Hi Reader,

Part three of our conversation with Justin Clark of JLC Employment Law, who spent years representing companies before switching sides to represent employees.

The questions we get most after a layoff are about the next job. Will this follow me? Will they tell people anything about my performance? Will a background check surface something I don't even know about?

We put all of it to Justin, including a few things he's seen from the inside as a former in-house lawyer at two tech companies.

Standard disclaimer: Justin is a lawyer, but he's not your lawyer, and nothing here is legal advice. He's barred in California, which has stronger employee protections than most states, so check the law where you actually work.

Full episode: YouTube | Spotify | Apple​

1. Justin has never seen the blocklist

The fear is that filing a complaint lands you on a list that keeps you out of big tech forever. Justin worked in-house at two tech companies, and blocking a candidate "was not even a conversation that was had."

Gerta's version of the risk is smaller and far more likely. Recruiters and HR people move between companies all the time, so the recruiter you dealt with at one company may be sitting across from you at the next one, and they might remember you. No block-list or spreadsheet required.

2. A recruiter warning another recruiter off you can be defamation

This is the part Justin flagged as risky for employers. If an HR rep or a recruiter badmouths a candidate to keep them from landing a role, that can be defamatory. Courts "have routinely held that that can constitute defamation."

His example was a recruiter telling another recruiter not to hire someone because they heard the person complained about sexual harassment and would be a huge headache. Depending on exactly what's said, that's real exposure for the company.

It's also why almost every settlement agreement includes a neutral reference provision. If a prospective employer calls, the company agrees to confirm your name, your job title, and your dates of employment, and that's the whole script.

3. Your reference list is the part you fully control

Justin drew a clean line between background checks and reference checks. You choose your references, so use that.

If you had a poor relationship with a supervisor, keep them off the list. Put down a colleague, a former supervisor, someone who can speak to your work and to what you're like to work with. He's done exactly that in his own job searches and it's never been a problem.

4. Criminal checks are standard, civil checks basically don't happen

Employers routinely run criminal background checks. Usually you reach the final stage, get a conditional offer, and the offer is contingent on passing.

In California, revoking an offer based on what turns up is its own process with real legal pitfalls, and employers who get it wrong create liability for themselves.

Civil background checks are a different story. In 11 years of practice Justin has never heard of a California company running one. A civil check pulls up a messy divorce or a lawsuit against a landlord, things with no connection to you as a candidate, and it can hand the employer information that creates a discrimination problem.

The example he gave: someone who was sexually assaulted and pursued a claim against her attacker. If an employer sees that and passes on her, that looks like gender discrimination, and it would deter people from vindicating their rights at all. As he put it, "it's really opening up a can of worms for the company."

5. What Checkr actually flags

Alex asked the question we get all the time. What if I rounded my dates of employment on my resume, or my internal title was senior PM while my external title was just PM?

Justin's last company used Checkr. When something came back mismatched, it was usually a gap in a resume or a small employer that had been acquired and now goes by a different name, so the people team would call the candidate and ask. In his experience "it was never a fraud process."

Education is where it gets real. If you say you went to one school and you actually went to another, that comes up. Gerta asked about a LinkedIn profile listing Stanford for what turned out to be a certificate program, and Justin's view was to list the certificate and describe it accurately, because there's nothing wrong with having one. Claiming an MBA you didn't earn is a credibility problem.

6. In California, a no-rehire clause doesn't belong in your agreement

California treats a specific no-rehire provision in a settlement or severance agreement as void for public policy. Part of the reasoning is that reinstatement is an actual legal remedy, so if you sue and win, being placed back in your role is on the table.

In practice it rarely happens. Litigation gets litigious, as Justin put it, and by the end both sides usually agree that going back would be miserable. The remedy still exists in law, which is part of why the clause can't be written in.

He hedged on the practical side. Nothing stops a company from simply choosing not to rehire you. What they can't do is put it in the agreement.

7. Non-competes come down to choice of law

A listener asked how to handle a non-compete when the company is based in California and they aren't.

Justin's first step is the choice of law provision in the contract, which states what state's law governs. If it's a California company, California law probably applies, and non-competes there are generally unenforceable outside of a few very limited exceptions. If another state's law governs, that's what you need to think about next.

Next issue is the one everyone asks about: severance. What gives you leverage, what happens after you sign, and whether they can take back your sign-on bonus.

Full episode: YouTube | Spotify | Apple​

Connect with Justin Clark: jlcemploymentlaw.com​

Warmly,

Gerta & Alex

Founders, YourNegotiations.com

P.S. Navigating a layoff or have an upcoming negotiation? Book a free call here: https://calendly.com/alexhapki/call​