What can I do if a former employer lies about me?

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Question:

I was laid off from my last job when the company decided to downsize. I received a severance package, and the paperwork said that the company would follow its standard reference policy of giving out only my dates of employment, positions held at the company, and compensation. I'm looking for a new job, but every time I get to the stage of the hiring process where they check my references, I get turned down. A recruiter told me that my former manager is badmouthing me, telling everyone who calls that he thinks I have a poor attitude and no respect for authority. Can he violate the company's own policy? Is there anything I can do to stop this? 

Answer:

From a legal standpoint, there may not be much you can do about your former manager's negative comments.

In this situation, the legal claim that might be available to you is for defamation. To prove a defamation claim, you would have to show that your former employer made false statements of fact about you, with malice, and that you were harmed as a result. Based on the facts you've related, it sounds like you would face a couple of potential problems in making a defamation claim:

  • Statements of opinion can't be defamatory. A false factual statement -- that you stole from the company or failed a drug test, for example -- can provide a foundation for a defamation claim. However, a statement of opinion, which really can't be proven true or false, isn't enough to prove defamation. It sounds like your manager is giving his opinion, as negative as it may be. 
  • Many states protect employers giving references from defamation claims. A number of states recognize a privilege between employers asking for a reference and employers giving one. This privilege protects the employer giving the reference from legal action, unless that employer acts with malice. Although states define malice differently, it generally means that the employer must have known the statement was false and/or intended to mislead the prospective employer. In your situation, your manager may well believe those negative things about you, even if you disagree. 

However, there may be a practical way to shut this manager up. Contact your former employer's human resources department or the person who signed your severance paperwork. Explain that your former manager is going beyond the company's policy and giving out negative information that is harming your job search. Ask the company to immediately put a stop to this behavior and enforce its standard reference policy. 

Even if you would have trouble ultimately winning a defamation claim, your former employer doesn't want to take its chances in court. Companies adopt limited reference policies like this precisely to avoid defamation claims. Unless there is a broad conspiracy at your former employer to prevent you from ever working again, a brief letter should put an end to this problem. After all, your former employer's goal should be to see you working -- not continuing to collect unemployment (which is charged against its account). 

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