Many employers worry that giving a bad reference for a former employee is illegal. Because of this, human resources departments of companies often refuse to give any information about former employees except for confirming the dates that the employee worked for the company.
Although it is possible for a former employee to bring a lawsuit because a company’s representative gives a bad reference, the more important consideration is whether the legal case has merit.
The area of law that relates to this is defamation. Defamation laws prohibit any person from knowingly saying or publishing anything about another person that is not true. For defamation legal cases, truth is an absolute defense. Any truthful statement made about another person is not defamation, even if the truth may be negative.
There are no laws that prevent any employer from giving accurate and truthful information about a previous employee. Opinions of the previous employer are also protected. When a person disagrees with the opinion of the previous employer, it is not grounds for a defamation lawsuit. However, when a previous employer knowingly makes false statements about a person who worked there, this is illegal and can serve as the basis for a lawsuit if it can be proven.
In California, it is also a misdemeanor crime for any former employer to use false misrepresentation to prevent or attempt to prevent a former employee from being hired for another job. Other state laws protect a former employee from retaliation or false references given by a previous employer.
Proving a defamation case is not easy. One difficulty is that when a person is not hired for a position, the individual is rarely told the reason for not being chosen. Finding out if the reason for not getting a job was due to receiving a bad reference from a former employer is difficult. Even if a bad reference was given, there is rarely any record made of the reference. To prevail against a former employer in a defamation case requires proof that the reference was given and that it contained false factual statements.
Certainly, there is no denying that a bad reference may cause the rejection of a candidate by a potential employer. Potential employers may use references as part of the decision-making process for hiring a new employee; nevertheless, references are usually not the only consideration. Other applicants for the same job position made be better qualified, have more experience, or have greater skills than the person who does not get the job.
