This is where a local employment attorney can assist you in structuring your case in accordance with your state laws.