“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].