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, and being told you only have to pass a reference check, but 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! There are two ways that you can file a lawsuit against your former employer for giving out negative references about you. One way is by suing for defamation. A second way if by suing for discriminatory retaliation. Each way requires that you meet certain criteria, and neither way should be taken lightly. This Hub will cover suing a former employer for defamation. A second related Hub will explain suing a former employer for retaliatory discrimination. In brief, can sue for defamation if:
- Your former (or current) employer says untruthful things about you;
- To a company where you have applied to work;
- The company where
you applied would have hired you had your ex-employer not said
untruthful things about you; and
- You lose out on income as a
Number for may seem obvious, but if you were hired by a
third company right away, for the same or more money, then you would not be “out”
any income. You would not have a case because you would have no "damages."
Hiring Managers Often Avoid Calling the Former Employer's H.R. Department
What this means is that 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 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 Human Resources Department, and the H.R. Department strictly follows 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, then, is that a hiring manager from Company B will not call the H.R. 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 H.R. 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 B) 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. Often companies 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 through giving a very bad reference to a company were you applied, even though you don't deserve it.
Take Action and Dig for Evidence
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, Company B in our example, 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 Company B, 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 Company B does not comply, see an attorney about writing a letter on your behalf, or opening a case for you and subpoenaing your application records.
Another 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 your friend call and ask questions about you. Tell your friend to be chummy and not to 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. To win in court, however, you will need to prove each of the following elements to win your defamation case against your former employer:
The Four Legal Elements of Defamation
When you've completed your investigation compare your evidence (it does not have to be written evidence) to the following four elements that are required to prove that your former employer defamed you:
- "Publication..." -- this does not mean that your employer must write untruthful things about your past job performance in a book or newsletter. "Publication" in legal terms simply means "communication to a third party." Your former abusive manager satisfies this element by simply talking about you on the telephone to your potential employer;
- "...Of a false statement..." -- This is the element that employers try to avoid my only giving out name rank and serial number, which can be objectively proven true. But if some jerk you used to work for tells a potential employer anything negative about you that is subjective, then you can argue that it is false by using your entire employment record at the old company as evidence. You can also use oral testimony from your former co-workers as evidence. In other words, if your old manager describes you
as anything other than a good employee then you will be able to argue that you were defamed.
harms your reputation..." -- This element is simple to prove. Just show that you did not get the job you applied for at the new company.
- "...and damages." -- Your damages are the equal to the salary of the job you did not get, from the time someone else was hired through to the present day. The only way you won't be able to prove your damages would be if you got some other job soon after finding you you did not get the one in question.
Conclusion: Defamation Can Be a Powerful Weapon Against a Past Bully Boss
As you can see, the four required elements of defamation match up almost perfectly with the process 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.
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