What can a former employer say to a prospective employer about you?

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What can a former employer say to a prospective employer about you?

Past employer made horrible untrue statements about me when contacted for employment verification/ references. What are my legal options?

Asked on September 3, 2010 under Employment Labor Law, California

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Without more details it's hard to say what your rights may or may not be. Generally speaking, there is no action against a former employer for a negative response to a prospective employer's inquiry.  Regarding answers to pre-employment inquiries the law provides a "qualified privilege" . This is so that employers (past and present) will be free to answer those questions honestly without fearing a lawsuit. Having this privilege means that a former employee can only sue for willful or reckless remarks that are completely and grossly untrue. 

As a practical matter it's often very hard to prove what is being said about you in these situations.  Additionally, even without the privilege certain statements are legally permitted to be made. Statements of fact are not actionable. Therefore, if your past employer says that it would not re-hire you can't be defamatory because it can prove it's true.  Additionally, statements of opinion aren't a basis for a lawsuit; so if your former employer said, "X uses drugs" that is a statement of fact that may be actionable.  But saying that, "I think X is the worst worker I've ever supervised" is a statement of opinion that may be hurtful and unfair, but is not actionable.  

Bottom line, in order to sue for such derogatory remarks (ie "defamation"), the information must be a false statement of fact. If this is the case in your situation and you can prove it, you should consult with an employment law attorney in your area.


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