What can a previous employer say about you in Texas?

What the law says

Texas lets employers share the truth. Under section 103.003(a) of the Texas Labor Code, an employer may tell a prospective employer about a current or former employee’s job performance. It may do so

“on the request of the prospective employer or the employee.”

So either side can start it. A new employer can call your old one, or you can ask your old employer to send a reference, under section 103.003(a) of the Texas Labor Code.

What job performance means. Under section 103.002 of the Texas Labor Code, it is the way an employee does the job. It includes attendance, attitude, effort, knowledge, behavior and skills.

Who counts as an employee. Under section 103.002 of the Texas Labor Code, an employee is anyone who performs services for an employer, whether or not they are paid. So the rules cover volunteers and unpaid interns too. An employer is anyone with at least 1 employee or other person working under a contract of hire, written or spoken.

Who counts as a prospective employer. Under section 103.002 of the Texas Labor Code, it is any employer you applied to, in writing or out loud, or sent a resume or a letter showing interest in working there.

Why the law exists. Section 103.001 of the Texas Labor Code says the legislature found that truthful disclosures protect employment relationships, and meant employers to be immune for information any employer would reasonably believe to be true.

What changes the answer

When the protection ends. Under section 103.004(a) of the Texas Labor Code, the employer is immune from civil liability for a disclosure unless it is proven that the employer knew the information was false when it shared it. The protection also ends if the employer acted with malice, or with reckless disregard for whether the information was true.

A high bar. Under section 103.004(a) of the Texas Labor Code, that has to be proven by clear and convincing evidence. Knew means actual knowledge, including from what the employer kept in its own file on the employee.

Managers too. Under section 103.004(b) of the Texas Labor Code, the same rules cover a manager or other representative who is authorized to give references and gives one under the chapter.

No reference is required. Section 103.005 of the Texas Labor Code says:

“This chapter does not require an employer to provide an employment reference to or about a current or former employee.”

So an employer may decline to give any reference at all, under section 103.005 of the Texas Labor Code.

Nurses. Under section 103.003(b) of the Texas Labor Code, an employer may not disclose information about a licensed nurse or licensed vocational nurse about conduct protected under the Occupations Code. The nurse must be given a chance to submit a statement of reasonable length.

Saying why you were fired. Under section 52.031(d) of the Texas Labor Code, when a fired employee or a would-be employer asks, a company may give:

“a written truthful statement of the reason for the discharge.”

That written statement cannot be the basis of a libel suit against the person who gives it, under section 52.031(d) of the Texas Labor Code.

Blacklisting is a crime. Under section 52.031(b) of the Texas Labor Code, it is an offense to put a former employee’s name on a list, or publish it, intending to stop them from getting any other job. Working with others to keep a fired employee from finding work is an offense too.

The penalty. Under section 52.031(c) of the Texas Labor Code, blacklisting is punished by a fine of $50 to $250, 30 to 90 days in jail, or both.