What Can a Former Employer Legally Say About Me?

Searching for a new job can be a challenging and stressful time in anyone’s life. Cover letters, applications, and interviews require a great deal of time and effort.

If you’ve ever left a position on less-than-friendly terms, you may be worried about any negative reference information your past employer could say about you. Employers have the legal right to share general details about their past employees, good and bad. However, when an employer provides misleading information as a way to retaliate, this may be grounds for a lawsuit. 

Landing a job is a serious matter, and false claims can severely impact your chances of securing a position. Although the law guarantees free speech, employers must act in good faith when providing references.

Workplace Defamation in California 

Defamation is a severe legal offense that occurs when an individual makes false or misleading statements about another party. Although not all harmful or damaging information falls under the legal scope of defamation, you may be able to file a lawsuit in some instances.

Employers in California are protected under the state’s qualified privilege laws whenever they provide information about a previous employee. Generally, employers are not liable as long as they express information factually and without malice.

When it comes to reference checks, former employers can freely share information on a wide range of topics, including:

  • Job performance
  • Eligibility for a role
  • Past qualifications
  • Experience (positive and negative)
  • Relationship with employer 
  • Position details 

Notably, for any shared information to be immune from liability, statements must be based upon credible evidence and expressed in good faith. Whenever an employer shares inaccurate information and you suffer damages, a lawsuit may be appropriate.

Protected Information Violations  

Many California employers have a wide range of internal policies regarding sharing personal information about previous employers. 

Depending on your circumstances, your previous employer’s human resources department may have protocols for providing references for past employees. Generally, these policies are not legally bound. 

However, in some situations, you may have signed a non-disclosure or non-disparagement agreement with your former employer. As such, both parties are bound by the terms of the contract. Whenever a breach occurs, the affected party may be eligible to file a claim.

Proving a Defamation Claim in California

Defamation claims in California must generally meet the following elements:

  • A false or misleading statement was made as a fact, not an opinion
  • The false information was communicated to a third party, verbally or in writing
  • The employee in question suffered damages due to defamation 

Some examples of information that could lead to a defamation lawsuit include the following:

  • Reckless or false information about an individual
  • A malicious reference based upon lies
  • Discussing protected activities or civil rights
  • Contract violations 

While defamation in California does not constitute a criminal offense, the consequences of a civil lawsuit include serious financial penalties, including punitive damages.

Evidence for Workplace Defamation

While it’s pretty easy for a disgruntled employer to share false information, proving defamation in court can pose a challenge. Because many defamation claims are based on spoken statements, uncovering the evidence necessary to meet the legal thresholds of a valid claim can be difficult. 

If you’ve been the victim of defamation, you’ll need to present sufficient evidence of their illegal behavior and any damages you suffered. Some common damages that can result from employer defamation include:

  • Lost wages
  • Diminished earning capacity
  • Reputation damage
  • Emotional suffering

If you’ve experienced defamation, a seasoned labor law attorney will be your best resource in recovering your losses. An attorney can work to gather evidence against your former employer and litigate on your behalf. In some cases, parties may settle workplace defamation lawsuits out of court. Other times, a trial may be the only way to hold the defaming party accountable for their actions.