Job applicant's options when boss gets reference call

October 7, 2014 by CARRIE MASON-DRAFFEN / carrie.mason-draffen@newsday.com

DEAR CARRIE: I have a question about employer interviewing tactics. I recently interviewed for a job and was among the finalists for the position. On my application I provided references, as requested. But I also checked off the section about not contacting my present employer. Despite that, I received an email from the interviewer requesting references and my current employer contact information. I wrote back and relayed my concern. The response was, "That is fine; we understand your concern and will not contact them." But the company called my manager anyway. Needless to say, my boss is quite upset, and my relationship with him and the company has deteriorated. To make matters worse, the new company did not offer me the job. Do I have any legal recourse because the company broke its agreement not to contact my current employer? Is this a breach of contract? I have already suffered consequences. -- Still Employed but Upset

DEAR STILL EMPLOYED: You may have some recourse, but it will depend on what you suffered because of the company's faux pas, said Alan Sklover, an employee-rights attorney in Manhattan.

A legal recourse requires that two elements exist in any given situation, said Sklover, the author of "Fired, Downsized or Laid Off: What your employer doesn't want you to know about how to fight back" (Henry Holt and Co., 2000).

The first is "liability," meaning that someone did something wrong. The second is, "compensable damages," or harm from a wrongful act for which you can be compensated.

"If one car bumps into another," he said, illustrating the point, "the driver of the first car has no doubt done something wrong. However, if there is no scratch, dent or damage to the second car or its occupants, there are no compensable damages and, for that reason, no legal recourse."

Similarly, he said, "If the consequences you suffered were limited to your not being invited to your manager's birthday party or being excluded from your usual lunchtime group, you probably have no compensable damages and, thus, no legal recourse."

But he added, "If you were denied a bonus you deserved, refused a raise you earned or passed over for a promotion that was given to a person with less experience and talent, and you were told these things happened due to your being caught interviewing for a new job, you surely do have legal recourse available to you."

The legal theories you could possibly use for recourse might include, as you mentioned, breach of an implied contract, or negligence in fulfilling a "duty of care" to you or if you think it was done intentionally, what is called "tortious interference."

But he suggests that you push for a settlement before resorting to litigation.

"This means that before you consider expensive lawyers and time-consuming lawsuits, you should always consider the wisdom of resolving things amicably," he said.

So he suggests that you write a letter to the president or chief executive of the other company explaining calmly and professionally how your experience "poisoned" your good relationship with your manager. You could explain that despite assurances that the managers wouldn't contact your current employer, someone was inattentive. Mention that you hold no ill will and request a preference for being hired for the next available opening, he said.

"If you are ignored or treated poorly by the company that erred, you can always sue them later on," he said.