Can My Employer Trash Me In Job References?

I constantly hear comments like, "I know my employer is only legally allowed to give out my dates of employment and job title." The people who say this are so sure this is the law. They're also wrong, wrong, wrong. They even get angry when I tell them they're wrong.

Here are six things you need to know about job references:

1. Not one single federal law exists limiting what employers can say in references. I know you think you're sure about this law existing. You probably heard it from a friend or on TV. There is no such law.
2. No state prohibits employers from giving out truthful information about an employee's job performance. There is not a single state law that I've found (and I'm sure my employment lawyer colleagues around the country will chime in if they know of one) saying that employers can only give out dates of employment and job title. Discussing job performance is allowed.
3. Most states don't require employers to give any reference at all. Some vindictive employers will simply refuse to return calls from prospective employers. Employees who have to undergo background checks may be disqualified from a job just because a former employer refused to speak. While some states require employers to give out specific limited information, most require nothing at all from former employers. This can also be a problem if you need to apply for unemployment or public assistance.
4. Some states require employers to give former employees a letter with specific information (varies from state to state). These states are California, Delaware, Indiana, Kansas, Maine, Minnesota, Missouri, Montana, Nebraska, Nevada, Oklahoma, Texas and Washington. You can check out each state's requirements here.
5. Most states give employers some immunity from slander and libel suits. Each state's immunity is a little different, but employers in most states get a lot of leeway in what they can say about former employees.
6. Truth is always a defense to a slander or libel suit. Even in states without immunity, if your employer gives out truthful information, you won't be able to sue for slander or libel. Truth is a defense. If your employer makes false statements of fact (as opposed to opinion), such as falsely saying you stole money or didn't meet quota, then you might have a defamation case against them.

When you leave, it's important to figure out what your former employer is going to say about you to potential employers before you start interviewing. Here are some things you can do to find out.

Ask: Some employers will tell you, if you ask them, what they will say to potential employers in references. Find out if, for instance, they'll say you're eligible for rehire.

Put it in an agreement: If you're presented with a severance agreement, one important point to negotiate will be neutral references. A contract where the employer agrees to only give out dates of employment and job title can be enforced.

Check the union contract: If you have a union, many collective bargaining agreements include a provision that the employer can only give out dates of employment and job title.

Look at your handbook: Many companies have a neutral reference policy. Some have a phone number or person where you're supposed to direct references. A company with a neutral reference policy will usually follow it. They have it for a reason. If you find out your former supervisor is violating the policy, complain to HR or the supervisor's boss. They may get in trouble, and will almost certainly be ordered to cut it out.

Reference-checking company: There are companies that will pretend to be potential employers and check references for you. They can give you a report about what your former employer is saying. If they're saying something untrue, you may want to get a lawyer to write a cease and desist letter for you. If they're breaching a non-disparagement agreement, you might be able to sue for breach of contract.

If you think your former employer is defaming you, or if they are breaching a non-disparagement agreement that they aren't allowed to say negative things about you, contact an employee-side employment lawyer in your state about your rights.

Can My Employer Trash Me In References? 6 things you need to know about job references

Suzanne Lucas, better known as the Evil HR Lady (she's very nice and not evil at all), did an interesting article about what employers are saying about former employees in references. Hint: It's not good.

Lucas says this: "Reference-checking firm Allison & Taylor estimates that 50 percent of their reference checks come back negative or lukewarm." If you want to chill your blood, read the article for some actual things employers have said about employees.

In my AOL Jobs column, I answer a reader question about whether or not employers can trash employees in job references. You can read it here.

I'm totally slammed at work, so that's it for now. Please don't forget that the ABA Blawg 100 is asking for your votes for your favorite blog in the Labor and Employment category. If you think this blog is worthy, I continue to need your vote. Go to the ABA website here. It takes about 30 seconds to register. Then go to the Labor & Employment category. Find Screw You Guys, I'm Going Home. Look to the left and you'll see a button that says, "Vote Now." Click it. You're done. The polls shut down at close of business Dec. 20. If you have trouble voting or questions about anything else, please see the ABA's Blawg 100 FAQ.

Can I Sue a Lying Coworker?

I'm answering areader questions today.

Hello Donna,

I was fired last year based on lies a co-worker made to our employer. My former employer is now enforcing a non compete I was forced to sign prior to employment that doesn't allow me to work in my professional field anywhere the company does business, I have had numerous job offers resented due to the non compete. Plus they have stated the process to sue me in federal court without any proof what so ever as there is nothing to prove. I won a transfer to my home state, and am awaiting a court date to dealing with these false charges.

What can I do about the co-worker that lied and caused my termination? Slander suit or civil? I am still unemployed, broke and now facing foreclosure along with mounting stress of all this I have gain 20 pounds, don't sleep very well. Your thoughts on counter suing employer or co-worker?

Thanks Unemployable 

Hi Unemployable. I'm sorry this is happening to you. I get lots of questions about filing defamation (slander/libel) claims against coworkers and supervisors. In general, it's usually not worth the hassle. First of all, your coworker probably isn't wealthy, and even if they are, they may not be collectable. You might get a judgment for a gazillion dollars against them, but so what? If you can't collect, what's the point?

Now, let's talk a bit about slander and libel. You would need to prove a false statement of fact, not opinion. Examples of false statements of fact: "Joe stole $100 from the cash register;" "Jane is a child molester;" "Artie was arrested for embezzlement." Examples of opinion that probably will never be defamation: "Joe didn't fit in;" "We decided to go a different way;" "Artie's performance wasn't up to our high standards." In between, there are lots of shades of gray. Here in Florida, I find the courts absolutely hate defamation cases by employees. You'll want to check with an employment lawyer in your state about your rights if you decide to pursue something against your coworker.

Next, you'll have to prove the statement was "published" to a third party. All this means is it was said to someone besides you. Here's where it gets tricky. A corporation is a "person" for most legal purposes. If a corporation publishes a statement to itself, that's probably not defamation. If a coworker reports something to her boss, HR puts something in your file, or your supervisor announces your discipline to the corporate Board, that's probably not a publication.

You'll also encounter the sticky issue of "privilege." Some statements are going to be covered by an "absolute privilege," meaning that they'll never be defamatory. These can include statements made in a legal proceeding like a deposition, court testimony or an unemployment hearing. Statements made to police are likely privileged. Some privileged statements are under a "qualified privilege," meaning you can overcome the privilege if you show that the statements were made with malice or were published beyond the circle of people who needed to know. Examples of qualified privilege would be statements made to an employer in a sexual harassment investigation and statements made to a government agency as part of an investigation. In some states, job references are somewhat privileged. However, if an employer deliberately gives out false facts about you, that's probably still defamation.

Whether your company will be liable for your coworker's statements will depend on whether those statements were  made within the scope of that person's employment. For instance, if an HR person gave false information to a job reference based on what is in your file, the company may be liable. It's difficult to get courts to hold a company liable for an intentional wrongdoing of one of its employees. Mostly, they'll say it was done for some individual purpose and not a company purpose, so was outside the scope of employment. If the company president or someone who can bind the company by their actions defames you, the company may also be liable.

Since the statements by your coworker cost you a job, you'll certainly be able to prove damages. If you think you have a defamation case, definitely talk to an employment lawyer in your state.

My Employer Defamed Me!

So your employer called you incompetent. Or you disagree with your write-up. You're hopping mad. It's a lie! You're ready to sue. Slander. Libel. It has to be something you can sue for, right? Meh. Probably not. Slander and libel are in the general category of defamation. Defamation is where your employer or former employer makes a false statement of fact about you to someone other than you that damages your reputation. But most statements, even false ones, probably aren't defamation.

Here's what you need to know about defamation in the workplace:

References: Some states have statutes protecting job references to some extent, but even then the employer generally cannot give out knowingly false information. A statement that the employee was an embezzler, ponzi schemer, or pedophile, made when the person giving the reference knew it was false, will probably not be protected.

Qualified privilege: Employers also have a qualified privilege, that is, one that can be overcome, to conduct an investigation of employee wrongdoing. For instance, if someone complains of age discrimination, the employer’s human resources person, attorney, and the named witnesses can speak about the investigation and will probably be protected. There are some ways to overcome a qualified privilege, so you’ll want to talk to an attorney even if you think the statement was privileged.

Publication: The information must have been “published” to a third party, which only means that it had to be said to someone other than you. Some states consider statements made inside the company not to have been published to a third person. A statement to you about you will never be defamation unless others were present to hear it.

Absolute privilege: Some communications can never be the subject of a defamation case no matter how knowingly false. These may include statements made in a legal proceeding, statements made to police, to administrative agencies (such as unemployment), and by government officials in the scope of their employment. I say “may” because this can vary by state and can be fact-specific.

Opinion: Statements of opinion are not defamation. If the employer simply says that the employee was a poor performer, the statements may well be of opinion, not fact. Statements like, “In my opinion, she was a pedophile,” will not get around the law of defamation.

Donna’s tips:

a. Employees can defame former employers too, so be careful. Corporations can be defamed just the same as individuals. If you have a blog, website, or make statements disparaging the company or their products, you should be careful to get your facts right.

b. Defamation claims against employers can be tough. Many judges just don’t like them.

c. Sometimes a cease and desist letter will accomplish more than a lawsuit. Getting the defamer to stop the statements might be more valuable to you.

d. If you are thinking about filing a defamation claim against an individual, be careful and make sure the person has assets that will make them collectible. Broke defendants can be frustrating when you try to collect.