Firms Can’t Bar Claims if Comments Malicious

Employee Rights Attorney

Mission Viejo, California

Q: “Recently, I have seen several public sector employment applications with what appears to be new phrasing.

“The applications state that the applicant agrees to release current and previous employers from liability for damage that may result from the employers’ responses during background checks.

“I thought this practice or requiring applicants to sign away their rights was illegal. Do you have any suggestions on how to deal with these applications?”

A: “It is not unusual for an employer or any other party to require others to sign a release before entering into a relationship.

“It is certainly legal to require people to waive rights on past claims. It also is legal to obtain a limited release on certain claims that might arise in the future.

“Indeed, past employers may be reluctant to give candid responses without having you sign some sort of a release first.

“Releases of liability in the future are limited to negligent wrongful acts. They do not extend to intentional reckless or malicious types of violation. It also is not appropriate to release claims that you have a right to pursue by statute.

“If you refuse to sign such a release, you may give up employment opportunities, however. You might consider signing the release, then trying to monitor any impact on you.

“If you end up getting the job, you might be willing to overlook any negative comments. But if you don’t get the job, you may be concerned whether your former employer went beyond good faith opinions, making malicious or intentionally erroneous comments about you.

“If you feel the comments were malicious or intentionally incorrect, you might have a claim against your former employer, regardless of the release.”