If an employer or former employer makes false and damaging statements about you, you might have a legal claim for defamation.
However, it can be very difficult to win a defamation case: Massachusetts law gives employers a lot of leeway as to what they may say; defamation can be hard to prove; defamation lawsuits can be expensive; and it can be difficult to find affordable counsel for these cases.
It is a common misunderstanding that employers are prohibited from providing negative references or saying anything unfavorable about employees or former employees. It is true that many employers—as a matter of company policy—will provide limited information in response to a reference request (for example, just dates of employment). Employers that have such policies do so largely as a preventive strategy--to stay out of the legal “gray area” of defamation law.
Whether an employee, or former employee, might have a claim for defamation depends largely on the answers to many questions: For example: What exactly was said? To whom? By whom? For what purpose? Was the statement an opinion or fact? If it was a statement of fact, was it true or false? If false, did the person making the statement know it was false? What damage did it cause? Can you prove this?
Following are some (general and oversimplified) highlights of Massachusetts defamation law, as it applies in the workplace:
Defamation is the publication, without privilege to do so, of a false statement of fact that causes damages to the plaintiff’s (employee’s, or former employee’s) reputation. When the statement is made orally, it’s called slander; a written statement is called libel.
“Publication” means the statement is made to someone other than the plaintiff.
Employers generally have a “conditional privilege” when assessing an employee’s job performance and when providing references. An employer making statements that are conditionally privileged is protected from a defamation claim unless the employer abuses that privilege. Such conditional privilege might be lost if the employer abuses it by knowingly or recklessly providing false information, by acting out of malice, or by excessive publication. It is up to the plaintiff to present specific facts showing the abuse of the privilege.
A more complete explanation of defamation law can get complicated, so we recommend that you consult an attorney to do a more thorough evaluation of your specific situation. Legal aid organizations generally do not handle these cases, so you will probably need to consult a law firm.
Fair Employment Project, Inc. | 777 Concord Avenue, Suite 302 | Cambridge, MA 02138 | 617.902.0192 | email@example.com