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Employer References and Defamation in California

Roseville, CA |

Who has the burden of proof in an employment defamation case? does the plaintiff have to prove the statement was false or does the defendant have to prove the statement was true?

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Attorney answers 3


The plaintiff has the burden of proving each element of the cause of action. Because falsity is an element of the cause of action, the plaintiff has the burden of proving it.


I gather from your question heading that you believe your former employer is spreading lies about you to future employers. If that is the type of litigation you are considering, know that you have a steep uphill battle. As Mr. Eschen stated, you will have the burden to prove the employer's statements were false. You will also have to prove what those statements were and to whom the statements were communicated. Also, the employer making the statements may have a privilege (legal protection) for making those statements, depending on the circumstances. And if the employer's representative made statements that were his or her opinion, then it is not defamation.

So if the employer's rep told a prospective employer "It is my belief that Angel Applicant stole $250 from the cash register on February 3, 2012 when no one was looking, and used that money to buy drugs, and got arrested for buying drugs and spent some time in prison," that would NOT be defamation, even though it is very specific, simply because the speaker stated it was his or her opinion.

Defamation can be libel (written) or slander (oral). Each state has its own legal definition. Generally, defamation is a false and unprivileged statement which exposes a person to hatred, contempt, ridicule or injury, or which causes the person to be shunned or avoided, or which has a tendency to injure the person in his or her occupation. Some kinds of defamation require the plaintiff to prove actual harm. Other kinds of defamation constitute defamation per se, which means harm is assumed due to the nature of the defamation.

Not a good situation, but the law doesn't offer anything close to the protection people believe it will. *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***


The Plaintiff has the burden of proof in a defamation claim against a Defendant.

The above is general information only and is not legal advice. The information provided does not form an attorney-client relationship, and should not be relied upon to take or refrain from taking any action. I am not your attorney until we sign a retainer agreement. You should seek the advice of competent counsel before taking any action related to your inquiry.