My former employer violated severance agreement. What do I do know?
I interviewed for a position and got very deep into the process. I suspect I was about to be offered the position then all of a sudden I got a call saying they had bad news for me. They said one of their consultants was a personal friend of the president of the organization I was at and after getting negative feedback from him they were terminating any further talks. The employee telling me that was a huge mistake on his part I’m sure he’s probably reflecting on now.
In my settlement agreement, it clearly states that the only information they will give out about me when asked is my dates of employment and my title. And another section it also says they will not disparage me.
I am going to reach out to their HR to speak to them today. I am wondering if they are going to say that the president talking to the consultant was a personal matter since they were friends and not through the organization itself. what should my response be if that is the case?
I don’t want to go as far as actually suing them, but I want them to acknowledge that they violated the agreement and confirm it will not happen again.
Jobadvisor
This is a frustrating and potentially serious situation. You're right to want to address this, as it seems your former employer may have violated your severance agreement in two ways:
By disclosing information beyond your dates of employment and title.
By engaging in disparagement through negative feedback that cost you a job opportunity.
Here's a breakdown of what you should do and how to handle your upcoming conversation with their HR, particularly concerning the "personal matter" defense.
Initial Steps and Documentation
Before you talk to HR, make sure you have your evidence and agreement clearly organized:
Locate Your Severance Agreement: Have the document ready. Specifically, highlight the clauses that cover:
Reference Policy: The section that limits what information (only title and dates) they can provide about your employment.
Non-Disparagement Clause: The section where they agree not to say anything negative or detrimental about you.
Document the New Information: Write down everything you were told by the potential employer while it's fresh:
The name and title (if you have it) of the person who called you.
The exact date and time of the call.
The precise wording they used about why they were terminating the process (e.g., "negative feedback," "personal friend of the president," "consultant").
The name of the consultant (if known) and the name of your former organization's president involved.
Strategy for Talking to HR
Your goal is to get an acknowledgement of the violation and a firm, documented commitment that it won't happen again, without immediately escalating to a lawsuit.
The "Personal Matter" Defense
You are anticipating that HR might try to argue that the president speaking to the consultant was a "personal matter" between friends and therefore not an action of the organization itself.
Your Response Strategy:
Challenge the Distinction: You need to emphasize that the president's role and their access to information stem from their position within the organization, making their actions directly attributable to the company, regardless of the personal connection.
What to say: "The information shared by your organization's President to an external consultant was about my employment with the company. The President is the highest-ranking executive of the organization. Their actions, especially when discussing a former employee's tenure, are inseparable from the organization itself. This was a violation of the agreement's spirit and letter, which was intended to protect me from this kind of interference."
Focus on the Outcome: Regardless of the nature of the relationship, the information exchanged caused a material breach of the non-disparagement clause.
What to say: "The fact is, a representative of your organization—the President—provided negative feedback about me that led directly to a job offer being rescinded. That feedback clearly violates the non-disparagement clause of my severance agreement. Whether they were speaking on the phone or over dinner is irrelevant; the disparagement occurred."
Insist on Accountability: The company is responsible for the conduct of its executive officers, especially when that conduct violates a signed contract.
What to say: "The severance agreement is with the organization, and the organization is responsible for ensuring all its officers, including the President, comply with its terms. I need the organization to acknowledge that this violation occurred."
Demanding Action
Once you have firmly made your case, you need to transition to your requested outcome. Do not leave the conversation without a clear path forward.
Ask HR to Confirm Two Things in Writing:
Formal Acknowledgment: "I require a written acknowledgment from the organization that a breach of the non-disparagement and reference clauses of my severance agreement occurred on [Date of call from potential employer]."
Assurance of Future Compliance: "I require a written commitment that the organization will take all necessary steps to ensure that this never happens again, including informing all relevant parties and executive leadership about the specific terms of my severance agreement."
Crucially, do this in writing. After your initial call, follow up immediately with an email summarizing your conversation and restating these two demands. This creates a paper trail.
If HR resists or offers only a verbal apology, you can state, "I understand your position, but a verbal acknowledgement isn't sufficient given the financial harm this breach has caused me. I need the organization to stand behind its contract in writing."
Final Thought on Legal Action
You mentioned you don't want to sue, and that's understandable. However, understand that your leverage to get them to comply with your demands is the threat of legal action. By having your evidence and a clear, professional communication plan, you may be able to achieve your goals without ever having to file a suit. If they stonewall you, consulting with an employment lawyer for a brief consultation would be wise to understand the potential value of your claim, which often prompts a former employer to take your demands seriously.