How can I prove that my former employer defamed me?

Question

I was laid off from my last job, along with a handful of other employees, when the company had to downsize. I've been looking for work, but I keep running into the same problem. I get through the first interview, everything looks good, but then I never hear back again. I have a bad feeling that my former manager may be giving me a negative reference. He never liked me, and he often said that I was insubordinate when I disagreed with him. I don't list him as a reference, but I have to give the names of my previous managers, so he is on my application forms. Is there anything I can do about this? Can I sue him to make him stop?

Answer

There are a few questions to answer here. First, is your former manager the cause of your problems? Second, is he doing anything that would give you a basis for a lawsuit? And third, if so, what can you do about it?

To figure out the answer to the first question, you have a few options. You can try going back to some of the companies that interviewed you and asking what happened. If you didn't hear back about your application, however, you probably won't hear back this time either. You could also ask a friend to call your former company, asking for a job reference for you. Or, you could hire a firm to do the same thing. There are plenty of reference-checking services out there who will call your former employers and find out what they are saying.

If you learn that your former manager is saying bad things about you, your plan of action depends on just how bad those statements are. If the manager is lying, you may have a legal claim for defamation. However, defamation can be very difficult to prove. You would have to show that the manager is making false statements of fact (not opinion) and that those statements harmed you. Opinions can't be the basis of a defamation claim. So, if the manager is saying that he believed you were insubordinate and did not like working with you, you don't have legal recourse. Those are his opinions, whether you agree with them or not.

Even if you can show that the manager is hurting your job hunt by lying, you may not win a defamation claim. In many states, statements made in the course of giving a reference cannot be the basis of a defamation claim unless they were made with malice. This means, essentially, that the manager must have intended to cause you harm. Because it can be tough to prove someone else's state of mind, proving malice is a very high bar to cross. (To find out your state's rules on references and defamation, select it from the list at our Hiring Lawsuits page.)

If you believe your manager is defaming you, the best strategy is to speak to an attorney. An attorney can write a demand letter to your former employer, insisting that the manager stop and pay you damages. Although you could write your own letter, employers tend to pay a lot more attention to correspondence from lawyers. In the meantime, give some thought to how you might avoid this problem in the future. Does your former manager have a manager whom you could list instead? Could you list the HR representative? Keeping the bad reference giver's name out of your job search is the strategy most likely to succeed in the long run.

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