Employment laws protect the rights of employees. When those rights are violated, employees have the right to take legal action. Depending on the nature of the violation, they may be entitled to lost wages, compensation for emotional distress, and other remedies.
Some employees are reluctant to pursue claims against a former employer because they worry that bringing a lawsuit will jeopardize their ability to obtain future employment. Fortunately, those fears are usually unfounded. Comparing the following two fears to the most likely reality will help you understand why you should not let a former employer get away with violating your rights.
Fear No. 1: If I file a lawsuit against an employer, future employers will learn about it.
While this could happen, it usually doesn’t. In some cases, legal claims are resolved without filing a lawsuit. Even when a lawsuit or administrative claim is filed, few potential employers take the time to scour the public records in each of the many courts and agencies in which a claim might be filed. The reality is that most employers only run criminal background checks on prospective employees. A civil lawsuit will not show up in response to a criminal background check.
It’s also worth asking yourself whether you want to work for an employer that would take the time to investigate whether a prospective employee ever sued another employer. An employer that would invest much time and expense in a search that usually returns no results must have a reason to fear being sued. Employers that try to screen out potential litigation threats are often engaged in the kind of illegal or unethical employment practices that invite lawsuits. If you are thinking about suing an employer who violated your rights, you know that working with another employer that breaks the law is the last thing you want to do.
Good employers understand that it is unlawful to reject an employment application because an applicant made an employment law claim against a different employer. Employers can be sued for retaliation if they base hiring decisions on an applicant’s earlier opposition to unlawful employment practices. Human resources personnel usually avoid inquiring about prior lawsuits that a job applicant filed because those inquiries can expose the hiring employer to a lawsuit of its own.
Fear No. 2: If I sue my employer, it will badmouth me and tarnish my reputation.
People who look for a new job are often worried that their last employer will give them a bad reference. They fear that making a legal claim against an employer, or even criticizing the employer’s unlawful behavior, will cause the employer to sabotage the search for a new job.
In reality, employers are often afraid to give a negative reference. If they don’t want to give a positive reference, they typically won’t give one at all. They will simply confirm the dates of former employment and will claim that it is the policy to not give references.
Employers have adopted that practice because they fear the consequences of giving a bad reference. If they give a negative but honest reference in good faith because an employee did not perform to expectations, they aren’t violating the law. But if an employee has made a legal claim for the violation of an employment law, giving that employee a negative reference may be perceived as an unlawful act of retaliation. For that reason, the safest practice is to give a neutral reference or no reference after an employee brings a legal claim for employment law violations.
For that reason, taking a legal action against your former employer can actually help you get a new job and protect your reputation. At Saenz & Anderson, when we negotiate a settlement on behalf of our clients, we insist on a settlement condition that precludes your former employer from making any disparaging comments about you. We also ensure that your former employer is prohibited from giving you a bad employment reference. As a result, any references given by that employer will simply confirm general information about your employment, such as your dates of employment, position, and salary.
The terms of settlement agreements are binding on both parties. If the employer violates the agreement by giving you a negative reference or making disparaging comments, the former employee can sue for breach of the settlement agreement. Since another term of the agreement will likely require the employer to pay the former employee’s legal costs to vindicate a breach, employers rarely invite litigation by giving a negative reference.
Of course, no assurances can be provided as to your former employer’s behavior in response to your lawsuit, as there are some unscrupulous employers who are willing to disregard legal and ethical principles. In the vast majority of cases, however, those fears are unfounded. Always remember that your rights have no value if you don’t use them. Employees who live in fear of retaliation are setting themselves up to be victims again and again.
If you are considering whether to take legal action against an employer, feel free to reach out to us for a free case evaluation. Our dedicated team focuses on employment-related matters. We help employees who are victims of wage theft, unpaid overtime and minimum wage, employment discrimination, workplace harassment, wrongful termination, and other job-related legal issues.