Job Reference Liability

Prior employers are not required to give a job reference for former workers. Some businesses have a policy against providing references, and others have policies that restrict the information they will disclose to the former worker’s position and their start and end date.

What Can Previous Employers Discuss with Potential Employers?

Although many organizations enforce policies about what can and cannot be said about a former worker, the law does not restrict 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 worker should contact a lawyer.

Companies with a no-comment policy can be good for employees who would likely obtain a poor review. Nevertheless, it can also be a red flag for those who would typically receive a stellar recommendation, but the company says nothing to the future employer.

How to Establish a Case of Defamation Against a Former Employer

There are five elements that the employee must prove to succeed in a defamation case against a former employer. They are as follows:

• The employer communicated a defamatory statement: A statement is deemed defamatory if it hurts the former employee’s reputation by lowering them in the estimation of the community or if it deters third parties from associating or dealing with an employee, e.g., by hiring them;
• The employer communicated the defamatory statement to a third party: The communication may be oral or in writing;
• The employer’s statement was false: The responsibility to establish that a defamatory statement is false lies with the former worker. They must offer specific facts showing that their former employer’s statements were not grounded in the truth;
• The employer was at fault in making the false statement: The fault an employee must demonstrate would be the employer’s malice, that is, an intention to harm the worker, or recklessness, which would be a casual indifference to the possibility of injury;
• The false statement caused injury to the worker’s reputation: An employee must demonstrate that their injuries would not have happened if not for their employer’s false, defamatory statements. The worker must demonstrate damages.

What Are Some Examples of Defamation by an Employer?

Defamation must be representations of facts that are false. Expressing a cynical opinion about someone is not actionable defamation. So, for instance, a statement to the effect that a person is a “real jerk with anger management problems” is an opinion, not a statement of fact.

Specific types of factual allegations are deemed to be defamatory without question. In the law, they constitute defamation per se. They are assumed to damage a person’s reputation without a further requirement for proving harm.

Statements are defamatory per se where they falsely attribute to the person one or more of the following:

• Criminal Offense: A statement to the effect that a person perpetrated a criminal offense: So, for instance, if a former employer were to tell a prospective employer that a former worker stole things from work when in fact, the individual had done no such thing, this would be libelous;
• Loathsome Disease: A statement to the effect that a person has a loathsome disease, for instance, a prior employer telling a prospective employer that a former employee had come to work with COVID-19 or had tested positive for HIV or came to work drunk nine days out of 10 would be libelous;
• Business, Trade, Profession, or Office: A statement about some conduct that would be incompatible with a person’s business, trade, profession, or office: A prior employer making a statement to a prospective employer about a former worker that the individual, in fact, lacked a license necessary for their profession, or some other false factual allegation of the type would be libelous;
• Serious Sexual Misconduct: Alleging that a person committed severe sexual misconduct. A former employer falsely claiming that a former worker engaged in serious sexual misconduct on the job would be libelous.

Statements of this type, particularly if false, would permit a jury to conclude that the employer made them with an intent to harm the employee or, at best, with an apparent reckless disregard for any harm that might be done.

A person is unlikely to succeed in a defamation suit against a former employer if the employer provided a reference upon request. This is especially true if the reference disclosed the employee’s actual performance ratings and other materials from their employment record to the employer.

An employee must prove that a former employer, either recklessly or intentionally, gave a reference that incorporated false information. An employee cannot sue because their former employer did not provide a reference or gave a poor one, especially if their performance on the job justified the assessment.

When Can an Employee Sue a Former Employer for Giving a Job Reference?

In most states, employers are protected from liability for relaying accurate information to a former worker’s prospective employer without malice. 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 worker may have a case.

In California, employers may be held responsible for not supplying enough information if they have chosen to give a detailed reference. For example, suppose an individual was given a glowing recommendation, but the employer failed to mention the employee’s history of sexual harassment. In that case, that employer could be held accountable 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 demonstrate 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 expressed it to someone else;
• The employer knew the statement was false;
• The statement was not privileged and was made without malice; and
• The worker suffered harm as a result of the employer making the statement.

The harm suffered can be financial, as 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 more difficult to establish. To demonstrate mental or physical suffering, you need to show that you suffered from the defamation to the point where (often needed) 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 individual does, this generally applies to people who have a known reputation, like a local figurehead.

If you are victorious in your claim, you may be entitled to special (economic) damages for lost earnings, lost future earning capacity, and any other lost business or financial opportunities.
You may also be entitled to recover damages for medical or mental healthcare expenses tied to the defamatory statements. In some circumstances, damages for pain and suffering are awarded, and in limited cases, punitive damages are awarded for extremely harmful and purposeful employers.

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 attorney will be able to advise you of your rights and represent your best interests in court.