If your employer broke the law, you have a right to act. And in most cases, what you do in response is protected under the law. Your employer cannot retaliate against you for speaking out or for filing a lawsuit because you were discriminated against or harassed in the workplace.
Despite these protections, many employees are reluctant to take action because they worry how it will affect any future employment scenarios. Just because your current employer cannot act against you doesn’t mean a future potential employer won’t reject you for a position. While it is illegal for any company to retaliate or discriminate against you for engaging in protected activity even while working for another company, proving that the prospective employer is rejecting you for that reason can be exceedingly difficult.
Of course, companies that are acting above-the-board and not allowing discrimination or harassment to occur will understand – even give you credit for – fighting back.
But unfortunately, there are also employers that, even if they do not allow illegal activity in the workplace, still have concerns about hiring someone they believe could cause trouble.
Should You Be Concerned about Future Employers Finding Out You’ve Filed a Legal Claim Against Your Current Employer?
First and foremost, it’s important to understand there are privacy measures in place for handling problems in the workplace.
For instance, most cases filed with the Equal Employment Opportunity Commission are confidential and the documentation from the cases are not public record. The information only becomes public if the EEOC files a lawsuit on your behalf, but the report you file with the EEOC itself is private.
National Labor Relations Board investigations are also confidential. However, if the investigation goes to an administrative law judge or into court, it will be made a matter of public record.
You can view the confidentiality policy for the EEOC here and the policy from the NLRB here.
And of course, if you file a lawsuit in court, it is public record and it will likely turn up in any background check a future employer runs for you.
What about References?
Assuming your complaint did not progress to the legal system and was handled internally by your employer’s human resources department, there is still a chance future employers could find out. HR representatives are supposed to keep discrimination and harassment reports confidential, but this confidentiality is only protected by law if your complaint was related to illegal activity.
So, for instance, if you filed a report about sexual harassment in the workplace and HR retaliated against you by telling a prospective employer about the complaint, you could take legal action. However, if you filed a complaint about your supervisor’s actions that were not illegal – maybe accusing him or her of incompetency – it wouldn’t be illegal for HR to share that information with someone calling for a reference.
In most cases, HR representatives err on the side of caution, but you shouldn’t be 100 percent certain things you’ve done at a previous job will be kept from a potential employer.
How You Can Protect Yourself
If you are leaving your current employer and you are concerned what information could leak to a future employer – and you have the opportunity to negotiate a severance agreement – you can address the matter in the negotiations. Keep in mind, it might be easier to negotiate your ability to explain your situation in full to a prospective employer, as opposed to negotiating complete confidentiality.
It’s important you be free to speak openly and honestly about how you were treated by a previous employer, so if you’re asked to sign a non-disclosure agreement, give it careful thought before doing so.
If you would like more information about filing a lawsuit against your employer or you are interested in what protection you have in the workforce, should you take legal action, we can help. Contact Borrelli & Associates, P.L.L.C. to discuss your situation.
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