Dealing With a Negative Reference From an Employer

What are your rights if you don't get a job because of a bad reference?

By , J.D., UC Berkeley School of Law

If you are looking for a job, you need all the help you can get, especially in tough economic times. Positive references from former employers can go a long way towards getting your foot in the door of a new job.

Negative references can have an equally strong effect, but the door is more likely to slam in your face. So what are your rights if you lose a job opportunity because of a bad reference? And how can you avoid this situation in the future?

Can You Sue an Employer for a Bad Reference?

If you aren't hired because of a bad reference, you may have a legal claim against your former employer. The most common is for defamation. Defamation occurs when someone makes an intentional false statement that causes another person injury.

Proving Defamation

To prove defamation in the context of references, you must be able to show:

  • Your former employer made a false statement of fact about you. Statements of opinion ("I think John had an attitude problem") cannot form the basis of a defamation claim. Nor can true statements: If your former employer's statement is true, no matter how damaging, it isn't defamation. If, for example, your former employer says you were caught stealing from the company, you can't sue for defamation if that's exactly what happened.
  • Your former employer "published" the statement. This doesn't refer to printing a book; it just means that the employer made the statement to someone (such as the hiring manager at the company where you applied for a job).
  • The former employer knew or had reason to know the statement was false. If the former employer had a reasonable, good faith belief that the statement was true, there can be no defamation claim.
  • The statement was not privileged. Many states have "privilege" laws that seek to encourage candor and open communications in certain contexts, such as in a marriage or in the doctor-patient relationship. A number of states recognize a privilege for statements made in the context of employment references, as long as those statements are made without malice. In these states, an employee can't sue over a non-malicious reference.
  • The employee suffered harm as a result of the statement. If you can show that you didn't get a job because of the reference, you can meet this part of the test.

Learn about Applying for a Job with a Criminal Record.

How to Find Out What Your References Said About You

If you suspect a former employer has given you a bad reference, you might want to know what exactly was said to make sure it's accurate—or at least based in reality.

For starters, if you've been turned down for a job, you can ask the company with which you interviewed for a copy of all your application materials, including notes from conversations with references. The company might suspect you are preparing to sue, but in some cases it will hand over the documents even without a call from an attorney or a court order.

Another option is to ask a friend to call up your former company, posing as a potential employer. While this might appear to be a drastic option, it might be your best shot at finding out what your former employer is telling potential employers about you. It could also yield useful evidence if you decide to file a defamation lawsuit.

    Avoiding Bad References From Employers

    Most people who are looking for work would rather have a job than a potential lawsuit. The best way to protect yourself from a bad reference is to do your homework ahead of time. Get in touch with your former managers and let them know you are in the midst of a job search. Ask them if they are willing to serve as references for you, if you are asked to provide names. Ask them up front whether they can give you a positive reference and what they will say if a prospective employer calls.

    Offer to take your references out to lunch and catch them up on your experience and accomplishments. Explain what types of jobs you're looking for and ask them to share any advice or leads they might have. Try to remind them of projects you worked on or other positive experiences at their company. If they agree to serve as a reference, thank them for their help -- and thank them again after you get a job.

    You can't always predict who a manager will contact for a reference. Even if you provide a list of names, the manager may decide to call others at the company. In this situation, the best you can do is to offer an explanation. For example, if you know that the company you're interviewing with calls every applicant's last three managers, and you know one of those manager doesn't like you, you might want to say something about it.

    You could tell the hiring manager that you didn't have a good relationship with that previous manager, but that you did good work despite the lack of chemistry, and that you have had positive relationships with your other managers. You might offer the name of someone else at the company who can vouch for your performance.

    Get Legal Help

    If you are missing out on job opportunities because of a negative reference from a previous employer, you might want to consult with an employment lawyer. A lawyer can figure out whether you have any legal claims against the prior employer and how best to protect your rights.

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