Under Texas law, a defamation action requires that the plaintiff prove the defendant: (1) published a statement; (2) that was defamatory concerning the plaintiff; (3) while acting with either negligence (if the matter is of public concern) or actual malice (if the matter is of private concern) regarding the truth of the statement. For a job applicant, a false statement made by a former employer to a prospective employer that damages the applicant's reputation could be grounds for a defamation claim.
Slander involves oral defamatory statements. In the context of employment, if a former employer makes an oral statement to a prospective employer that is false and injurious to the reputation of the job applicant, the former employer could be liable for slander. The applicant would need to prove that the statement was false, made to a third party, and caused reputational damage.
Certain communications are privileged and thus protected from defamation claims if they occur in judicial or official proceedings. However, this privilege does not generally extend to communications between former and prospective employers regarding a job applicant. Therefore, a former employer is not protected by this privilege when providing a reference or information to a prospective employer, unless the communication falls within another specific privileged category.
If a job applicant has given consent to a former employer to share information with prospective employers, this consent may serve as a defense against a defamation claim. The former employer must show that the applicant consented to the release of the information and that the statements made were within the scope of the consent provided.
Texas law provides immunity to employers who disclose information about the job performance, qualifications, or conduct of a current or former employee to a prospective employer. The former employer must not act with malice or disclose information they know to be false. This immunity is designed to encourage employers to provide honest feedback without fear of legal repercussions, but it does not protect employers who make false or malicious statements.
The Fair Credit Reporting Act (FCRA) requires employers to obtain a job applicant's consent before seeking an applicant's credit report or other consumer report for employment purposes. If the report includes information from the applicant's current or former employer, the employer must follow specific procedures. These include providing the applicant with a notice that a report may be used, obtaining prior written consent, and giving the applicant a copy of the report and a summary of their rights under the FCRA before taking any adverse action based on the report. Failure to comply with FCRA requirements can result in legal liability for the employer.
Defamation laws at the federal level are not as codified as state laws, but they establish the basic principles that apply to defamation, including slander and libel. Defamation involves making a false statement of fact to a third party that harms another's reputation. In the employment context, if a former employer makes a false statement about an applicant that is communicated to a prospective employer and causes harm, such as loss of a job opportunity, the former employer could be liable for defamation. The plaintiff must prove that the statement was false, made with at least negligence regarding its truth, communicated to others, and caused harm. Opinions are generally not actionable as defamation.
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees or applicants on the basis of race, color, religion, sex, or national origin. If an employee is terminated or otherwise discriminated against by their current employer for seeking new employment, and the action is based on one of these protected characteristics, it could constitute unlawful employment discrimination. For example, if an employer only terminates female employees for job searching but not male employees, this could be a violation of Title VII.
The National Labor Relations Act (NLRA) protects the rights of employees to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. If an employee discusses job searching with co-workers or seeks to change jobs as part of a collective effort to improve working conditions, such activities may be protected under the NLRA. An employer who retaliates against an employee for engaging in these protected activities could be found in violation of the NLRA.