If a former employer makes false statements about you, you may be eligible to file a defamation lawsuit. Defamation is a personal injury, meaning that you may recover damages for your financial losses and your emotional distress. Furthermore, you may even be awarded punitive damages in order to punish the employer for its wrongdoing.
Defamation occurs when an individual makes an intentionally false statement that harms another person. When the statement is written, it is called libel, while an oral statement is called slander.
In the context of employment, defamation claims typically arise after a relationship ends with the employer when a former employer is asked for a reference. In this scenario, the employee claims that a former employer gave a false reference or another damaging statement which harms the employee’s reputation and/or chances of gaining employment. In most cases, the false statement pertains to the reasons why the employee was terminated or the quality of the employee’s performance.
In order to obtain a successful outcome in a defamation case, the employee is required to convince the judge or jury of the following:
- The employer made a false statement of fact about the employee. True statements, no matter how damaging, do not apply. Furthermore, statements of opinion (i.e. “I think Steven didn’t like working here) is not a proper basis for a defamation claim.
- The employer “published” the statement. In other words, the employer made an actual statement to another individual. Several states consider “self-publication” as a way of fulfilling this requirement. Self-publication occurs when the employer makes the false statement directly to the employee, who is forced to repeat it to others.
- The employer knew or should have known that the statement was false. If the employer has good faith to believe that its statement was true, there is no defamation claim. By contrast, if the employer acts with reckless disregard for the truth, then that might support such a claim.
- The statement was not privileged. Statements made in candor or open communication are considered privileged, meaning that the speaker is protected from liability for making the statement—as long as he or she acted without malice.
- The employee suffered harm due to the false statement. There are some statements which the employee doesn’t have to prove, which are known as defamatory “per se.” For instance, many states consider statements which someone lacks the required skills of his or her chosen profession or trade, or that someone committed a criminal offense, to be defamatory per se. In cases where the employee must prove damage, the harm often involves another employer’s refusal to hire him or her due to the statement.