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My previous employer is giving me nasty references. What can I do?

UPDATED: February 7, 2020

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When you leave a job or are fired, your previous employer may generally disclose any information about your past performance as long as the information is true. For example, if you were terminated from your job for stealing or as a result of poor performance, your employer may share these details with prospective employers. Your previous employer cannot, however, make statements that are false or defamatory. If this happens, you may be able to file a lawsuit for defamation of character.

Employee Reference Law: Defamation of Character

If your previous employer gives a nasty reference to a potential employer, you may have an action for a defamation lawsuit. Employee reference laws prohibit employers from defaming a current or ex-employee to a prospective employer. In the employment context, defamation is an injury to one’s reputation or career as a result of the individual’s employer making false statements of fact about them. False statements of fact do not include the employer’s opinion. For example, if an ex-employer tells a prospective employer that "in my opinion, she was an incompetent worker,” it will be hard to prove defamation as this is the employer's stated opinion, and not a statement of fact.

However, if your employer exaggerates your poor work performance or tells prospective employers false, unproven facts about your performance, this may be defamatory. If you were fired because your employer suspected that you were stealing from the company, but this was never proven, the employer is prohibited from passing this information on to a prospective employer, as this would be a false statement of fact. Further, if you suspect that your ex-employer defamed you in order to terminate your employment, you may also bring a wrongful termination action against them.

Proving Defamation of Character

If you can prove that an employer acted maliciously, your case will be even stronger. A court may even award punitive damages or damages to punish the employer for his or her actions. This means that even false “opinions” may be actionable if they were made in bad faith. For example, if your employer tells you or another employee that they “will make sure you never work in this town again,” any nasty remarks they make about you can be used as evidence in a defamation lawsuit.

Some defamation is considered so bad, that you do not even have to show that it has injured your career. This type of defamation is called defamation per se and includes falsely accusing someone of a criminal act or sexual misconduct. If your ex-employer is giving these types of false statements of fact to prospective employers, then you have a strong case for a defamation lawsuit.

Previous Employer Rights

The federal government has no laws restricting a previous employer from providing true information about a former employee. In fact, some states have passed laws that protect the employer. For instance, North Carolina law grants immunity from civil liability to employers who reveal information about either current or former employees. This immunity protects the previous employer unless the employee can prove by a preponderance of the evidence that the employer knowingly provided false information or information that he or she should have known was false.

Other states may have similar protections for employers. However, despite the protections afforded, most employers will provide only minimal information, such as the dates you were hired, the title of your position, and the date you left the company. A previous employer usually prefers to err on the side of caution in order to avoid potential defamation claims.

Employee Reference Law: Blacklisting

While employers are generally permitted to reveal information about your employment upon request, there are laws prohibiting them from blacklisting workers. Blacklisting involves taking action to prevent someone from obtaining employment with other persons or within an industry. For instance, if an employer were to make a general announcement to all people in the computer field telling them not to hire a former employee, this could be constituted as blacklisting. In some states, such as in North Carolina, blacklisting is actually a criminal act. North Carolina defines blacklisting as a Class 3 misdemeanor.

Getting Legal Help

If you believe your previous employer is blacklisting you or making false or defamatory statements about you, you should speak with an employment law attorney today. An employment law attorney can help you understand defamation; what is and is not permitted under the law; and whether or not you have enough evidence to file a defamation lawsuit against your former employer.

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