Know Your Rights: Common Misconceptions about References
As educators weigh their employment options for next year, a common concern arises: What can supervisors legally say to prospective employers about an employee? It’s a good question because there are some common misconceptions about references. For example, some employees may believe a supervisor can’t say anything negative in a reference context. Another misconception is that supervisors are limited to talking about the position an employee held and their dates of employment. And while these types of limitations may be established through an employer’s policy, Texas law is actually much less restrictive.
The goal of this blog is to outline Texas law on this issue so you take steps to maximize your chances of getting positive references while at the same time utilizing available strategies to overcome negative references.
What They Can Say
The general law in Texas provides supervisors a lot of leeway when it comes to references. A current or former supervisor is allowed to say nearly anything that is true, including their opinion about your performance. Additionally, as long as they do not knowingly report false information, they are protected against liability for defamation of character.
What They Can’t Say
Despite the discretion provided under Texas law, discrimination laws still apply in the reference context. It is illegal for a supervisor or employer to give a negative or false employment reference because of a person’s membership in a protected class: race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability, or genetic information.
Additionally, supervisors should not say untrue things about you to a prospective employer. If proven, this might open the door to liability for defamation of character and might also violate the Educator Code of Ethics.
Finally, it might be improper for a supervisor to violate their employer’s policy on references. For example, a policy may restrict negative references and allow supervisors only to state dates of employment and position held. Other policies may require all references to be handled through the human resources department. Although this is more common in corporate contexts, some school districts may have such policies. That’s why it’s a good idea to learn about your current district’s policies covering employment references because those policies may provide more protection than Texas law.
Helpful Strategies to Consider
Obviously, the most helpful strategies are to do good work, be professional, and have good enough relationships with supervisors that they are willing to give you a good reference. While it’s naïve to think everybody will be best friends with their supervisor, it clearly pays to do what you can to avoid personality conflicts that might lead to unwanted and unnecessary scrutiny.
But when that still isn’t enough and you suspect—or confirm—that you are receiving bad references, what else can you do?
Although this won’t work in every situation, one approach is to have a professional conversation with your supervisor to understand their concerns and try to get on the same page. School districts employ a large number of individuals with a wide range of backgrounds, working habits, and personalities, and not everyone is going to get along. So even when things don’t work out, perhaps as a professional courtesy, your supervisor might be willing to help (or at least not hurt) your chances of getting hired elsewhere.
This may also be an effective strategy, particularly if you have a contract, when the supervisor asks you to resign. Some supervisors may be willing to write a recommendation letter “in exchange” for a resignation letter even if they may not believe you are a good fit for your current position or school district. Having a written letter of recommendation you can send to prospective employers may counteract anything the supervisor might say in a verbal reference.
It is also beneficial to send prospective employers the contact information and/or letters of recommendation from previous supervisors or colleagues who you know will give you good recommendations. You can also send prospective employers copies of good evaluations you have received over the years. These may help offset any negative references.
A final strategy is notifying your district, either informally or formally, about the concern. The district’s response may depend on several factors, such as whether there is proof the supervisor is violating any law/policy or the supervisor’s standing in the district. But employees do have the option of contacting their human resources department about employment concerns and/or filing a formal grievance if the concern falls within the district’s grievance timelines. Although it varies by district, Texas is still experiencing staffing shortages, so hopefully, a single bad reference won’t keep you from getting hired. Stay positive and diligent! But more than anything, understanding the law should help you identify strategies to avoid bad references and give you options that may help you overcome them.
