I have a prior employer - who happens to be the first on my resume (besides my current firm) so is the firm called for a reference - who is badmouthing me to potential employers, preventing me from obtaining employment. What can I do? I would rather not lie and delete this job from my resume. I did an excellent job at this firm.
Employment / Labor Attorney
If this prior employer is publishing false statements of fact about you, you can threaten and/or bring a claim of defamation against the company. However if the statements being made are opinions, and not statements of past or present facts, you really have no claim there. If the comments being made about you are provably related to retaliation for your engaging in some kind of protected activity, like reporting harassment or discrimination, or filing a workers compensation claim, or reporting wrongdoing to a government entity, you may have a claim.
Many employers are fearful of being sued for defamation, so even if there are only opinions being stated, a warning letter from you or an employment attorney about any future adverse statements being used as a basis for a lawsuit MIGHT cause it to stop.
Good luck to you.
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5 lawyers agree
Personal Injury Lawyer
An employee really has limited options here because employers have the right to state their opinion regarding past employees. Only if an employer is making false statements of fact about a former employee to prospective employers would the employee have a claim for defamation. Even then, employers enjoy a qualified immunity from claims for defamation in this context such that an employee must prove actual malice to prevail in court. This is no small undertaking.
You may wish to consider listing the job, but putting a co-worker or alternative supervisor who you are confident will vouch for you as the point of contact. You may also wish to consider proposing a mutual non-disparagement agreement to your former employer. The problem with this, however, is that unless they are particularly concerned about what YOU are saying behind their back, they would not have much of an incentive to agree.
I wish you the very best moving forward.
This answer is a general interpretation of the law and is not fact specific to your case. Likewise it does not create an attorney-client relationship. You should seek an attorney for a review of your specific facts and documents.
Employment / Labor Attorney
You can hire an online service to contact your employer for a reference check, in order to know exactly what your ex-employer is saying about you.
Labor Code section 1050 provides: "Any person, or agent or officer thereof, who, after having discharged an employee from the service of uch person or after an employee has voluntarily left such service, by any misrepresentation prevents or attempts to prevent the former employee from obtaining employment, is guilty of a misdemeanor."
Labor Code section 1052 provides: "Any person who knowingly causes, suffers, or permits an agent, superintendent, manager, or employee in his employ to commit a violation of section 1050 . . . or who fails to take all reasonable steps within his power to prevent such violation is guilty of a misdemeanor."
Labor Code section 1054 provides, in part: "[A]ny person or agent or officer thereof, who violates any provision of sections 1050 to 1052, inclusive, is liable to the party aggrieved, in a civil action, for treble damages. Such civil action may be brought by such aggrieved person or his assigns, or successors in interest, without first establishing any criminal liability under this article."
Labor Code section 1053 provides: "Nothing in this chapter shall prevent an employer or an agent, employee, superintendent or manager thereof from furnishing, upon special request therefor, a truthful statement concerning the reason for the discharge of an employee or why an employee voluntarily left the service of the employer. If such statement furnishes any mark, sign, or other means conveying information different from that expressed by words therein, such fact, or the fact that such statement or other means of furnishing information was given without a special request therefor is prima facie evidence of a violation of sections 1050 to 1053."
David A. Mallen
David A. Mallen offers answers on Avvo for general information only. This offer of free, general answers is not intended to create an attorney-client relationship. If you need specific advice regarding your legal question, you should consult an attorney confidentially. Many experienced California labor and employment attorneys, including David A. Mallen offer no-risk legal consultations to employers and employees at no charge. David A. Mallen is licensed to practice law before all state and federal courts in California, as well as the California Labor Commissioner and the California Unemployment Insurance Appeals Board. Failure to take legal action within the time periods prescribed by law could result in the loss of important legal rights and remedies.