Please ensure Javascript is enabled for purposes of website accessibility
Home / Columns and Features / Employee of new company ‘horrified’ by former boss’s behavior

Employee of new company ‘horrified’ by former boss’s behavior

“I started a new job recently that I’m very excited about, and I am working hard at it. I will admit that I didn’t leave my last employer on the best of terms. But recently, I was horrified to find out that my former employer has been badmouthing me to others in my professional network. He has done this even to the point of calling my new boss to complain about things I had allegedly done badly in my last job. That put me in a position to apologize to my new boss, who did not want to receive a call like that. What are my rights? And when does this become harassment? And what can/should I do about it? All I want is to be left alone.”

So the questions are probably swirling around in your mind: “Why would he do this? Will this hurt your current situation in your new job? What else is the former employer going to do?”Talk about unprofessional behavior! What makes this situation difficult to understand is what provoked this behavior? It is not as though you were asking the former employer for a reference or anything like that.

Theoretically you would have a legal remedy under defamation law, but we have limited information about what was said and in addition, there are a number of caveats to defamation that would make it difficult to prove.

“In order for it to constitute defamation, the statement must be false,” says Sharon Stiller, partner and director of the Employment Law Practice at Abrams, Fensterman, Fensterman, Eisman, Formato Ferrara & Wolf LLP. “Second, pure opinions are not defamatory, so if the employer said something like, ‘In my opinion, she’s not the best employee,’ that might be protected opinion.”

Steve Modica, attorney and owner of the Modica Law Firm in Rochester, agrees: “In my experience, employers often offer subjective statements and opinions about a former employee that are not legally actionable as defamation because they are not statements of fact, such as ‘the former employee was not a good team player.’ Even if the employer made a statement of fact that was false, they are immune from liability if they can show they made the statement in good faith and without malice.”

The concept of a protected opinion is very complicated, Stiller says. In a recent case involving the treatment of a patient, the former executive health director/chief administrative officer of Monroe Community Hospital alleged that two defendants made defamatory comments about him.

“The court refused to dismiss the claim, finding that at the early stage of the litigation, it could not say as a matter of law that the statements were pure opinion,” she says. “The court reiterated that ‘What differentiates an actionable mixed opinion from a privileged, pure opinion, is whether the speaker knows facts, unknown to the audience, which support (the speaker’s opinion) and are detrimental to the person being discussed.’”

Another legal concept that could play into this situation is privilege, Stiller says.

“Certain people who have a right to know information are covered by a qualified privilege,” she says, citing another local case involving statements by an administrative assistant that an applicant for a particular position was a child molester. “In that case, the organization demonstrated a qualified privilege by showing that alleged defamatory statements were made between members of the organization in connection with the plaintiff’s application for membership in the organization.”

But in your situation, it would be difficult to argue that the former employer was covered by a privilege, “since there does not appear to be any need for the former employer to transmit information to the new employer,” Stiller says.

Even with the complexities of the law, the incidence of defamation by former employers is growing, wrote attorney Alan Sklover in a 2007 blog post.

“While most business people act professionally, the incidence of defamation by former employers seems to be a growing problem,” he wrote. “In our practice, it is seen more and more each year. Perhaps it is the increasingly competitive nature of business. Perhaps it is the pressures some people feel to win “at all costs.”

Beyond the defamation issue, what you have outlined probably doesn’t meet the standard for criminal harassment, Modica noted. And as you have described it, this behavior also doesn’t seem to involve you belonging to a protected class such as race, religion, gender identity, disability, national origin, age, marital or other class, which might have opened up other actions.

What to do? One option, Stiller says, might be to hire a lawyer to send a “cease and desist” letter to the former employer. “But if there is no impact on the employee’s reputation, it may not be worth it to bring a defamation action against the former employer or to threaten to do so.”

And since truth is a defense, it would be important to know what is being said and whether the statements “are provably false,” she says.

Another idea, Modica says, is to consider using a reference-checking service that would contact your former employer, pretend to be a prospective employer, and record what is said.

“New York is a one-party consent state when it comes to taping phone calls, that is, taping is not illegal so long as one person consents to the taping.  This might clarify exactly what the former employer is saying,” he says.

Or you might want to contact the former employer and confront them about the negative statements. If this violates a company policy on handling references of former employees, then you can complain to human resources, he says. There is some risk in doing that, however.

“Contacting the former employer may make them less inclined to make negative statements in the future. However, it could have exactly the opposite effect,” Modica says.

You can try contacting him over the phone or by email and then “increase the hostility as appropriate,” Modica says. “You can say something like ‘I consulted with a lawyer. However, all I want you to do is stop. My goal is not litigation.’”

Managers at Work is a monthly column exploring the issues and challenges facing managers. Contact Kathleen Driscoll with questions or comments by phone at (585)249-9295 or by e-mail at [email protected].

x

Check Also

Tricks to sustaining the family trade: Succession planning scenarios to expect (access required)

We all know how a business can feel like our child. You spend many years — even decades — nurturing ...

Succession plans critical for survival of family-owned businesses (access required)

While family-owned businesses are commonplace in the United States, those that are multigenerational remain rare gems. According to Cornell University’s ...

What’s so great about the 2022 Great Places to Work? (access required)

It’s my favorite time of year: Great Place to Work just announced the 25th Fortune 100 Best Companies to Work ...

Loyalty programs – what you should know about compliance with the CPPA (access required)

From the straightforward “buy 9 smoothies, get 1 free,” to sophisticated frequent flyer programs, loyalty programs are a staple in ...

Are cover letters really necessary? Hiring professionals have differing opinions (access required)

“I’m a hiring manager at a local company looking to fill several positions. I’ve noticed that about two-thirds of our ...

Investment acumen or inside information? (access required)

If you had known, in early 2020, that you might be working from home during a multi-year, global pandemic, would ...

Opining on Dick Vitale’s courage, more Bills nicknames, stadium names

By the time he finished delivering a motivational speech that would have made Knute Rockne proud, Dick Vitale looked like ...

The importance of female mentorship, leadership, and innovation in banking (access required)

In my 10 years at Tompkins and 35 cumulative years in the banking field, I’ve witnessed the industry undergo several ...

How not to set policy to reduce the price of gasoline (access required)

High gas prices in the U.S. cause a lot of pain for Americans every time they take their vehicles to ...

Highland Hospital Gala (access required)

This year’s casino-themed Highland Hospital Gala raised its second highest amount ever, with more than $650,000 gross net income thanks ...

Inflation: How did we get here and what can be done about it? (access required)

If you’re in your 50s - o.k. early 50s - you probably remember a time when a gallon of gas ...

Reflections on pediatrics, the pandemic, and the Golden Circle (access required)

Imagine this: Your business has been open for only five months and is doing really well. Revenue is higher than ...

Will 2022 be the year of the vacation home? (access required)

With some COVID-19 restrictions relaxing and others already lifted, the smell of tourism is in the air. Demand for leisure ...

Transition services valuable for aging population (access required)

What do you need to stay safe in your family home, even if your home is getting to be too ...

Elder transition planning: Family mediation for older adults & their loved ones (access required)

The journey of aging is rarely a smooth one. As older adults and their families face emotional, financial and health ...

Senior living communities consider how to be more diverse, inclusive, accessible (access required)

The nation’s senior population is the largest and most diverse in history, according to the most recent census data from ...

Why is inflation so scary for my retirement plan? (access required)

Over the past decade, investors experienced a best-case scenario of relatively low inflation and strong investment returns from both stocks ...

A thoroughbred racehorse whose impact was not lost on us

It seemed like a good deal at the time – a rattletrap Ford van with more than 100,000 miles on ...

Ensuring your financial plan can withstand negative conditions  (access required)

Financial plans differ based on individuals’ incomes, future goals, age and tolerance for risk, but often unconsidered in those plans ...

Boomerang employees: tips on how to welcome team members home (access required)

Every manager at every level has experienced it — that awful feeling in the pit of your stomach when one ...

Spring cleaning: Considering program sustainability (access required)

There has never been a better time to consider the sustainability of your program activities and take action to address ...

Financial advisors can guide through tough times (access required)

With the country facing rising inflation and interest rates, as well as the lingering COVID-19 pandemic and the war in ...

Are you discriminating against employees with caregiving responsibilities? (access required)

As the world enters year three of the COVID-19 pandemic, the Equal Employment Opportunity Commission (“EEOC”) has issued a warning ...

Rochester accelerates its pace to become top tech hub in America (access required)

Rochester is on its way to becoming a national hub for technology innovation. Experts predict that it has the highest ...

A simple game for investors: How would you play? (access required)

Some years ago, financial author and advisor, Bill Schultheis, devised a simple game to illustrate the difficulty faced by investors ...

You need to improve your technology, but where do you start? (access required)

Technology is advancing at warp speed and certainly some innovations could benefit you and your company, but it’s easy to ...

Innovation advancements on display as Rochester continues to grow its technology ecosystem (access required)

From LIDROTEC, a company with patent-pending wafer dicing laser machines for the semiconductor industry to Stratio, which provides artificial intelligence ...

Milo the Dog has had a golden impact on Red Wings baseball, community

They had trained together five days a week for nearly six months in the backyard solitude of Josh Snyder’s rural ...

M&A middle-market activity: What businesses need to know (access required)

 Understanding the ins and outs, trends and activities going on in M&A markets can help businesses make informed decisions including ...

5 things to consider before deciding to work for yourself (access required)

When people ask me what I do, now that I’m out of television, I simply say, “I have my own ...

M&A lawyers keep busy despite pandemic barriers (access required)

2021 was a record-breaking year globally and nationally for mergers (combining two separate businesses into one new legal entity) and ...

Ending violent crime requires building trust between police, community (access required)

Rochester has recently been the recipient of many state, federal and private investments that create a true path for transformational ...

Former UR assistant Jay Wright continues working his hoops magic

Mike Neer likes to joke that he doesn’t get enough credit for helping Jay Wright become the best-dressed coach in ...

Four ways to prepare your business for the future of digital payments (access required)

Digital transformation continues to sweep the country — especially as more companies and their customers embrace digital payment technologies.Here are ...

Managing Our Manufacturing Plants in 2022 (access required)

There have been dramatic shifts in both the needs and the realities of manufacturing the United States over the past ...

“Rounding Errors” Can Add Up Quickly (access required)

It’s time to talk about time. For many employees, their lunch break is a time when they can step away ...

Just In Time production method becoming obsolete with supply chain issues (access required)

Just In Time (JIT) is a production method pioneered in the 1930s by Toyota Motor Corporation as a means to ...

Rochester firms embrace 3D printing for multiple purposes (access required)

Firms are using 3D printing to create unique tools, parts and other objects right here in Rochester, allowing for new ...

From mentee to mentor: the benefits mentorship provides for women in business (access required)

March marks Women’s History Month. It is a time to honor the strong, brave women who have broken down barriers, ...

Working across the ages: multigenerational teams offer multiple benefits (access required)

Quick: How long is the average career? If you guessed 40 years, you would’ve been right a few years ago. ...

Energy, dedication drive entrepreneurs at any age (access required)

Younger women who grew up with technology and worked in the gig economy may be more comfortable with the pace ...

Opining on Brandon Beane, SU hoops, a poor investment, baseball’s return

If you pressed me to rank the most indispensable Buffalo Bills of this glorious era, I’d go with quarterback Josh ...

Topics that don’t focus on COVID-19 for nonprofit leaders (access required)

For obvious reasons, COVID-19-19 and the many elements of disruption it has caused continue to dominate conversation at organizations of ...

March worldwide water, climate events are close to home (access required)

March marks two worldwide awareness events for the environment: World Water Day and Earth Hour. In Rochester, New York, these ...

Revisiting Art Schlichter’s sad tale of gambling addiction

Monday’s seismic news that Atlanta Falcons star receiver Calvin Ridley had been suspended for the 2022 season for betting on ...

Mentoring is an art passed from one generation to the next (access required)

Ahhh, what to say about the important art of mentoring? It is certainly an art and, in preparation for this ...

Protect intellectual property from the start (access required)

When it comes to intellectual property (IP), the old English idiom “penny wise and pound foolish” never goes out of ...

A loving team helped Chris Lillis ascend to Winter Olympic gold

Bernie Lillis points with pride to a framed photograph on the mantelpiece above the fireplace of his Fairport home. There ...

Three takeaways from Super Bowl ads to apply to marketing (access required)

Super Bowl ads deliver on a few recurring themes every year, and this year was no different. Whether it’s nostalgia ...

I Bonds: A rare bright spot for the income investor (access required)

Investors have a natural affinity for income-producing investments. A steady stream of investment income is comforting even if it is ...

What AG report on ‘credential stuffing’ hacks mean for your business (access required)

In January, New York Attorney General Letitia James released a report summarizing the findings of a broad investigation into so-called ...

Data privacy and security concerns with rise of online betting, gaming (access required)

As of January 8, 2022, New York State joined the ranks of more than a dozen states that have legalized ...

Potential headwinds are coming — what this means for your business (access required)

An abundance of liquidity and market exuberance in the world’s recovery from COVID-19 have made this a promising time for ...

Rochester’s Roland Williams hoping his Rams do it again

Eric Weddle is one of those feel-good stories that Rochester tight-end-turned-broadcaster Roland Williams has followed closely in recent weeks. Late ...

Excell Partners plant seeds for cash-strapped startups to grow (access required)

Excell Partners’ 2021 technology ventures’ report shows the ever-growing impact the venture capital firm is having on the Finger Lakes ...

West Herr buys Canandaigua Honda dealership (access required)

West Herr Automotive Group has added a ninth deal in the greater Rochester area with the purchase of Victory Honda ...

KORE executives cut ribbon at new operational headquarters in Pittsford   (access required)

KORE celebrated the ribbon cutting of its new location in Pittsford on Tuesday. The move was due to KORE’s need for ...