I applied for a company. I was in the process of being hired for a position which would start a month later. They did a background search. They sent me a copy of the report.
Report stated I had a criminal record. I told the company I had no criminal record before they did the search. The company has been ignoring all my calls, emails, and voicemail msgs. I had found out from an aquaintance that they didnt hire me because of the report. Now I am unemployed, having to waste all the time and weeks for the application process. Just to be ignored, given false information on a report. I had found out from the circuit court clerks that people who are hired to do the background search have to come in and look through files. They had purposely added by hand false information.
In general to show defamation, a person must show that the information was false, that it was published to a third party, that there was harm on account of the release of this false information, and that the statement was made without adequate research into the truth or falsity of the statement.
However, employers have a qualified privilege defense regarding alleged defamation claims brought by employees; an employer is free to make a statement about the activities of its employees arising out of their employment and concerning matters of common business interest -- even if the employer is proved wrong about his or her suspicion about the employee's alleged illegal conduct. The employee may defeat this protection by proving that the employer made the statement out of actual malice towards the employee. To show malice, the employee must establish that the employer knew that the statement was false or with acted with reckless disregard of its truth or falsity.
Also, the employer's qualified privilege defense does not shield him or her from per se defamation. This form of defamation deals with bold statements that on their face are false and defamatory, such as the the employee is a thief (or has engaged in other criminal conduct), has a loathsome disease, has an immoral character among others. It is unnecessary for an employee who establishes a per se form of defamation to prove damages.
If the reason for the company not hiring you was because your previous employer falsely asserted by inserting a document in your personnel file that you had criminal record, you should consult an attorney skilled in defamation. You might want to contact www.mwela.org and www.nela.org; these organizations are composed of plaintiff side employment law attorneys. You might also contact your local bar referral service.
This is meant as general legal information and is not to be construed as legal advice in an attorney client relationship.
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