A Former Employer Defamed You in a Reference to a New Employer? Here's What to Do
One of the most frustrating situations in the job market: you are advancing toward a new position, but the moment the new employer contacts your former employer for a reference — negative, sometimes false, information is given about you, costing you the job. Is a former employer allowed to say whatever they want? This guide explains when a negative reference from an employer constitutes defamation, the defenses that may be available to the employer, and how to act if defamation cost you a position.
1. When a Negative Reference Crosses Into Defamation
A former employer may give a candid, objective assessment of a former employee — that is legitimate conduct. The problem begins when the employer conveys false, disgracing factual information: a claim that the employee stole, was dismissed for dishonesty, or failed in a way that did not occur in reality. Conveying such false information to a potential employer constitutes 'publication' (the information reached a third party) and may be defamation. The distinction: a candid, well-founded assessment ('struggled to meet deadlines') versus a false factual assertion ('he stole from the register'). The harm here is especially severe because it directly damages livelihood and employment prospects.
2. The Employer's Good-Faith Defense
The employer may have a good-faith defense (Section 15 of the Act): conveying information about a former employee, in response to an inquiry from a potential employer, may be regarded as fulfilling a moral or social duty or expressing an opinion on a matter of legitimate interest. But the defense is conditioned on good faith — conveying information the employer knew to be false, or acting out of vindictiveness and malice, will not enjoy the defense. Conveying information without a reasonable basis, or beyond what was necessary, may also negate it. The burden of proving good faith is on the employer, so it is important to document exactly what was conveyed and in what circumstances.
3. How to Prove What Was Conveyed
The central challenge in these cases is evidentiary: what exactly was said in the conversation between the former employer and the new one? Usually it is a phone call with no record. Courses of action: if the new employer is willing to share what they were told (for example, in writing or as a witness), that is key evidence. Sometimes the defamation is documented in an email or message. If you were rejected from a position immediately after references were checked, that is circumstantial evidence. Document everything: the time of the rejection, the referee's name, and everything you were told. An evidentiary foundation is the key in these cases.
4. What to Do — and Which Remedies
If a former employer defamed you and cost you a position: document the publication and the harm (the rejection, the lost income). Consider a warning letter to the former employer detailing the claim and demanding correction and apology. In appropriate cases you can sue for defamation — including compensation without proof of damage, and compensation for proven financial loss (the lost job and income). Here the financial loss can be significant. It is important to act quickly — both because of the short limitation period and to document the evidence while it is fresh.
Checklist
- Document the rejection and its timing (circumstantial evidence)
- Find out whether the new employer will share what was conveyed
- Gather every record — emails, messages, referee names
- Distinguish a permitted candid assessment from a false factual assertion
- Consider a warning letter demanding correction and apology
- Act quickly — short limitation and fresh evidence
Common Pitfalls
- Assuming a former employer 'may say whatever they want' — not when it is false
- Failing to document the rejection as circumstantial evidence of harm
- Not trying to obtain from the new employer what was conveyed
- Ignoring the option to claim financial loss (the lost job)
- Waiting, which loses evidence and approaches the limitation period
שאלות ותשובות
May a former employer give negative information about me?
A candid, objective assessment — yes, and sometimes it is covered by the good-faith defense. But conveying false, disgracing factual information (for example that you stole) is not protected and may be defamation.
How do I prove what was said in the reference call?
That is the central challenge. Possible evidence: the new employer willing to share what was conveyed, written records, and a rejection from the position immediately after references were checked (circumstantial evidence).
Which remedies can I obtain?
Compensation without proof of damage, and compensation for proven financial loss — here the lost job and income can be significant. Alongside this, a demand for correction and apology.
When will the employer not have a good-faith defense?
When they conveyed information they knew to be false, acted out of vindictiveness and malice, or conveyed information without a reasonable basis and beyond what was necessary. The burden of proving good faith is on them.