One of the most common questions I receive over at Ask a Manager is what to do about a previous boss who is likely to give you a bad reference.
First, yes, it's legal for an employer to give a negative reference as long as it's factually accurate. It's true that some companies have policies that they will only confirm dates of employment and job duties and will not comment on the employee's performance—but (a) these policies are simply policies, not the law, and (b) good reference-checkers know how to get around them, by asking the candidate to arrange a direct call with the candidate's former manager.
So, what do you do if you think a previous boss is likely to give you a bad reference? Simply not listing that person as a reference isn't enough; reference-checkers can call anyone you've worked for, or who might know you, even if they aren't on the list you provide. In fact, smart reference-checkers will make a point of calling people not on your list, because presumably you've only listed the people most likely to present you in the best light.
But don't panic. Here's what you can do:Call your old boss and ask if she'd be willing to reach an agreement with you on what she'll say to future reference calls. It's at least worth a shot—the worst that can happen is that she'll say no. When you call, say something like this: "I'm concerned that the reference you're providing for me is preventing me from getting work. Could we work something out so that this isn't standing in my way?" Employers who either (a) take pity on you or (b) are terrified of lawsuits may be willing to work something out with you. Also, if relevant, it won't hurt to soften her up a little first by telling her that you've learned from the situation, appreciate the chance she gave you, etc.If you think the reference your boss is providing is factually inaccurate, skip her and go straight to your old company's HR department. Explain that your boss is giving an inaccurate reference for you and that you are concerned she is standing in the way of you obtaining employment. HR people are trained in this stuff, will be familiar with the potential for legal problems, and will probably speak to your old boss and put a stop to it. (If it's a small company and there's no HR department, contact the old boss directly and politely explain that she's exposing her company to legal risk by defaming you and jeopardizing your ability to gain employment.)If all else fails, you may need to simply warn prospective new employers that the reference won't be a good one. And you do want to give this warning, because it allows you to provide context and framing for what they might be about to hear. If you don't, they may never tell you that the reference is why they rejected you, so the time to speak up is before they place the call. How you explain it depends on exactly what's behind the bad reference, but your goal is to put it in the best possible light. For instance, if your relationship with your boss soured after a particular event, you could say something like, "By the way, I had glowing reviews from my boss at that job, but our relationship became strained toward the end and I worry that it could color that reference." Be prepared for questions about what caused the strain, of course.
You can also offer up former coworkers, clients, and others who can speak to your work, and even old copies of performance reviews if you have them. Sometimes the mere offer of these things will provide the reassurance employers are looking for.
Alison Green is chief of staff for a medium-size nonprofit, where she oversees day-to-day management of the staff as well as hiring, firing, and staff development. She is working with the Management Center to coauthor a book on nonprofit management. Her writings have been published in the Washington Post, the New York Times, Maxim, and dozens of other publications. She blogs at Ask a Manager .