Can my current employer give a potential employer a bad reference about me?

ATTORNEY ANSWER:

The short answer to this question is yes, your employer can say whatever he or she likes about you and your work performance to a potential new employer who might call for a reference. As long as the information provided is true – and even, to a large degree, if it isn’t – the law won’t provide you any redress if the boss undermines your prospects for moving on.
Having said this, it’s hard to imagine a situation where your employer might even be called upon to recommend you to its successor. If you are currently employed but looking to move on for some reason or other, he pragmatic tact is to tell interviewers about your situation and instruct that they do not contact your current boss. This will, of course, beget questions about why you are looking to leave, but that sort of inquiry will normally present far fewer issues for you than will your current employer’s receipt of a call informing him/her you want to leave the job. You can always permit your new company to contact your old one after you have a job offer in hand and solely for the purpose of confirming your employment history and job title. This sort of request will not signal problems to any reasonable prospective employer, and any who might be concerned about it may not be worth working for anyway.

If you already have or do in the future get yourself into trouble in this area, the remedial options will be minimal. If your employer provides false and damaging information about you (regardless whether you are still employed), you might have a claim for defamation. This cause of action, however, is difficult to prosecute. The courts of the Commonwealth are often slow, and ‘justice’ can be hard to come by. Any lawsuit will require a capable attorney and most will engender substantial expenses. For these reasons, lawsuits for defamation, even if meritorious, often make little practical sense in the employment context. Unless you can somehow prove that your boss’s bad reference is motivated by race, gender or some other form of illegal discrimination, you’re not likely to have any viable recourse against a bad job reference.

Attorney Jack Merrill is a Boston, MA employment lawyer providing legal services to employees, employers and businesses throughout the Boston metro west and Worcester County region including Ashland, Dedham, Framingham, Franklin, Hopkinton, Maynard, Marlborough, Milford, Natick, Needham, Newton, Shrewsbury, Sudbury, Waltham, and Worcester, Massachusetts.