Working World

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 Donfeld, Kelley & Rollman. 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.

2 COMMENTS

• Victorious

  I worked on a job for over 20 years and was injured and ended up on workers comp and eventually ended on disability retirement and I am only getting one third of my regular salary when I was working. I did win the Workers Comp case, but after I became retired I had to work to supplement my income, and I was having a very hard time getting work, finally I started working for someone and they told me that my former employer (whom I was with for 20 years) had given me a real bad work review, they told my new employer that I had gotten them into trouble and that I had complained of harassment. after I filed for workers comp, they did start harassing me, cursing at me and everything you could think of and more which I wont mention. Anyway I have been working for my current employer for approx 5 years and recently they told me that in the last background check they did on me, that this same former employer is saying even worse things about me and my current employer is now questioning me. What can I do to stop this former employer for trying to defame my character. Isnt there a law that says thet can only verify my employment dates, title, salary? What is the ,imit? I am thinking about filing a lawsuit against my former employer for salndering my name, and trying to stop my from getting other jobs

  May 28, 2009

• Catherine Rhodes

  If I call for a reference on a potential hire and I'm told they can only verify dates of employment, I know there was a problem.

  Jan 13, 2009