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What Can I Do if My Former Employer Gives Me a Negative Reference?

When trying to get a new job, many people fear receiving a negative reference from a former employer. Even employees with clean disciplinary records and impeccable performance reviews may be concerned about a negative reference, if they left their last job under any circumstances less than pleasant. But, is there anything you can do if your former employer gives you a negative reference and it prevents you from getting a job? Maybe. Here are some things to consider.

Claims for Defamation in Employment

The legal term “defamation” refers to making a false statement about someone that causes them injury. For example, in the workplace, defamation may include a situation where an employee intentionally makes false statements about another employee who is harmed. If the statement is made orally, it is known as slander, and if it is made in writing, it is known as libel.

The most common type of workplace defamation claim occurs when a new employer contacts a former employer to verify the background of a prospective employee. When a manager or supervisor provides a reference to a prospective employer and makes false statements that impede the applicant’s chance of getting the job or the applicant’s reputation, there may be a claim for defamation.

Defamation Claims May be Difficult to Prove

Despite the significant harm that a defamatory statement can cause an employee, these claims are often rather difficult to prove. In the employment context, the employee may not even be aware of a negative reference because it is made during a private conversation between a potential employer and a former employer. Prospective employers are usually unwilling to share what was said. If you do not receive a job offer because of a damaging false reference, you may never know that was the reason.

What Do I Need to Show to Bring a Defamation Claim?

Defamation claims are governed by state law. However, the basic elements of these claims are generally the same. Employees must be able to show that the employer made a false statement about the employee, the statement was actually published or communicated to someone else, the employer either knew or should have known that the statement was false when it was made, the statement was not privileged, and the employee was actually harmed by the statement being published.

What Kinds of Statements are Not Considered Defamation?

If the statement is true or it merely represents someone’s opinion about you, it is not defamation. For example, if an employee says you were disciplined for attendance issues and you actually were, that is not considered defamation, even if it would be considered a negative reference. Truth is a complete defense to a defamation claim. If a false statement is written in a supervisor’s notes and kept in his files, that is not a published statement, so it is likely not defamation by itself.

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Wrady & Michel, LLC. You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!