Is it Legal for My Prior Employer to Give me a Bad Reference?

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Is it Legal for My Prior Employer to Give me a Bad Reference?

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My last employer gave me a bad reference, saying that I lacked initiative and that I was too emotional. I vehemently disagree with these comments, and my boss certainly never shared his feelings with me. Do I have any legal recourse against this employer? Plus, the employer before my last will give only my employment dates and salary. Doesn’t the law require more?

California Civil Code Section 47(c) expressly protects from liability an employer who "without malice" provides a reference to a prospective employer regarding an employee. This provision protects all communications which are based upon "credible evidence" and given in good faith. "Malice" would likely be found only where a fact conveyed to a prospective employer can be verified as false, said with deliberate intent to injure the employee, or with reckless indifference to the truth. The statute also expressly protects statements that an employer would not rehire an employee.

For example, an employee sued because her former employer told a prospective employer, among other things, that she "acted like management" even though she was an hourly employee, was "more trouble than she was worth," and was unpopular with customers.

The court threw out the employee’s lawsuit, ruling that the communications by the employer were not only protected by Civil Code Section 47 but also are non-actionable statements of opinion; that is, that they are not objectively verifiable. The statements your employer made are similar. Unless you can show that your former employer intended to injure you, your lawsuit is unlikely to succeed.

Even though most references will not result in liability to the employer, the potential for litigation has resulted in many employers having a policy of providing only minimal information respecting employees, such as dates of employment, title and, with the permission of the employee, last salary or hourly wage. The employer has no legal obligation to provide additional information.

Amy Semmel is an attorney with the firm of Kelley-Semmel. Her practice emphasizes employment, trade secret and business tort law. The information discussed here is a general explanation of the law, and is not intended to serve as legal advice. Readers requiring legal advice regarding a specific situation should consult an employment attorney.

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