Is a Former Employer's Bad Reference Illegal?

In most cases, it's OK for a previous employer to share truthful information about a past employee with a new employer. The law supports giving honest opinions about how someone worked, whether positive or negative. But if an employer goes too far and tells untrue things or lies, it could be against the law. This is because of defamation laws. Defamation laws make it illegal to knowingly share false information about a former employee when giving a reference to a potential employer.

This article briefly overviews when a former employer's bad reference is illegal.

Employer Defamation: Facts, Falsehoods, and Opinions

A bad reference from a former employer can easily torpedo a job seeker's chances of landing a new job. As suggested, it is only by straying from the truth that a prior employer can make a bad reference illegal. But there are some practical challenges with any defamation case. These challenges are heightened in the context of job references.

Discovering the cause or reason a job applicant was denied is difficult. These days, job seekers are rarely notified when they are not hired. Unfortunately, no news is usually bad news. Even if someone does get notified that they were denied a particular job, the employer rarely explains the reason. As a result, the applicant might be left in the dark about any potentially negative reference checks from a past employer.

Some states have stricter rules against retaliation or giving wrong references about a former employee. For instance, in California, it's considered a crime if a former employer, through some false information, tries to stop their ex-employee from getting a new job.

Company Policies on References: Ask, But Don't Tell

These days, it's common for whole companies to have policies that prevent human resources (HR) representatives from sharing information when a prospective employer asks about a previous employee. They might only confirm if the person worked there and share the dates when they started and finished working. Many companies do this to avoid legal issues or problems with former employees.

The downside is that employees with great records might not get a helpful reference. Even worse, future employers who don't have much experience might think negatively about someone if their past employer doesn't give a positive reference. Even though it's not ideal, these policies are allowed by the law.

Concerned About Employment Laws? Have an Attorney Answer Your Questions

If you believe your former employer violated employment laws by misrepresenting your employment history, you may want to explore legal action.

An experienced employment law attorney can determine whether a legal recourse for defamation arises from your former employer's reference. An employment attorney will be familiar with federal or state laws applying to your case.

Learn more about your rights and options by contacting an employment lawyer today for legal advice.