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Legal Clinic

Contacting Current Employers

It is generally considered bad manners to seek references from a job candidate's current employer, but it usually doesn't lead to liability. The result may differ, however, if the candidate is seeking a federal job and he or she specifically rejected a request for such contact.

Tuesday, September 7, 2010
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Question: When job candidates list their current employers on company forms as part of our background-checking process, are we permitted to contact their current employers? Would the company be liable if we checked the current employment and then the candidate was fired?

Answer: Normally, a current employer is only contacted if the applicant gives permission, as many people who apply for new positions do not want their current employer to know they are planning to leave.

There are two common reasons for this reluctance. First, the applicant may not want their current boss to know they are job-hunting; they don't want to burn any bridges with their current employer until they know they have a new job waiting. Second, the applicant may be afraid their current supervisor will say something negative about them. 

Although it is not illegal for a potential employer to contact the applicant's current employer, it is generally considered bad manners to do so without the applicant's permission. 

If the applicant has explicitly stated, either at the interview or on the application, that their current employer may not be contacted, to do so would generally be considered unprofessional. However, an employer who contacted an applicant's current employer with either no permission or against the express wishes of the applicant would incur no legal liability if they did so.

There are other methods to deal with the problem of contacting an applicant's current employer. 

First, an employer could require a reference check from a current employer, with the caveat that if the applicant is unwilling to inform their employer of their job hunt, that if a firm offer of employment is made, it will depend upon a positive reference from said current employer in order to move forward. 

Or, second, the employer could ask the applicant to explain their reluctance and work through it with them. If you can persuade them to let you contact their employer, give the candidate a day or so to go back and have their own conversation with their supervisor, so that your call won't catch the supervisor off-guard. 

If they're afraid the supervisor will say something bad about them, ask them to describe what they think the supervisor will say and why they think he or she will say it.

Sometimes, there's legitimate negative information that the candidate would rather you not hear; however, sometimes the problems are with the boss and not with the employee. If the candidate thinks you may get negative information from a current supervisor, assure them that their own explanation of the situation will also help you weigh what you hear. Or, they can give you alternative names of co-workers and supervisors that can be contacted for a different point of view.

It is interesting to note that, in the case of a federal agency as an employer that it may lead to liability for intentional and improper disclosure under the Privacy Act (5 USCS § 552a) if a current employer is contacted when the applicant has clearly indicated that such contact should not occur.

In one case, an applicant for a position with the U.S. Postal Service checked "no" on the application form when asked whether his current employer could be contacted. When the Postal Service nonetheless contacted the applicant's employer, he was fired, and also was not hired for the Postal Service job. The district court held that the applicant had a cause of action under the federal Privacy Act. Sullivan v United States Postal Serv., 944 F Supp 191, 12 BNA IER Case 428 (W.D.N.Y. 1996).

Question: We have an employee who used 12 weeks of Family Medical and Leave Act leave in 2009 and has not been able to return to work in 2010. Is she entitled to another 12 weeks of FMLA effective Jan. 1, 2010?

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It's important to remember that an employee needs to satisfy both the 1,250 work-hour and the 12-month eligibility requirement to take FMLA leave. There are several options for determining the 12-month eligibility period:

* The calendar year;

* Any fixed 12-month period, like a fiscal year;

* The 12-month period that begins with the first day of FMLA; or

* A "rolling" 12-month period that's measured backward from the date the employee uses any FMLA leave.

29 CFR § 825.200.

In addition, to qualify for leave, employees need to work at least 1,250 hours during the 12 months that immediately precede the FMLA leave.

But the lines can often blur regarding what counts as hours worked. Here's some clarification. To be eligible for FMLA, an employee must have worked at a company for at least 12 months (not necessarily consecutively) and logged 1,250 hours worked in the previous year. The 1,250 work hours are defined by the Fair Labor Standards Act. Paid or unpaid vacation, paid or unpaid sick time, previous FMLA leave or other leave hours don't count towards the 1,250 hours. 29 CFR § 825.110. 

Back to the question: If the employer uses the calendar year to measure the 12-month eligibility period and the employee worked at least 1,250 hours in 2009 (which is the 12 month period immediately proceeding 2010), then that employee would be eligible for FMLA leave as of Jan. 1, 2010. 

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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