If an employer (or more likely, a former employer) makes false statements about you, you might have a legal claim for defamation. Defamation is a personal injury, which means that you may be awarded damages not only for your financial losses, but also for your emotional distress. A winning party might even be awarded punitive damages, to punish the employer for its wrongdoing. But that’s only if you win the case, and defamation can be hard to prove.
Defamation happens when someone makes an intentional false statement that harms another person. When the statement is made orally, it’s called slander; a written statement is called libel.
In the job context, defamation claims often arise after the employment relationship ends, when a former employer is asked for a reference. In this situation, the employee claims that a former employer gave a false reference or another statement that damaged the employee’s reputation and/or hurt the employee’s chances of getting another job. Typically, the false statement is about the reasons why the employee was fired or the quality of the employee’s performance.
State rules differ on what an employee must prove to win a defamation case. Generally speaking, however, the employee must persuade the judge or jury of these five things:
If you think your former employer may have committed defamation, you should talk to an employment lawyer to find out whether your case is worth pursuing. These claims can be tough to win. The actual misconduct generally takes place in a private conversation that you aren’t privy to, so it can be hard to prove a defamatory statement was made. You’ll also have to show that the false statement was the reason you were turned down for a new job. And, in states that allow employers to claim a privilege for statements made as part of a reference, you’ll have to prove malice on the employer’s part.
Before you meet with a lawyer to assess your claims, gather any evidence you have. For example, had you gotten an offer letter or other indication that you would get the new position before your prospective employer pulled the plug? Do you have anything in writing about your former employer’s reference policy – or the actual statements that were made? Did you hear anything from the prospective employer that made you suspicious? There are legal tools a lawyer can use to gather evidence of what was said to whom, but you should be prepared to explain what led you to believe that your former employer defamed you (and to hand over any relevant evidence).