Legal Question in Business Law in California

Re: Bad Reference

Giving a bad reference may be defamation; if done in writing it is called libel, and oral defamation is known as slander. Both are torts, and one can sue for damages or for an injunction.

However, winning a suit and getting a judgment for damages is not a slam dunk. For example, there are at least two defenses to a charge of defamation: truth and privilege.

Truth is always a defense in a defamation action, and nowadays the plaintiff is generally expected to prove the statements about her were false, rather than the defendant having to prove their truth--this flows from the free-speech protection of the First Amendment.

In addition, for public-policy reasons courts may allow what is called a 'conditional privilege' to a former employer in giving information to a prospective employer, particularly if the information is volunteered rather than given in response to a specific question. The reason such statements are privileged (protected against defamation suits) is that there is a proper social purpose for sharing employment history, credit information, etc. The privilege is conditional, however; it is lost if the statements are made maliciously or perhaps even with careless disregard for the truth.

So, the bottom line is that if the former employer was responsibly giving his views for a proper purpose, and you have little firm evidence of an improper motive such as malice, your chances of winning are relatively slim. On the other hand, if you have strong evidence (such as copies of refrence letters) and the former employer showed a malicious disregard for the truth, you have a really good chance of winning, perhaps even with punitive damages.

Re: Bad Reference

You may certainly pursue an action for defamation if in fact you are being truly defamed and have been damage. You have requirement to prove defamation and must have evidence, not just feelings or words. Someone must testify for you or other written evidence must be presented in addition to your own. There may be a possible privilege if info provided is or may be true. Need to speak with you before we can properly analyze this. Even with best evidence, litigation is tough, costly and a gamble.