Can You Sue for a Bad Employment Reference?

By Corey Hanrahan

The short answer is, “Probably not.” While most employer’s have a policy regarding the amount of information disclosed to the prospective employer of a former employee (i.e. dates of employment, titles held, etc.), there is no legal prohibition on providing more information. 

“…in many cases a former, or current, employer’s response to an inquiry from a potential employer is privileged under California law…”

In fact, not only is there no legal prohibition on it, but in many cases a former, or current, employer’s response to an inquiry from a potential employer is privileged under California law. California Civil Code section 47(c) provides that a current or former employer’s answer about whether or not the employer would rehire a current or former employee is privileged unless the employee can show that the response was done maliciously. 

An employee claiming that the privilege should not apply to a communication from a current or former employer due to a claim of malice has the burden of establishing that the statement was made maliciously. This can be difficult, but not impossible, to prove. California courts have previously held that the applicable standard for showing malice is these situations is the standard applied to “private” matters (which requires a showing by a “preponderance of the evidence,” as opposed to a higher standard of “clear and convincing evidence”). 

A showing of malice requires proving either of the following: (1) a motive by hatred or ill-will toward the employee; or (2) a lack of reasonable grounds for belief in the statement, which shows a reckless disregard of the employee’s rights. However, it is important to note, California court’s have held that “mere negligence” itself (i.e. oversight or unintentional errors) are insufficient to establish malice.