Can An Ex-Employer Say Why You Were Fired?

A common worry that many people have after leaving a job is “can an employer say why I was fired?” The short answer is basically as long as what they are saying is true, your former employer can say why you were fired.

The First Amendment says:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Courts in the US have construed the rights under the first amendment broadly as to lean towards preserving rather than restricting speech. However, the rights under the first amendment are not absolute. Courts have upheld laws that serve to effectively restrict speech. One of these types of laws is called defamation.

Defamation is an old common law claim. Defamation is where a person communicates a false statement to one person about another third-person that creates a negative or false impression about that third-person. There are two forms of defamation, libel and slander. Libel is where the communication is made through written or printed words, pictures, or in any form other than by spoken words or gestures. Slander is where the false statements are communicated by spoken words or gestures.

Different standards apply to public and private figures. Private figures need only show that the defendant was negligent with respect to the truth or falsity of the statement, writing, etc. Public officials and public figures typically must show that the defendant acted with actual malice. This means they must show the defendant knew that the statement was false, but the defendant published it anyway. Most day to day people are probably considered private figures, but that can change. If you were involved in a newsworthy incident leading to your termination it might make you a public figure.

Defamation laws differ from state to state.  In most states there are what is called defamation per se statutes. This means that for certain types of defamatory statements, damages are presumed and do not have to be proven. Defamation per se is for statements that the community has deemed to be so obviously harmful to the reputation of the person falsely accused that the person defamed does not have to be show any as to specifics how the false statement harmed them. Under Georgia defamation law, for instance, a statement is defamatory per se if it:

  • charges another person with a crime punishable by law;
  • charges another person “with having some contagious disorder or with being guilty of some debasing act which may exclude him from society;” or
  • refers to the trade, office, or profession of another person, and is calculated to injure him.

OCGA 51-5-4

False statements about the reason for termination, or false statements about work performance, or false statements about workplace incidents may be considered defamatory per se.

An important thing to know about defamation is that not every false statement is actionable. In line with the concept of expansive First Amendment protections, statements of pure opinion can not be defamatory. For example, Betty Boss saying “Suzy was fired because she was such a jerk”, may not be defamatory even if it is false. Suzy’s jerkiness might be seen as Betty’s opinion. Saying “Suzy was fired for stealing $100 from a cash register on July 30” is a statement of fact, and would probably be actionable if false. One of the major tests to distinguish whether a statement is fact or opinion is whether the statement can be proved true or false in a court of law. Mixed statements of fact and opinion may also be defamatory.

As always, talk to an attorney in your jurisdiction. Attorney Benjamin Kandy is barred in the State of Georgia and is more than happy to speak with you about employment issues like defamation or wrongful termination.

This is not legal advice. This page does not create an attorney-client relationship between the reader and Attorney Benjamin Kandy.

 

One thought on “Can An Ex-Employer Say Why You Were Fired?

  1. No wonder my CHRC/OHRT fiinlg is bogged down, they’re chasing Casper the unfriendly Ghost that trolls web site to incite reaction and then file a HRC complaint. I had a mental collapse from a work related Stress issue and thus lead to depression and treatment to recover to a near normal life. The short version is that a screw-up in documents led to my return to Work where I was fired while still on LTD support and Medication and after 20 years service i only got a 2-week notice and a number to call for a severance package. The problem got worse and now I’m caught in a HRC vortex and turf wars for who I go to for help based on my employer’s status in the Province or Canada’s federal Laws.CHRC took almost 2 months just find out I have a Ontario HRC issue to file, but now I face a different layer of public workers wanting to tailor their work hours as if you only have Human Right from 9-5 IF they answer the phone. Even the Legal-Aid Hotline is closed during Lunch or only accessible on Thursdays from 2-6 pm. How the hell does a worker with a Human Rights issue about employment manage to call in while they are at work, and once it’s lunch time the OHRC Legal Aid office is closed for any opinion on your case for Aid in the OHRT support. My Rights aren’t granted from Lawyers, or Judges in a good mood that day because in the past we have seen Lawyers and Judges defend Slavery until it was abolished. Thank you Mr.Warman for your War-on-Man crusade for Tax-Free incomes as I get closer to being evicted from bankruptcy since I am locked in a case with no LTD coverage or a Job while the HRC’s drag out my file when all I want is my due Severance and LTD settlement from a error that also caused a monthly Shortfall in support as listed in my LTD package I found in 2007 . I try to embrace the great comfort Mr.W once I’m homeless and off med’s sleeping in a back alley and knowing YOUR rights were defended just from being Offended and this is the price I’ll pay for living in a Just-Society. Again Thank you Mr.War-on-man , you’re about to make one of them homeless just in time for a Toronto winter IF the OHRT doesn’t drag this out any longer. I even agree to mediation to spped it up because my Rights mean Squat if I’m not alive to exercise them or the money to defend them.

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