References from coworkers, supervisors, and past employers are a crucial part of the hiring process in New York. These conversations provide employers insight into an applicant’s performance, behavior, and achievements in the workplace. While many people choose references who would likely provide a good report, not all of them are positive.
If a former employer provides you with a bad reference, you may wonder if you can take action against him or her. While an employer has the right to describe his or her truthful experience, the employer can face liability under defamation laws if he or she lies about an employee while giving a reference.
State And Federal Laws On Bad References
While a bad reference can severely harm an applicant’s chances of getting hired, they are not usually illegal. There are no state or federal laws that prohibit an employer, a coworker, or anyone else from providing a poor reference for someone else. However, an employer may cross the line and face liability if he or she makes an untrue statement about an applicant’s performance.
Many states have legislation that provides employers with qualified immunity when providing a reference in good faith, protecting them from civil liability. However, employers can still face lawsuits if they provide a reference in bad faith, relaying untruthful information about an employee to a potential employer.
There are many reasons why an employer may provide an untrue reference. The employer may want to retaliate against the employee for reporting the company to a regulatory agency. The employer may have a bias against the employee based on race, sex, or another protected class. In some cases, an employer simply dislikes the employee and wants to harm his or her future job prospects.
Pursuing a Defamation Case After A Bad Reference
It can be difficult to know why an employer rejected you from a position. Many prospective employers send a general rejection letter or cease communication with potential applicants completely. However, if you discover that a former employer provided a negative, untruthful reference, you could pursue legal action against him or her.
To prove an employer defamation case, you will need to gather sufficient evidence proving that the employer lied about you in the reference. Specifically, you will need to establish the following four elements.
- The employer made a false and defamatory statement about you, either spoken or written.
- The employer published the statement to a third party, likely the prospective employer, without authorization.
- The employer acted with some degree of fault when making the statement.
- The statement caused harm to you, likely because you were rejected from the job.
If you can establish these elements, you can hold your former employer liable for his or her actions in New York civil court and recover compensation for the damages you suffered. An attorney can help you investigate your claim and gather the evidence you need to hold the employer accountable.
Speak To A Syracuse Employment Attorney
If you believe that a former employer defamed you while providing a reference, you have the right to pursue a claim against him or her. In these situations, it is important to consult with a Syracuse employment lawyer.
An attorney can evaluate the situation, help you understand your legal options, and represent you throughout your claim. Contact a lawyer as soon as possible to discuss your case and strategize your next steps.
FAQs
Can I find out what a former employer actually said about me during a reference check?
There is no federal or New York state law that gives employees an automatic right to access the contents of a reference given by a former employer. However, you may be able to learn what was said by using a professional reference-checking service, asking the prospective employer directly, or obtaining the information through the discovery process if you pursue a defamation lawsuit. If a prospective employer is willing to share the reference details, that information can become critical evidence in a legal claim against your former employer.
Can an employer in New York legally refuse to give any reference at all?
Yes. No law in New York requires an employer to provide a reference for a current or former employee. Many companies have adopted neutral reference policies, providing only the employee’s job title, dates of employment, and eligibility for rehire in order to limit their own legal exposure. While this practice is entirely legal, a sudden shift to a neutral or minimal reference after an employee reported misconduct or discrimination could itself be a warning sign worth discussing with an employment attorney.
What is the difference between libel and slander in the context of a bad employment reference?
In defamation law, libel refers to false statements made in written form, such as in a written reference letter or email, while slander refers to false statements made verbally, such as during a phone reference call. Both forms can support a defamation claim in New York, though written defamation is generally easier to prove because it produces documentary evidence. Under New York Civil Practice Law and Rules § 215, the statute of limitations for either form of defamation is one year from the date the false statement was made or communicated.
What types of damages can I recover if I win a defamation case against a former employer in New York?
If you successfully prove employer defamation in New York, you may be entitled to recover compensatory damages for economic losses such as lost wages or a rescinded job offer, as well as damages for harm to your professional reputation and emotional distress. In cases involving particularly malicious or reckless conduct, punitive damages may also be available. The actual value of a defamation claim depends on the severity of the false statements, the scope of their publication, and the measurable impact on your career and earnings.
How can I protect myself from a false reference before I leave a job in New York?
Before leaving an employer, employees can take proactive steps to reduce the risk of receiving a damaging false reference. Requesting a written reference letter before your departure, retaining copies of performance reviews and positive feedback, and keeping records of any workplace conflicts or disciplinary disputes creates a paper trail that may prove useful later. If you suspect a specific supervisor may provide a harmful false reference, documenting that concern before you leave and sharing it with an employment attorney early creates a contemporaneous record that can support a defamation claim if one becomes necessary.
Employment Law Legal Resources
- New York’s Statute of Limitations on Employment Law
- Common Ways Employers Violate Overtime Laws in New York
- Understand Your Employment Contract: What To Look For
- Can an Employer Ask for Proof of Disability?
- Employer Responsibility to Correct Workplace Harassment
- What to Do if Your Employer Violates New York’s Paid Sick Leave Law
- What Can Happen if You Misclassify an Employee in New York?