Legal Question in Business Law in California

Re: Allowed to say re: references

If the past employer typically never tells the truth, the past employer is still "allowed" to tell the truth in a future conversation with an inquiring prospective employer. No law requires a person to continue to tell lies if they decide to go straight.

Seriously, I recognize your question as being one expressing concern about possible defamatory statements from your former employer to a possible new employer while checking your references.

First, truth is always a defense to a charge of defamation (libel or slander). However, in addition to defamation, people are sometimes successfully sued for unnecessarily revealing private information that doesn't need to get out because it is embarrasing or its release would otherwise adversely affect the victim.

Nevertheless, there is a public policy holding that free and unfettered exchange of information between past and potential employers serves a worthwhile social and economic purpose, so such conversations anjoy a limited "privilege." This means that such conversations may not be actionable as defamatory or unfairly invading privacy IF the party giving the information or expressing the opinions does so in good faith and without a malicious intent, even if the statements might involve opinion, divulge embarrassing personal facts, or otherwise be defamatory.

So, its pretty hard to put a lid on exchanges of views between your past and future employers. On the other hand, many employers are gun-shy of possible suits, and don't tell the inquiring party much more than "name, rank and serial number."