RE: the following article; negative reference by employer HR coding system.
can we sue for defamation? we may have proof
My wife recently discovered that her former employer (the business manager) provided negative references about her to prospective employers which may have damaged her reputation and prevented her from getting hired from any employers in the industry. The business manager not only gave negative feedback, but she also entered a code on their computer system (viewable by other employers in the industry) which indicated my wife was not hirable and that she left the company without any notice.
Avoiding Defamation in the Workplace, Giving References and Disciplining Employees While Avoiding Liability
Many states have passed or are considering legislation that would grant civil immunity to employers who provide accurate references for their employees. Typically, this legislation provides that an employer who provides a reference at the request of an employee or a prospective employer is presumed to be acting in good faith. Unless lack of good faith is shown by clear and convincing evidence, the employer is immune from all civil liability that may result. Thus, unless an employer knowingly provides false information, makes a reference maliciously, or violates anti-discrimination laws, liability should not attach. Even if an employer is covered by this type of legislation, however, the following tips should be considered as a way to minimize the risk of liability arising from a negative reference.
Can a Negative Employment Reference be Defamation?
Those elements were satisfied here. However, courts have also developed some defences to defamation. One is known is justification, which means that the comments, including the normal implications one would take from those comments, are essentially truthful. A second defence is known as qualified privilege. Qualified privilege rebuts the normal presumption that a defamatory comment is made maliciously. In some circumstances, including the giving of employee references, the law seeks to encourage frank and honest assessments. Therefore, provided that the employer is not acting with malice, it is permitted to respond to a request for a reference by giving an opinion, even if that opinion would tend to harm the employee’s reputation and their job prospects.
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Defamation of Character Lawsuits: Proving Actual Harm
To prove mental or physical anguish, you would testify about the
severe effects the defamation has had on you. You would also need to
provide lay witnesses, such as a spouse, a relative, and/or a close
friend, to testify about the noticeable changes in you as a result of
the incident. However, you most likely would also need your doctor or
other treatment provider to testify about your treatment, if you have
had any. You would need to show that any mental health or physical
health consequences indeed resulted from the defamatory statement and
were not pre-existing. If they were, your doctor would need to explain
how the defamatory statement worsened your condition. You would also
want to provide medical bills to show what the treatment cost you out of
Fired with no reason and given negative employment reference.
My husband was a maintenance person for a large rental property. About a month ago, out of the blue, he was called to the rental office, where he was greeted by an attorney and given a "Notice of Termination", all while the Property Manager, who had hired him, watched.
The only reason stated on the notice for the termination was "At will", and because there had never been any indication of dissatisfaction with his work performance and he had never received a reprimand of any kind, my husband asked the manager for an explanation. In response he was told, by the attorney, that they were not required to give him a reason.
Shortly after his termination we became aware of a letter that had been sent to the owner of the property.
The letter is from a group of tenants and cites numerous complaints they have regarding the Property Manager, while at the same time praising my husband for the quality of his work and dedication to the property. We now believe this to be the reason he was terminated.
In addition, there is currently a case pending with the Labor Commission because my husband was not issued his final pay when he was terminated, and the check he did receive 2 weeks later did not include payment for accrued vacation or over-time owed.
To make matters worse, it appears that the property manager has givin my husband a negative employment reference which is making it impossible for him to find another job.
What can we do?
Please help, we feel like we are living in a nightmare.
Defamation, Slander, and Libel
It is also easier to win defamation cases when intentionally false statements are made, as opposed to just negligent statements. Winning a defamation case on the basis of a negligent statement about a public figure is not typically possible because actual malice is required. However, private individuals could still successfully prevail in defamation lawsuits based on statements that were published or spoken by a speaker who was negligent in determining the truth of the statements.
Defamation Law Lawyers & Attorneys
Traditionally, yes, anyone who repeats or reposts libelous statements is just as responsible for defamation as the originally person making them if they could have reasonably known the statements to be false. Under the Communications Decency Act, however, there is a strong protection for third party “intermediaries” reposting content online, especially in social media. Because it is difficult to corroborate the truth of memes and viral content, you generally can’t be held responsible for reposting someone else’s libelous content online. Still, it is more prudent to look for the truth before reposting, especially as a company or a public figure, because such protections are not absolute.
Negative statements in work reference protected from defamation lawsuit, Ontario court rules
In his defence, Riggin argued his remarks were made as part of an employment reference and therefore entitled to what is known as qualified privilege — essentially immunity from a defamation action. The underlying idea is that an employer must be able to give an honest and candid job reference without fear of being sued. Otherwise, the court found, such references could be rendered useless or misleading.
Defenses to a Defamation Lawsuit
Absolute privilege is
also a complete defense to a lawsuit. Some types of statements -- or the
settings in which they are made -- are privileged no matter how
negative they may be. For example, arguments that lawyers make in court,
comments judges make, and testimony given by witnesses in a trial are all
absolutely privileged. There is a strong interest in promoting vigorous
advocacy from attorneys and truthful testimony from witnesses, so people cannot
be punished for things they say in those contexts. Also, the fact that
witnesses testify under oath lends credence to what they are saying, and that
testimony is always protected.
Negative employment references
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Nebraska is also one of the few states with a service letter law. Sometimes ex-employers do not want to write reference letters for fear of a defamation suit. Nebraska law, however, demands that in certain sectors, references must be provided if requested and sets out the form in which the letters must appear. The reference defamation provision law applies to public service corporations, the contractors who work for them, and the contractors who work for the state.
Defamation at Work
more http://www.myemploymentlawyer.com/all/Defamation at Work
An employer has a qualified privilege to make statements about its employees concerning matters of their employment, especially when made in response to another employer's request for a reference. The "privilege" is a defense to a defamation claim. An employer can, for example, respond to a reference request by stating that an employee "stole from us" and avoid a finding for defamation at work, even if wrong, as long as the employer did not act out of malice. Public policy encourages a free flow of information among employers about potential employees, so the law carves an exception out of the law of workplace defamation for reference requests. If the employer knows that the employee did not steal but says so anyways, the employer probably loses the privilege.
Elements of a Claim
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Cases of defamation occurring in social media (for example, negative tweets on twitter and negative Facebook posts) are increasing every year; for example, in 2014 a high school teacher was awarded $105,000 for defamatory comments made about them by one of their former students, who claimed she had stolen his fathers’ teaching role when in reality his father had left his role for health reasons. So you should always be careful what you write or say about other people.