Can a former employer give details about why you were fired?
One concern many employees have during the job hunt is whether a former employer will disclose details of a termination to a prospective new employer. If an employer terminated an employee without cause, the former employer cannot tell or imply to the new employer that the employee was fired for cause, as doing so would be considered defamation.
What are an employer’s rights?
Legally, your former employer can disclose factual information about your employment and termination. However, they must be careful not to make false or misleading statements.
When does it become defamation?
In the context of employment law, it is defamatory to say or suggest that an employee has been guilty of dishonest or disreputable conduct. However, employers have a defence against defamation if what they are saying or implying about someone is valid. If an employer fires someone for theft, for example, then the employer has an absolute defence to claims of defamation brought by the employee if the employee stole something and was fired for it.
The ”Truth” is a defense to defamation.
Accordingly, if an employer claims an employee was fired for serious misconduct, such as theft, but that is false, misleading, or impossible to prove, the employer has no defence against defamation and would be liable to pay the employee damages. A more common scenario is when an employer suspects an employee of wrongdoing but cannot prove it or fails to make a reasonable attempt to do so. The employer then fires the employee for cause and informs future employers about the issue. Doing so could be defamation because the employer cannot rely on the “truth” defamation defence. In short, if an employer can prove the reason for your termination is true, they have a strong defense against a defamation claim.
What is misconduct was only suspected?
If an employer suspects an employee did something very wrong but does not investigate it properly, it is not “truthful” to say that the employee was guilty of the wrongdoing. Therefore, it is defamation if the employer goes around telling others that the employee was guilty of the alleged wrongdoing. The employer will have defamed the employee’s character, and the employee will be able to sue successfully because the employer will have no defence.
To summarize, unless the former employer is lying about your reason for termination (i.e., defaming you somehow), it can say whatever it wants about your exit. The employer can lawfully inform your current colleagues and future employers that it has terminated your employment.
How does a new employer find out?
However, most employers will never know that an employee was terminated or why. Typically, an employer will only find out about a termination if the employee volunteers a reference from their old employer to their new employer, which will inform them that their employment was terminated. To avoid this issue, employees should refrain from using references that will state that the employee’s employment was terminated.
Essentially, employers can disclose any information about an employee’s termination to others, provided it is true. Employers cannot lie about the reason for termination or imply that someone was terminated for serious misconduct without first investigating whether the misconduct actually occurred. Thus, if an employer ever wants to tell a third party anything that could hurt an employee’s character, it had better make sure it is true and even collect evidence to prove it is true.
What should you do?
If you are in the process of finding a new role but are concerned about what a former employer may say about you, please get in touch with one of the employment lawyers at Whitten and Lublin to discuss further. Schedule a consultation by contacting us online or call 416 640-2667.
FAQ’s
Can my former employer legally disclose the reason for my termination?
Yes, a former employer can legally disclose the reason for your termination, provided that the information is true and they can prove it. The key issue is defamation. If they terminated you for cause and are able to prove it, the employer is protected from a defamation lawsuit.
What is defamation in the context of a former employer’s statements?
Defamation happens when a former employer makes a false or misleading statement about you that harms your reputation. For example, if an employer claims you were fired for theft, but that claim is untrue, it is considered defamation.
What if the employer suspected misconduct but couldn’t prove it?
If an employer fires you for serious misconduct based on a suspicion but does not properly investigate the claim, their defense against a defamation lawsuit is weak. They cannot rely on the “truth” as a defense if they have not made a reasonable attempt to verify the information. Spreading unproven accusations could be considered defamatory.
What information can a new employer realistically get from a past employer?
In practice, most employers typically only confirm your dates of employment and position held. If a former employer terminated you, a new employer is more likely to find out if you use someone from that company as a reference.
How can I protect myself if I was wrongfully terminated?
If you believe your former employer has made false statements about your termination, you should seek legal advice. An employment lawyer can help you understand your rights and determine if you have a case for defamation. Whitten & Lublin are experienced employment lawyers in wrongful terminations, who can help you with your case.
Author – Jordan Cantor
