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"The burden of proof rests upon the one making the claim. No jury is just going to believe you without any proof. You can say anything you'd like, but promoting yourself to some infallible position won't work in court. So before you would slander someone, you have to have proof. There are too many malicious people out there, don't you think?"
Um no, the burden would be on the plaintiff in a slander suit. The plaintiff would have to prove that I as the former employer intentionally said something factually untrue about her, AND that she suffered damages from it. A jury wouldn't have to be asked to evaluate my "proof" if all I did was state opinions.
"So before you would slander someone, you have to have proof."
This makes absolutely no sense at all.
Wrong again. The burden of proof rests on the person making the claim or accusation. If you say someone did something, it is up to you to prove it. It isn't up to the accused to prove they didn't do it.
"Innocent until proven guilty" in a court of law in America.
Besides, this is way off base from what the original topic was, which about bad references. My point, and the point others made, was that employers do not want to get on that slippery slope.
You are both saying the burden of proof rests with the same person.
In a civil suit generally the plaintiff IS the person who is making the claim/accusation.
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Quote:
Originally Posted by nebulous1
Wrong again. The burden of proof rests on the person making the claim or accusation. If you say someone did something, it is up to you to prove it. It isn't up to the accused to prove they didn't do it.
"Innocent until proven guilty" in a court of law in America.
Besides, this is way off base from what the original topic was, which about bad references. My point, and the point others made, was that employers do not want to get on that slippery slope.
A. It depends upon the state you are in.
B. It depends - yes if something goes to court the company may very well win HOWEVER companies do go into arbitration/settle & pay out monies b/c in the long run that can be a more cost effective route then paying attorney's fees etc. to go to court. And not all states allow for attorney's fees to be compensated by the losing party.
So, some companies realize that it is prudent to not engage in giving out bad references just b/c they feel like it b/c they understand the implications financially. Additionally ANY company counsel worth his/her salt will advise you to just confirm dates of employment etc & not say anything bad about the employee unless they pose a safety risk to the next employer. Will the employer ultimately win if there is validity to their statement? Yes they could BUT it isn't worth the money to fight it. AND if it appears that there is some impropriety going on behind the scenes they could lose a percentage of the case, since it is civil.
Quote:
Originally Posted by TracySam
Yes, people can sue about anything. But will they win? Most of the time, no.
"Badmouthing" someone would only lead to an award in a lawsuit if slander can be proven. State laws vary a little, but in general to prove slander, the plaintiff would have to prove that what was said (the "badmouthing") is not true, is not merely opinion, and that the plaintiff incurred actual damages from what was said. Pretty hard in reality.
I can say that a former employee was fired because of suspicion of theft. Is that "badmouthing"? Possibly. But it's different from saying I fired the person "because they were stealing" or "because she was a thief." If I have no actual proof of this, then this is, or could be, slander. But to say some was fired because of "the suspicion of ---," then the person can try to sue for slander, but it will be thrown of court.
There is a clear difference between stating fact and stating opinion. It is in the way it is stated. Fact can be proven true or false; opinions, are, well, they just are.
If I say "I fired nebulous because I caught her harming a patient" then I am stating it as a fact. It is then up to me to prove whether this is a true fact or a lie. If I say "I fired nebulous because in my opinion she was not reliable" or "In my opinon she was a poor performer" or "In my opinion she was negligent in her work," then this is stated as an opinion, not as a fact. She could sue me for slander, but if it got to court, the jury would be instructed that they must find that my statements must meet all the criteria of slander for it to be slander. And my statements could not constitute slander if stated as opinions.
Hiring a person who ends up committing misconduct, might "look bad," but we all hire people who present well in interviews and have clean criminal histories, but we sometimes still end up with bad people. That's the world.
And, people can be fired based on a suspicion of misconduct. It does not have to be proven beyond a reasonable doubt like in a court of law. No proof has to be produced at all for it to be a legal termination. The person may win unemployment, but they will not win a wrongful term suit, or a slander suit.
In some fields, like in some areas of healthcare, and in certain states, former employers not only can, but have to inform future prospective employers about some misconduct. For instance, in NJ the "Cullin" legislation requires us to report any healthcare professional who has likely abused or harmed a patient, even if criminal charges were not filed.
Some industries and companies care more about "competition" that justice, but many will decide to report serious suspicions of wrongdoing of former employees to prospective employers, because it is more important to do the right thing that to have the "competition" get a bad employee. And in the real world, companies don't want to go through the effort it would take to deliberately "sabotage" a former employee. No former employee is that important.
Not even that - often these attorneys will work for a percentage of the settlement/award and not require their client to pay them hourly. However the company either must have their retained, salaried general counsel spend time on this OR pay attorney's fees for their outside law firm to handle it. And many states do NOT allow attorney's fees to be awarded back.
Quote:
Originally Posted by nebulous1
Oh, but if he has enough money, he can get an attorney to prove they were badmouthing him.
Oh, and they hired him...and kept him how long?
Why would they have chosen to hire such a bad person in the first place? Looks bad for them...
Facts? We all know there are opinions, and unless they can prove you were stealing, or other and the police were called in to investigate, they just come off looking like a disgruntled employer. They come off angry someone left. Because if they were truly a problem employee, they would hush and let them go elsewhere...
and be someone else's problem. The competition isn't going to be so nice as to warn about a potential problem.
There are unenforcable laws, but if you have enough money, you can sue for just about anything. And anyone who badmouths a former employee takes a huge risk. Someone could hold a grudge, be jealous, try to sabotage someone's career, especially if it were a colleague or one was promoted over the other.
"Warning" another company about an employee is dangerous, because someone could be wrong about that person, and someone could have been out to cause them trouble. It becomes hearsay without evidence, and unless someone has been convicted in a court of law about a crime, or has undeniable evidence, the most an HR recruiter will give out is that the person had worked there and verify dates.
My issue with nebulous is that she is mixing up due process in a court of law, and due process in a wokrplace.
When it somes to law, yes, the burden of proof is on the accuser. For criminal cases, this is the prosecution, and the burden is "beyond a reasonable doubt." In civil cases, it is the plaintiff who has the burden, and depending ont he state and they types of case, the burden is not "beyond a reasonably doubt" but somehting less, like preponderance of evidence. The idea of "innocent until proven guilty" is the basis of due process, in LAW, and it does not have to followed when issuing corrective actions int he workplace.
In the workplace, you can fire someone if you just have a suspicion that they did something wrong. There is no legal burden of proof placed on the employer. There is no right to due process, there is no "innocent until proven guilty" standard. I can fire someone based on suspicion of misconduct. I do not need proof. Do I investigate and try to get some proof? Sure. Do I have to? No. The worst that will happen is the the fired person will get awarded unemployment, but this does not in any way say that the the termination was illegal or improper.
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Somewhere in this long thread we went from discussing giving bad references and is this legal vs. slander, to the burden of proof in a court of law. Our friend has dragged us off course.
So to summarize, to clear up any confusion for my friend here:
1. Employer can fire employer for any reason not prohibitied by law. Employer can fire based on a suspicion of misconduct, even with no proof.
2. Employer can later give ex-employee a bad reference, provided that they don't lie about any facts, or provide info on a protected class status. A bad reference is not slander.
3..Slander involves saying something factually not true, and the subject experiencing real damages from this untrue information.
4. If ex-employee tries to sue employer for slander based on a bad reference, the ex-employee (the plaintiff) has the burden to prove that the statements made were false, and that they experienced damages.
Ex-employee will likely not succeed unless they can show some convincing evidence that employer intentionally said someting false. If there is such evidence, ex-employee may win. But most likely, she will not.
5. Employers try to avoid such lawsuits, because even though they will likely win in the end, the process is costly and a general pain in the behind. Also, many companies have attorneys and insurance carriers that advise them to settle these matters out of court, even though the employer did nothing worong. This sets up a system in which giving bad references is not permitted by company policy, and in which employees think they have the legal right to have nothing negative said about them.
In court you will have to justify your reasons for firing/ giving the bad reference. And you better have your documentation in order. That is why there are HR departments with things such as progressive discipline procedures, hiring documentation etc. And if an employee thinks you are giving them a bad reference due to some sort of discriminatory or malicious intent they can report you to the DOL or the EEOC which will investigate the claim. If your paperwork is not in order to justify your actions you will not be happy. So this is where an employer would need to justify themselves in a sense. The civil suit which would often just lead to arbitration is another scenario & is not precluded by a DOL or EEOC investigation. So many larger employers know to have their ducks in a row.
Quote:
Originally Posted by TracySam
My issue with nebulous is that she is mixing up due process in a court of law, and due process in a wokrplace.
When it somes to law, yes, the burden of proof is on the accuser. For criminal cases, this is the prosecution, and the burden is "beyond a reasonable doubt." In civil cases, it is the plaintiff who has the burden, and depending ont he state and they types of case, the burden is not "beyond a reasonably doubt" but somehting less, like preponderance of evidence. The idea of "innocent until proven guilty" is the basis of due process, in LAW, and it does not have to followed when issuing corrective actions int he workplace.
In the workplace, you can fire someone if you just have a suspicion that they did something wrong. There is no legal burden of proof placed on the employer. There is no right to due process, there is no "innocent until proven guilty" standard. I can fire someone based on suspicion of misconduct. I do not need proof. Do I investigate and try to get some proof? Sure. Do I have to? No. The worst that will happen is the the fired person will get awarded unemployment, but this does not in any way say that the the termination was illegal or improper.
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Somewhere in this long thread we went from discussing giving bad references and is this legal vs. slander, to the burden of proof in a court of law. Our friend has dragged us off course.
So to summarize, to clear up any confusion for my friend here:
1. Employer can fire employer for any reason not prohibitied by law. Employer can fire based on a suspicion of misconduct, even with no proof.
2. Employer can later give ex-employee a bad reference, provided that they don't lie about any facts, or provide info on a protected class status. A bad reference is not slander.
3..Slander involves saying something factually not true, and the subject experiencing real damages from this untrue information.
4. If ex-employee tries to sue employer for slander based on a bad reference, the ex-employee (the plaintiff) has the burden to prove that the statements made were false, and that they experienced damages.
Ex-employee will likely not succeed unless they can show some convincing evidence that employer intentionally said someting false. If there is such evidence, ex-employee may win. But most likely, she will not.
5. Employers try to avoid such lawsuits, because even though they will likely win in the end, the process is costly and a general pain in the behind. Also, many companies have attorneys and insurance carriers that advise them to settle these matters out of court, even though the employer did nothing worong. This sets up a system in which giving bad references is not permitted by company policy, and in which employees think they have the legal right to have nothing negative said about them.
I don't disagree with you. I never said that giving a bad reference for a discriminatory reason would be acceptable or defendable. The whole thread is supposed to be about "can an employer give me a bad reference?" And I believe that's been settled. Yes, whenever an employee is terminated, most employers make sure "all their ducks are in a row." Some better than others. The employer maight have to "justify" their actions, but they don't have the burden to prove beyond doubt that their actions in terminating, or in giving the bad reference were justified.
We are not debating all the different variables than can arise in a lawsuit. We don't need to get into a bunch of what if's. A few posters in this thread have said that they believed that it is illegal to give a negative job reference. Then some of us have responded with many facts to the contrary. I do not believe that you and I disagree on this.
They cannot address anything. You can only verify DATES OF EMPLOYMENT and POSITION only! When they do a reference check for a former job, it is THOSE 2 things only!
You're absolutely correct. I know my boss is extremely cautious about potential lawsuits and she never says anything beyond that.
You're absolutely correct. I know my boss is extremely cautious about potential lawsuits and she never says anything beyond that.
Exactly Sierra!!That is what my point was also!! Employers do not want lawsuits on their hands....All of our HR Directors, administrators want to stay as neutral as possible!!! Some people here think it is up to the employer if they want to say negative things about a former employee. But in reality most do not bad mouth them for fear of a lawsuit!
I don't disagree with you. I never said that giving a bad reference for a discriminatory reason would be acceptable or defendable. The whole thread is supposed to be about "can an employer give me a bad reference?" And I believe that's been settled. Yes, whenever an employee is terminated, most employers make sure "all their ducks are in a row." Some better than others. The employer maight have to "justify" their actions, but they don't have the burden to prove beyond doubt that their actions in terminating, or in giving the bad reference were justified.
We are not debating all the different variables than can arise in a lawsuit. We don't need to get into a bunch of what if's. A few posters in this thread have said that they believed that it is illegal to give a negative job reference. Then some of us have responded with many facts to the contrary. I do not believe that you and I disagree on this.
I am not mixing up anything.
In an "at will" state, an employer can fire any employee for absolutely no reason at all, except racial discrimination or sexual harrassment. You can call any employment attorney up and they will back that up. What a court can find right or wrong isn't necessarily what the laws say.
As b75 pointed, out, "...if an employee thinks you are giving them a bad reference due to some sort of discriminatory or malicious intent they can report you to the DOL or the EEOC which will investigate the claim."
Malicious is the key word here. And remember, what goes around will come around.
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