Failed background check due to possible slander from ex-employer

I went through a very extensive background check for a police job. They contacted every friend, neighbor, employer, etc. I’ve ever known. After 3 months of the background, I only got a form letter that stated I didn’t pass and wasn’t being considered for employment any longer. What troubles me most is I believe they received a bad reference from a former employer with whom I left on bad terms, although nothing of criminal conduct just a bad match. The police agency that conducted the background will not release any information as to why I didn’t pass, nor who they spoke with. I understand they are protecting confidentiality with their contacts, but I don’t think the information they received is accurate. Thus, this lead to my not getting the job. Do I have any recourse? Aside from contacting every reference to see if they are providing false information, how can I find out what information they were provided? I’ve considered a public records request but have read that unless it benefits the public at large, they will deny it. Any help is appreciated

Asked on March 3, 2018 under Employment Labor Law, Oregon

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

There is no good option for you. The only way to compel the release of this information is in a lawsuit, where you could use the legal mechanisms of "discovery" (subpoenas; document production requests or interrogatories to the opposing party; etc.) to try to find out what was said by who. However, since you have no right to a job, the only kind of lawsuit you could file would be a defamation suit against the person(s) you think defamed you--but you'd have to file the lawsuit *before* knowing who said what or if you have a viable case, which not only means you might be going to this trouble and expense for nothing (e.g. if it turns out you were not defamed), but could be countersued for malicious use of process or sanctioned for frivolous litigation if there was no good cause to sue.
Also, bear in mind that a negative opinion is NOT defamation, even if you feel it unfair; only untrue negative facts are. So if the former employer lies and claims you stole from them when you did not, that could be defamation; but them saying you were a bad employee, not good at the job, didn't show initiative, didn't get along with your supervisor, etc. is just an opinion (not a provable fact; a subjective judgment) and is not defamation or actionable. So even if they gave you a bad reference, it may be a perfectly legal bad reference.


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