It is technically not illegal for an employer to lie about a former employee to a prospective employer; however there also isn’t much incentive or reason to be untruthful in the first place. If a bad reference is just the result of an employer being truthful, there’s nothing illegal about this. Even if it’s just based on an opinion and not everyone agrees on this negative perception of an employee, the employer is not subject to defamation claims. Only if a bad reference is intentionally untruthful then we dip into illegal activity. If you were wrongfully defamed by a previous employee then you have grounds to sue, and one of our defamation attorneys will gladly help you with this procedure.
A lot of times companies will only be willing to disclose dates of employment, a position, and salary in order to avoid lawsuits. Employers are allowed to say whatever they want, but that doesn’t mean there are possible repercussions that they must face. This is why most HR departments limit what can be said. But this doesn’t mean that companies are not allowed to talk about your job performance, responsibilities, and professional conduct. If you fired from your previous job, your employer may be allowed to tell your prospective employer that you were terminated. Of course, like what was stated before, if any of this is false, then you may have a lawsuit on your hands.
Defamation lawsuits are when someone has made an intentional false statement that harms the other person. If the statement is oral then it is called slander, if it is written then it is called libel. In employment, defamation claims usually stem from when a previous employer has made false, negative statements to a prospective employer about a former employee and it resulted in the employee not receiving the job.
Do I have a defamation case?
Five characteristics of the statement must be proven in order to win a case:
- The statement was false.
- The statement was published, meaning the employer actually made the statement to someone.
- The employer knew the statement was false
- The statement was not privileged. A statement protected by qualified privilege means the employer was protected from liability.
- The employee suffered harm from the statement.
What are California employee reference laws?
California law lets employers have qualified privilege when providing references to prospective employers. Basically, California employees are safe from being sued for defamation as long as they provide information to a prospective employer who requests it and acts without malice. Former employers can lawfully talk about an employee’s job performance, qualifications, and eligibility for rehire, but they cannot speak about an employee’s constitutionally protected speech or activities or make statements about an employee’s union. However, it must be remembered, employers are not protected under the qualified privilege if they are making intentional false claims to hurt a former employee. If information is given without request, a lot times it is false and intended to have negative effects on the former employee. So false statements, statements about an employee’s protected activities, malicious comments, and unsolicited statements are all not protected and if they kept you from getting hired at another job, then you may want to pursue legal action.
What Is Defamation of Character in a Workplace?
Sometimes an employee and employer have a contract with a non-disparagement clause. Most of the time this happens when an employee has a severance agreement. A non-disparagement agreement is when both parties agree to not say anything bad about each other. If you and your former employer are under a non-disparagement agreement, but they have violated this agreement by providing a bad reference to a potential employer of yours, and this resulted in you not getting the job, then you have reason to file a lawsuit. Your former employee has committed a breach of contract and their negative statements may not be protected by qualified privilege.
Employment Defamation Cases
If you win an employment defamation case, remedies may include economic damages which usually include loss of income and future loss of income. You may also be able to win non-economic damages which account for the pain and suffering from defamation. Examples of these could be mental anguish, emotional distress, loss of enjoyment of life, anxiety, personal humiliation, shame, disgrace, appetite loss, lack of energy, and much more. While statute of limitations vary state by state, California’s statute of limitations for defamation cases are one year after the day the statement was made. There are exceptions under the discovery exception. For instance, if you were not aware that you lost your job because of defamation then the statute of limitations for your case may not begin until the day that you were informed of this. Make sure you know your rights surrounding defamation, and if you are not sure do not hesitate to talk to one of our experience defamation or employment attorneys.
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It’s important to discern the difference between statements that are in nature defamatory versus ones that are illegal and defamatory. If an employer asked to give information about you and they gave an honest negative opinion, there’s nothing you can do. If your employer intentionally said something false to maliciously attack your ability to get another job, then that was illegal and you must sue them. Remember, it must fall under the 5 categories to in order to be proven an act of defamation from your previous employer. If you feel as if you’ve been mistreated in this way and want to seek legal action, come in to one of our offices today and receive a free consultation. Even if you are not sure if you have a case, we can look at what information you have and make sure we provide you with everything you need to know to move forward.
Taking on your case will not cost you anything. Here at California Labor Law Employment Attorneys Group, we understand money can be tight sometimes and we don’t want that to be a reason to not seek redemption of your rights. Our zero-fee guarantee promises we will not charge you anything unless you win your case. So don’t be afraid to fight back against employers who are unlawful and malicious. This is your chance to speak up and reclaim your reputation.
