Previous employers are not required to give a job reference for former employees. Some companies actually have a policy against providing references, and others have policies that limit information they will disclose to the former employee’s position, as well as their start and end date.
What Can Previous Employers Discuss with Potential Employers?
Although many companies implement policies about what can and cannot be said about a former employee, the law does not limit what an employer can say—as long as it is the truth. If an employer is intentionally lying about a former employee, this could be cause for action and the employee should contact a lawyer.
Companies that have a no-comment policy can be a good thing for an employee who would likely receive a poor review. However, it can also appear as a red flag for those who would normally receive a stellar recommendation, but the company says nothing to the future employer.
When Can an Employee Sue a Former Employer for Giving a Job Reference?
In most states, employers are protected from liability for relaying true information that is without malice, to a former employee’s prospective employer. If the statements are credible and without malice, it is unlikely that an employee can sue for defamation. If an employer makes statements that it knows are false or if they act with reckless disregard, the employee may have a case.
In California, employers may be held liable for not providing enough information if they have chosen to give a detailed reference. For instance, if an individual was given a glowing recommendation but the employer failed to mention the employee’s history of sexual harassment, that employer could be held liable if the employee sexually harasses a colleague in the future.
How Much Can I Sue for If My Former Employer Defamed Me?
Defamation lawsuits can be difficult to prove (read more about Defenses to Defamation). If you can prove the following, you may be entitled to damages:
- The employer made a false statement of fact about the employee;
- The employer “published” the statement, which means they said it to someone else;
- The employer knew the statement was false;
- The statement was not privileged, and was made without malice; and
- Many states protect a qualified privilege, so long as the statements were made without malice. In some situations, such as in the medical or legal fields, this privilege protects the employer from liability so long as the statements are made without malice.
- The employee suffered harm as a result of the employer making the statement.
The harm suffered can be economic, as in the employee did not get the job and therefore lost a position they would have otherwise qualified for. They can also be mental/emotional, which is harder to prove. To establish mental or physical suffering, you need to be able to show that you suffered from the defamation to the point where (often required) you sought medical help.
There can also be what is called “harm to reputation” if you are a person who relies on your reputation substantially. While every person does, this typically applies to individuals who have some sort of known reputation, like a local figurehead.
If you are successful in your claim, you may be entitled to special (economic) damages for lost earnings, lost future earning capacity, and any other lost business or economic opportunities.
You may also be entitled to recover damages for medical or mental healthcare expenses that are tied to the defamatory statements. In some cases, damages for pain and suffering are awarded, and in limited cases, punitive damages are awarded as well for employers who are particularly harmful and purposeful.
Do I Need a Lawyer If My Former Employer Defamed Me?
If your former employer has made untrue statements regarding your job performance or character, you should contact a personal injury attorney. Defamation is a personal injury, and your lawyer will be able to advise you of your rights, as well as represent your best interests in court.