What questions are a prospective employer allowed to ask a previous employer?

Answer 1

In this climate of litigation, the probability is that most organizations that have been given the proper legal advice will only disclose three pieces of information about you, no matter the quality of the job you did:

1. Dates you were employed.
2. Your job description or employment capacity.
3. Your salary information.

Some information is absolutely prohibited from disclosure:

1. School records, without your consent;
2. Criminal history, though this varies from state to state and the nature of the prospective employer (however, your criminal record is public info, available to all);
3. Medical records, without your consent;
4. Questions about a disability you may have, unless that disability impinges directly on your ability to perform the job even if the prospective employer makes "reasonable accommodations";
5. Certain governmental records, such as personnel records of local or state employees in some jurisdictions (Even if not provided by your previous employer, government employee records are public info);
6. Your history of worker's compensation claim(s).

Your driving record is public record and can be released without your consent.

Legal Realities

Your previous employer does not have to answer any questions. (Remember the First Amendment? Freedom of speech is also freedom not to speak.) The past employer bears significant liability for a defamation action by you if it reveals any information that is both (1) untrue and (2) damaging to you. If the answer prevents your getting the job, it is damaging to you.

As stated at the beginning of this answer, most organizations, particularly large organizations, governmental organizations, and smaller organizations that have been given good advice by lawyers have very strict policies governing what information is allowed to be released about you.

If you are unsure about a potential reference there are several companies that will check your references for you and give a detailed report. Put "reference check" in a search engine and you will discover information about many such businesses.

If the referee is very pleased with you, (s)he may be inclined to give a glowing reference, but, again, the strict policies apply, and in today's era of litigation, the probability is that the organization will remain silent except for the three pieces of information mentioned at the beginning of this answer. Further, the referee that gives out the "glowing" reference may be exposing her or his organization to liability should your prospective employer suffer damages because of you--the present employer may bring an action against the referring employer for failing to disclose the negative information.

One way people gather information about applicants while reducing liability is for an individual person working for the prospective employer, acting, supposedly, "as an individual," to contact the referee at home in her or his capacity "as an individual," so that the referee is not acting as an agent of the organization. That way, sometimes, information flows more freely, but an individual contacted will still fear saying much that is negative about you for fear of a legal action by you, as already described, or a governmental entity, such as the Equal Employment Opportunity Commission (EEOC) or your state's version of the EEOC.

This is a complex topic. The above is, admittedly, a simplification. We recommend you seek some additional information.

There is a good and readable summary of the legal issues (albeit for California only) here:

http://www.esrcheck.com/ESRPublications/Reference_Checking.html

Answer 2

Think of items that they can't legally ask you in an interview: ie. religion, age, sexual orientation, medical history, and general other personal questions whose answers could lead them to not hire on discramatory grounds. Pretty much everything else is fair game.

Answer 3

A potential employer is limited in the types of questions he can ask your current employer. Generally, he can only ask things like if he would ever rehire you and if you are currently working there.