Employee Rights: Can I Sue My Former Employer For Giving Bad References?
86Job 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
result.
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 Hire;
- Date of Separation;
- Beginning Wage;
- Ending Wage;
and
- 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.
- "...that
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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What's Your Experience Been?
Have you ever suspected that your former employer gave you a bad reference?
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Mark R., Yes, the employer can still be sued, BUT, the employer will most likely win the case IF the employer can PROVE the employee had a bad attitude and was terrible at their job. Because "bad attitude" is nearly impossible to prove in court I recommend that ex-employers never talk about an ex-employee's attitude.
An ex-employer will only be able to prove that it "told the truth" about an ex-employee's poor performance if the employer has a well documented paper trail of poor performance by this employee. If, as an employer, you do not have a thoroughly documented record of an ex-employee's poor performance, then you shouldn't talk about it. And as you can tell, I would recommend not talking about it, period.
A bad reference about an ex-employee is "fightin' words." Don't use fightin' words unless you want to fight.
Should a terminated employee use a former bully boss as reference? Or, should only HR be used - if an employee was terminated?
Also, by not using a former boss and using HR or a peer for a reference - does this send up red flags for a potential new employer?
And, is there any advise for the terminated employee should the question be raised (to HR/bully boss)- Is the (old employee) eligible for re-hire?- and HR/Bully Boss states NO - What options does an ex-employee have?
I quite appreciate and agree with your view points expressed over here specially about the career damages that bad bosses can do. f you’re looking for an effective way to transform a Bad Boss into a Great Boss, check out our Bad Boss Tagging program. It works like nothing else does. Join the war on Bad Bosses.
Bonnie, Ideally you don't use a former bully boss as a reference -- but some employees come from employers that don't have H.R. departments, don't use H.R. departments for references, or the old boss TRIES to sabotage the employee's future.
Harry, Thanks for stopping by and agreeing. Obviously I think that my programing works "like nothing else does", but we need all the resources we can't.
I left my job more than 2 years ago when my employer shut down the business. My boss had a lot of psychological issues and always was verbally abusive toward her employees. She said that she wrote me up a couple times because I had to leave work early due to cold or taking care of my child. Last year I had a few interviews which I was optimistic about getting a job at a few of them, but never heard back from them after reference check. Just recently, a former friend at the same place but a different department told me that one employee had heard many negative things from my boss about me, and wouldn't hire me if he was an employer! I appreciate your advice on this, as I have given up hope in finding a job and have chosen to sit at home for nearly a year now! It has put a deep emotional scar on me as I feel like my fours of education at a reputable school went down the drain because of a mentally unstable and mean boss.
I was recently laid off of work and had to sign papers to recieve a severance package. I had transfered jobs and the job I had transfered to closed down that division after eight months. My paper trail is good, I was the top performer in both divisions for nearly two years. However, a management team member has been handing out bad references on my behalf to nearby companies. Can I still sue even though I signed papers to accept my severance?
Eve, Yes, you can still sue for your boss giving out a bad reference that you did not deserve. The release that you signed ONLY covers events that occurred between the time you started working, up to the moment you signed. Actions the company takes after you sign the release are not waived by the release. Make Sense?
I suspect my former employer has given me a bad reference and told my new employer that I made a hippa error. I have never been disciplined for one. Also, I believe they called my University and told them I had been googling staff at the University( which I did as they all do research that I am interested in.)How can I find out? If it is true what can I do? It has really upset my life and goals. I am almost certain.
Nurse, You can have a friend who is a business owner call your former employer and "check your reference" to see what your former employer says. There are also services that will do this for you.
you can have a service call for you to collect evidence on a bad ex-boss - what a power trip the crazy and on medication one that I worked for is on... I will sue if he does not stop trying to sabotage my career.
WHAT THEY ARE NOT SUPPOSED TO ASK:
Claims against prior employers. Do not ask applicants if they have ever sued a previous employer or filed a claim with the EEOC. Such activities are protected, and you could get sued for retaliation if you decided not to hire an applicant because of such a lawsuit or claim. For the same reason, do not ask applicants whether they have ever filed a workers' compensation claim against any employer.
Surviving and No More Bullying: Thanks for stopping by and adding your comments.
Undercover Lawyer, you are really nice. Really nice ! WOW.
Thank you so much for writing this Hub, you actually answered a lot of my questions, with your comments as well.
I am about to become a new fan of yours because you care. People like you remind me why the adversities of life can and should be surmounted.
My last boss was the biggest bullie of them all. He fired me, one week before he was supposed to pay me my commission. I have a knack with international trade and I managed to have over $ 15,000 deposited in his bank account from 2 different buyers from France. Without contracts and without Letter of Credits.
It has taken me over a year to get over it. Now I am about to seek a new career and I want to be able to talk about my experience with International Trade. However, I do not want any new employers to contact my former bullie nightmare of an employer.
What do I say on my resume about the fact that I do not want any future employers to contact my former bullie nightmare ?
Merci, Merci, Merci, you have given me an insight I most needed.
Caroline Couture Taylor
Seattle, Washington
My name is nichole and my past employer is really sticking it to me. She has told two companies very untruthful information about me to them and i have lost both jobs, also she has said the same untruthful things to unemployment and I have now been disqualified because of her. What can I do i really need help. My email is bo_07_05_05@yahoo.com
I went to work for a homecare agency about a year ago. To my suprise I loved taking care of disabled clients! I had no background or experience in this field. I was so sure this was my calling that Ireturned to school after 20 years and was working towards my LPN licence. Three months in I had enough credits to obtain my CNA certificate, and my Husband was suddenly laid off his job of 11 years.I decided to get my state certification in CNA and return to work to help get us through and return to school later. I was working part time for this company and was only getting 6 hours a week so I put in my notice immediatly to look for a new job with more hours. My last day was july 10, 2009. The following thursday I recieved a letter from that employeer accusing me of trying to steel a patient from them and stating I was termminated on july 14, 2009,and to relinquish the client or face there lawyer! I tryed to contact them emediatly to straighten out this matter 12 times and they want take nor return my calls. I have put in 21 application so far and still havent been hired by anyone! My friend Faxed a job reference form from his business so we could see if its a bad reference causing the problem and didnt even geet a response back! What should I do? Please help! Im out of Ideas!!!Sjj9448@aol.com
I have a former employer who owes me 6 months of documented expenses. It states very clearly in my employment contract what is to be paid and when I resigned they refused to pay. I kept the laptop they provided to help recoup some of the money and since then my former CEO has called and emailed my new CEO saying I am not honest and threatening to sue me...is there anything I can do to stop this? I have asked multiple times for them to pay my expenses and have provided the reciepts.
I was curious if this law still applies for the situation I am in. Last year I had left a full-time job for school and had intentions of going back part time after schooling was over. The Assistant manager there had said I was always welcome back when I was ready. I recently re-applied and was then told that I was not aloud to come back due to the same assistant manager saying he did not like me. I had never been reprimanded when working there for the 2 years I was there in fact, had won many "awards" for being a good employee. They gave me no other reason for not hiring me and when confronting the Assistant Manager, he said that he had never said he did not like me. I found this to be a lie as he had told normal employees that he just didn't like me. I again tried to be hired back again recently as this assistant manager no longer works at this location and still received the same answer.Can I ask for proper documentation for reasons why I am not being rehired? Please help!
The owner was not available when my prospective employer called and the ex co-worker that I had problems with when I left took it upon herself to give the reference of my employment as well as faxing a copy of the cps investigation report that I filed against her, needless to say I did not get the job.
Hello,
I handed in my notice 6 weeks ago as I was offered a new job. My prospective employer seemed so very pleased that she had chosen me over other candidates and invited me for a second informal interview to meet the team and chat to her about the job. It was all very positive and I was looking fwd to the role.
However, I was due to start my new job yesterday but on Friday, I had a phone call from my prospective employer withdrawing my offer. Slightly last minute! Naturally shocked and upset I asked for the reason and she said something vague about my references flagging up some concerns. Something about how she suddenly felt that though the references were not bad, that she felt that I wouldn't like the job and that she had thought long and hard over this.
It seemed strange to me that someone would spend all the money and time on recruitment and then withdraw so I feared someone had made a great allegation against me. I am also aware that my references were sent back very quickly so why the late decision? Not once did she raised any concerns with me. Not once did anyone pick up the phone to me and ask me questions so there I was tying things up and having a 2 week break in-between to find that I had no job.
The company have since sent me a copy of my refercnes upon my second request and as I thought, the references were very good. However, there is one line from my first employer that says that I was frustrated when decisions had to reach a consensus as a team. What?? Surely, that's a subjective comment that she shouldn't have written and surely, that is not a reason to not hire someone? I have never been asked by my prospective employer why this was, I have just been jilted at the alter so to speak and now have no job and find myself joining the unemployment que. I have done nothing wrong. Do I have a case to sue someone here? Thanks!
MY FORMAL EMPLOYER WILL NOT RETURE CALLS FROM AN EMPLOYER WHO WANTS TO HIRE ME THIS RESULTED IN ME NOT GETING THE JOB CAN I SUE
Hello Laura, not so sure on your laws as I am South African based, however teh law of contract is fairly universal so check it out. A person becomes an employee once the job offer is amde an accepted. You need not attend work to become an employee. As before this is based on contract law, a contract comes into being when there is a meeting of the minds.
Mark R. says:
4 months ago
I have a question about this. Suppose an ex-employee really was terrible at their job and always had a negative attitude at work. If a potential employer then calls that person's previous boss and the boss tells the truth about the ex-employees performance, can they still be sued? How do you prove that the previous employer is telling the truth?