The Perils of Discussing Ex-Employees With Their Potential New Employers and Other Non-Recommended Proactive Measures

11.24.2025

Alice Roosevelt, as the story goes, had an embroidered pillow reading “If you can’t say something good about someone, sit here by me.” When employers are bending over backward to comply with the onerous California employment laws, there is a huge temptation to want to warn the next employer what they are getting themselves into. And since truth is a defense against defamation, that should be fine, right?? The answer is not as clear as you would like.

Being Sassy May Not Be Protected

In Hollis v. R &R Restaurants, Inc. (9^th Cir. 2025) 2025 WL 3212363, an exotic dancer who worked at Sassy’s restaurant sued the restaurant and its owners in 2021 claiming misclassification as an independent contractor. After the lawsuit was filed, a Sassy’s manager, who also managed another club called Dante’s, cancelled Hollis’ scheduled appearance at Dante’s, stating he wanted to protect Dante’s from legal liability after Hollis had sued Sassy’s. At first blush, it would seem that the manager was doing the right thing by minimizing Dante’s contact with a litigious employee. However, in response, Hollis amended her complaint against Sassy’s to add a retaliation claim. The lower court held that because Dante’s did not employ Hollis, her retaliation claim was barred. The Ninth Circuit disagreed and found that the manager only had to act “indirectly in the interest” of Sassy’s to create a retaliatory scenario. Thus, not only was Dante’s potentially setting itself up for a litigation inferno if it did not hire an employee who had sued her former employer, Sassy’s could also be held liable for retaliation under the Fair Labor Standards Act (“FLSA”) for sharing information with another employer.

Silence May Not Be Golden

If a potential employer can retaliate against a potential employee, and if the plaintiff need not have been employed by the actual employer when retaliation occurred, it would appear the best approach might be to say nothing. But one court has gone so far to suggest that interference with an employee's new job prospects, where a refusal to give a job reference or giving an unjustified negative reference is based on a retaliatory motive, can constitute retaliation. Hobdy v. Los Angeles Unified School Dist. (C.D. Cal. 2008) 2008 WL 11334085 at fn. 15. Thus, the mere act of refusing to say something could be construed as retaliation under Title VII.

Going On The Offensive Might Actually Be Offensive

In Arias v. Raimondo (9^th Cir. 2017) 860 F.3d 1185, an employer’s attorney was found liable for retaliating under the FLSA. Arias was a milker at a dairy, and he was hired even though he was not eligible to work in the United States. When he tried to work at another dairy, his employer threatened to report the other dairy to federal immigration authorities as an employer of undocumented workers, which caused Arias to forego this other employment opportunity. Nine years later, Arias brought a PAGA collective action against the dairy for a variety of wage and hour violations. Ten weeks before the state court trial, the dairy’s attorney, Anthony Raimondo, set in motion a plan to have Arias’s PAGA case derailed by having U.S. Immigration and Customs Enforcement (“ICE”) take Arias into custody at a scheduled deposition, and then remove him from the country. When Arias got wind of the plot, fearing he would be deported and separated from his family, he instead participated in a settlement conference and entered into a settlement to avoid deportation. This tactic of having complainants deported had been used by Raimondo five previous times.

Approximately two years after the settlement, Arias filed a federal lawsuit against the dairy, its owners, and Raimondo for retaliation under the FLSA. The dairy and its owners settled this lawsuit quickly, but Raimondo fought it on the basis he was not Arias’s employer and could not be held liable for a FLSA violation. The district court agreed with him, but the Ninth Circuit reversed, finding the anti-retaliation provision making it unlawful for “any person” to discharge or in any other manner discriminate against an employee because they have filed a complaint applied to Raimondo.

Other Actions That Have Been Construed Retaliatory

Filing false criminal charges against a former employee who complained about discrimination has been construed as retaliation under Title VII. Berry v. Stevinson Chevrolet (10^th Cir. 1996) 74 F.3d 980, 984, 986.
Transmitting a negative job reference to the Army, in retaliation for the plaintiff filing an administrative discrimination complaint against the Navy, was retaliation under Title VII. Hashimoto v. Dalton (9^th Cir. 1997) 118 F.3d 671, 673,675.
Firing workers who are suspected of planning to file workplace safety complaints, to discourage the filing of those complaints, is unlawful preemptive retaliation. Lujan v. Minagar (2004) 124 Cal.App.4^th 1040, 1046.
Reporting a former employee to Immigration and Naturalization Service (INS) in retaliation for bringing an unpaid wages and overtime claim is retaliation under the FLSA. Contreras v. Corinthian Vigor Ins. Brokerage, Inc. (N.D. Cal. 1998) 25 F.Supp.2d 1053, 1056.

Consequently, not only is a negative reference potentially a retaliatory act, more aggressive actions like contacting ICE or filing criminal charges against an employee could backfire. In short, as frustrating as it is to get sued by your employee, going on the offensive can often backfire and lead to additional liability.

Employer Takeaways

Not saying anything can be just as damning as speaking truthfully about an ex-employee. Evey employer should have a reference policy where only dates of employment and position held are released in response to to a reference inquiry.
Taking aggressive action like trying to get a plaintiff deported or filing non-meritorious criminal charges can backfire and should be avoided. Similarly, the mere act of threatening to file criminal charges to induce certain behaviors can expose employers to potential extortion claims.

Filing counterclaims rarely succeed because it always looks like the big, bad company picking on the little guy. Instead of focusing on leverage by placing former employees at risk, employers should concentrate on taking justified actions to rid themselves of malcontents.