Employee Rights: Can I Sue My Former Employer for Giving Bad References?
Job Applicants Have Rights, Too
Are you are working hard at getting a new job, sending out resumes, getting interviews, being told you only have to pass a reference check, and then not getting the job? Multiple people have recently contacted me about this exact scenario wanting to know if the law provides them with any recourse at all. The answer is yes! You can file a lawsuit against your former employer for giving out negative references about you. You can potentially sue for defamation. This requires that you meet certain criteria.
- Your former employer must have made false statements about you.
- They must have published these false statements to an employer you applied to.
- Your former employer must have known with certainty that these statements were false.
- The statements made are not covered by the legal immunity of privilege.
- You must have suffered from these statements being made, such as losing out on potential earnings.
What Can an Employer Say in a Reference?
There are no federal laws that say what a former employer can and can't disclose about an employee. State laws can vary, but many states do allow your former employers to discuss information about your job performance and professional conduct. They can also disclose if you were fired and give a reason for your termination.
Of course, because of defamation laws, employers must give references that are completely accurate or they face being sued by former employees. This is the primary reason why so many companies today refuse to give out any information besides:
- Date of hire
- Date of separation
- Beginning wage
- Ending wage
- Job title
Each of these five things is totally objective. A company can prove that it was completely accurate and truthful with your job references if it only releases these five things. Many companies refer all letters and telephone calls about references to their HR department. They strictly follow the name, rank, and serial number approach to giving references. But many reference checkers purposefully avoid calling the Human Resources department because of this.
The End of an Employment Relationship Can Be as Nasty as the End of a Marriage
What happens is that a hiring manager from Company A will not call the HR department of Company B, but instead will call around to get a hold of your former manager, or a lower level supervisor. Frequently, line managers are annoyed by the HR department always telling them what they can and can't do, and who they can and can't talk to. They feel put-upon by Human Resources, and they may also feel jilted by the fact that you left, or they are still angry about your perceived short comings when you were working for them.
As a result, a lower level manager often decides on their own to tell the caller (the hiring manager from Company A) what a pain in the neck you were (not that you really were, but that's what the manager might wrongly believe). The larger the company, the easier it is to find someone, somewhere, who is willing to talk about you. In this way, a bully boss or abusive manager can continue to come after you even after you have left the company.
Also, employment relationships are the closest thing we have to family relationships. Companies often proudly say “We're like family here.” And just like a divorce, the breakup of a working relationship can cause feelings of resentment, betrayal, anger, and a desire for revenge. A former manager will occasionally act on these feelings by sticking it to you by giving a very bad reference to a company where you applied, even though you don't deserve it.
Can I Sue for a Bad Reference?
If your former employer gives out a bad reference that is false and you aren't hired as a result, you may have a case for a defamation lawsuit. Defamation is when an individual or organization intentionally makes a false claim to cause someone injury. To successfully sue for defamation, you must be able to prove the following.
- You former employer must have made false statements about you. They must be false facts and not opinions. Subjective claims such as feeling like you had an attitude problem or were hard to work with will not support a defamation claim. You also don't have a claim if any negative statements about you are true.
- Your former employer published a statement about you. This does not mean actually saying something about you in print. This merely means that they made a statement to someone about you, most likely the hiring manager at the job you applied at.
- Your former employer had to have known that the statement they made was false. If they had a reasonable belief that the statement was true, you have no case.
- The statement was not privileged. This refers to the legal immunity of privilege, which encourages open communication for a legal or moral duty. A good example is the communication between a doctor and patient or journalists making statements in the press that are in good faith. As long as a statement is made with no intention of malice, you have no defamation case.
- You must have suffered as a result of the false statement. You must be able to show that you did not get a job as a result of the lies told about you. Keep in mind that you will not have a case if you get a job somewhere else that offers the same level of compensation as the job you did not get.
How to Find Out What a Previous Employer Is Saying About You
If you suspect that a prior bully boss or abusive manager is trying to stick it to you by giving you bad references, you should take action.
- Go to the company that did not hire you and ask for a copy of your application and all the notes that went with it. Give them this request in writing and specifically ask for interview notes and reference checks.
- This will probably scare the company, who will think you are about to sue them for discrimination because they hired someone else instead of you. Keep a copy of your written request for yourself. If the company does not comply, see an attorney about writing a letter on your behalf, or opening a case for you and subpoenaing your application records.
- An easier, cheaper, and sneakier way to check what is being said about you is to have a friend pose as a potential employer and have them call and ask questions about you. Tell your friend to be chummy and to not take no for an answer. You can even find a friend who owns their own business do this so it is more legitimate.
After you establish that your former employer is saying something negative about you, you will have enough evidence to file suit, even pro se (meaning filing it yourself) if you need to.
How to Deal With a Bad Reference
A lawsuit should always be a last resort. It can be a costly endeavor, and the issue of a bad reference can be solved with more simpler methods. Here are some preemptive and reactive measures that can be taken before you call a lawyer.
- The first obvious step to take is to exclude any past employer from your references if you believe they will give a negative reference. You can call a past employer to inquire what they will say about you. If they will say something negative, or refuse to comment on what they will say, you should not use them as a reference.
- If a bad reference is unavoidable, try reaching out to mend the situation. Many managers will be willing to let go of previous hard feelings and be willing to leave a more satisfactory reference. Be sure to approach this conversation with compassion and understanding. Listen to their side of the situation and don't be argumentative.
- If a bad reference is factually inaccurate, you could reach out to Human Resources of your previous job before calling an attorney. You can tell them that your old boss has been giving out inaccurate information; don't say that they have been lying. If you can prove the information your boss has been giving out is wrong, HR will often make it right with the company they communicated with.
- If you can't get rid of a bad reference, be prepared to explain it to potential employers. Explain why the reference will be a bad one. Take responsibility and don't make excuses. Don't accuse your past company of being in the wrong. Admitting some mistakes and explaining how you will avoid them will show maturity to potential employers.
- You could potentially send your previous employer a cease & desist letter. The letter should include the name of the individual giving the false negative reference and the material of their reference. Explain what is being said about you and how it is harming you. Demand that they stop giving out inaccurate information. Threaten the use of a defamation lawsuit as an ultimatum.
Conclusion: Defamation Can Be a Powerful Weapon Against a Past Bully Boss
As you can see, the definition of defamation matches up almost perfectly with the act of a past employer giving you an unwarranted bad reference about you to a potential new employer. This is what makes defamation such a powerful weapon that job applicants can use to keep a past bully boss in check, and ensure that he or she doesn't try to continue trying to hurt you even after the employment relationship is over.
What's Your Experience Been?
Have you ever suspected that your former employer gave you a bad reference?
This article is accurate and true to the best of the author’s knowledge. Content is for informational or entertainment purposes only and does not substitute for personal counsel or professional advice in business, financial, legal, or technical matters.