Can My Previous Employer Give a Bad Reference?

Knowing you’ve had a negative experience at a previous job can be stressful when searching for new employment. If you believe your previous supervisor knowingly provided false or misleading information to prospective employers, you should speak with one of our employment attorneys today.

Bad but True

If your former employer is providing negative but truthful information, such as an honest evaluation of your work history and performance, you probably won’t be able to claim any illegal wrongdoing. If you quit on bad terms, were fired, or just performed poorly while employed there, your former boss can likely disclose any of that information to other prospective employers.

However, your former employer doesn’t have the right to say anything he or she wants. He or she must stay within the law while giving a positive or negative reference. For instance, if a previous employer discloses information they know is false or acts maliciously during the reference call, you may be able to take legal action.

Defamation

When a legal action is brought against an employer who allegedly made false statements during a reference call, the action is typically based on defamation laws.

Generally, in order to prove an individual defamed you, you need to prove the following:

1. The individual made a false and defamatory statement about you, expressed in writing, speech, or another manner.
2. The individual made an unprivileged publication to a third party. The “publication” requirement doesn’t mean the statement must be physically printed—it requires only that the statement be somehow “made available” to another party.
3. The statement was made with the requisite degree of fault, which varies depending on the situation.
4. You were “damaged” by the statement. Damages may include an injury to your reputation or career as a result of the statement.  However, some statements are so significant you do not need to prove your career or reputation has been damaged, such as a statement falsely accusing you of committing a crime.

The requirements for proving defamation may change based upon the individuals involved. Additionally, defamation in the employment context can require different and additional considerations. We can help you determine whether you have a cause of action against your current or former employer.

Blacklisting Law

Some states have laws in place prohibiting employers from blacklisting people. Blacklisting generally occurs when someone takes an action to prevent you from obtaining employment with anyone else or within your specific industry. Consider someone in the medical field, for example. If his or her boss told other employers in the medical industry not to hire that person, the former employee may have a blacklisting claim.

In some states, blacklisting is a criminal act.

Seek Legal Counsel

Finding a good job can be a challenge, but with a negative reference from a former employer it becomes even more challenging. It’s up to you and your legal team to prove if what has been said about you was defamatory and if so, you should be compensated.

Proving any wrongdoing took place during a job reference can be difficult as well. Typically, those who are seeking employment are not notified as to why they have not been selected. As a result, the job seeker might be unaware of any negative and potentially defamatory reference a former employer might have provided.

There are policies being implemented in businesses across the country requiring management and HR workers to disclose minimal information when contacted by prospective employers about an employee reference. This lessens the importance of a reference and encourages a myth that negative references cannot be given.

Determining whether you have been defamed can require a fact intensive and technical legal analysis. 

If you feel you have been harmed by defamatory statements, contact Robert A. Klingler Co., L.P.A. to speak with one of our experienced employment attorneys in Cincinnati, Ohio, today.