Can I sue for defamation if I have to repeat my former employer's false reasons for firing me?

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Question:

My former California employer fired me. Although the company president claimed that I had failed to meet my deadlines, this is completely false. I never missed a deadline. I was fired because the President wanted to hire his wife for my position, which he did as soon as I was out the door.

Now I'm looking for a new job, and I keep getting asked why I left my last one. If I lie and say I quit or was laid off, they might call for a reference and find out the company's official reason for firing me. But who's going to hire me if I say I was fired for missing deadlines, which isn't even true? What can I do?

Answer:

You're in a real bind, but at least it's one that California law recognizes. In most states, you can sue a former employer for defamation if it knowingly says false things about you, with malice, and you are denied a job because of it. Although many states protect employers who provide an honest reference (or one they believe, in good faith, to be honest), an employer that intentionally lies or attempts to mislead a prospective employer can generally still be sued. 

California goes a step further. In California, the former employer doesn't have to actually say anything to a prospective employer to be liable for defamation. California courts recognize the theory of "self-publication" in defamation claims. Under this theory, an employee who feels compelled to repeat false information about a previous job -- because, as in your case, failing to raise it might lead the potential employer to believe the employee is hiding something -- might have a defamation claim. In essence, the employee is treated as the mouthpiece of the former employer, who can be held liable for putting the employee in a situation where he or she had to repeat damaging information. 

So the good news is that you might have a legal claim against your former employer if you have to repeat the false story about missed deadlines. The bad news is that you have a claim only if you don't get the job you apply for, probably not the best outcome for you. 

Rather than waiting to lose job opportunities, use your potential legal claim now. Get in touch with whoever handles references at your former employer and explain that you are looking for a new job. Tell them that you believe you will have a strong defamation lawsuit if the company repeats -- or if you are required to repeat -- its false reason for firing you. Ask to hear exactly what they plan to say when called for a reference, and tell them you will follow up if you learn that your job search has been harmed by what they are saying about you. Unless they are eager to see the inside of a courtroom, this should take care of the problem. 

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