Can I Sue My Former Employer For Giving False Information About Me?

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An AOL Jobs reader asks:

I had a friend place a call for a job reference on me. My other jobs have always got a good reference on me from this place. But, now someone who doesn't like me got promoted and I'm getting bad references. The things he is saying are lies and very bad lies might I add. However, my file is clean, I'd never been written up for anything and gave a 2-week notice too. But, according to my reference I was fired!

Since my column Can My Old Boss Give Me A Bad Reference? came out, I've been getting lots of questions about references. In that column, I busted the myth that employers can't give out negative information and are limited by law to dates of employment and job title. But can your former employer give out false information? Are they legally protected if they do?

I've found no law in any state that protects employers if they give out false information. However, that doesn't mean you have an instant lawsuit if they do. The question is whether the false information they gave out violates any law. While state laws vary, here are some ways giving out false information about a former employee may equal a lawsuit:
  • Defamation: If your former employer is giving out false factual information that damages your reputation, then you may have a claim in your state for defamation. State laws on defamation vary, but the basic elements of a defamation claim are that the former employer made a statement they knew was false to a third person (could be verbal, in an email or text, or in a letter), the statement was one of fact, as opposed to opinion (they say you stole, missed 10 days of work, or you were fired when you actually quit), and you were damaged as a result.
Usually, making a false statement to you about you, or within the same company about you, won't be a statement to a third person. Where it gets trickier is statements of opinion: saying you didn't fit in, had poor performance where your performance was measured subjectively, or that you had a bad personality. Whether saying you were fired when you quit rises to the level of actionable defamation in your state is something you should talk to an employment lawyer in your state about.
  • False light: Some states recognize a claim called false light invasion of privacy, which is similar to defamation but can apply even to truthful statements. Basically, it means the former employer maliciously made a statement about you that places you in a false light, and that the statement was highly offensive or embarrassing. An example would be if the employer says you left right after a big fraud scandal at the company, but failed to mention that your leaving had nothing to do with the scandal.
  • Tortious interference: If you have a job offer or have already started working and your former employer gives out false information in order to cost you that new job, then they may be liable for tortuously interfering with your new employment. And yes, this happens more often than you'd think.
In general, if you think your former employer is giving out false information about you the key is being able to prove it. There are some professional reference checking companies you can find online (and no, I can't recommend any specific ones), that will pretend to be a potential employer and find out what they are saying about you. You'll get a report telling you what was said and by whom. In some states, this might be enough evidence. In some states, you might have to subpoena a potential employer and have them testify about what the former employer said about you. Most won't want to get involved and may even lie to protect a fellow employer.

Even if you decide not to sue, an effective way to stop this practice is to send a cease and desist letter to demand the former employer stop giving out false information. Once they know they're caught, most will stop. Sometimes the person giving out the false information will even be disciplined or fired.

You don't have to sit back and take it if a former employer is giving out false information. Talk to an employment lawyer in your state about your rights.

If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs.

Please note: Anything you write to me may be featured in one of my columns. I won't be able to respond individually to questions.
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