Release of harmful information

I have a situation I hope someone can advise me on. This is as brief as I could be. There are a lot of details.

Earlier in the year, I was fired from a private company for what they decided was gross misconduct. The misconduct was going to lunch without telling anyone. Even though the only person I was told to tell was out of the office. Someone who had lied about me earlier in the day also accused me of taking an hour and a half. I believe this was called gross misconduct on purpose to make me unable to receive unemployment insurance and an extension of my health insurance. I applied for unemployment benefits and the company contested after about three months. The claims examiner from the Labor Department ordered them to release my back checks after hearing both sides. I am fully aware of the employment at will doctrine. I do not want this job back.

My main problem is that they are going against their standard policy of not revealing a persons reason for leaving the company. During a standard reference check the reason for separation is asked, so you can understand my concern. I know for a fact they will tell anyone who asks that I was terminated for misconduct. I believe this is being done out of malice, because they had to pay my unemployment benefits and because I informed the owner of the lies his son's assistant told about me that day.
I know retaliation is hard to prove.

Can anything be called misconduct?

Can I stop them from revealing the reason I am no longer there, since this is not what they normally do?

Does New York have a statute of limitations for taking action against a former employer?

Thank You.

1 answer  |  asked Aug 23, 2001 3:31 PM [EST]  |  applies to New York

Answers (1)

David M. Lira
When your ex-employer says bad things about you

If you believe that your employer is saying something false about you when you list that employer on employment applications, there is really nothing you can do to stop the employer from doing that. However, you might be able to sue the employer for defamation.

Now, defamation is a curious animal. A statement is not necessarily defamation simply because it is negative. If it appears to be an opinion, rather than a fact, it isn't defamation, even if untrue. To be defamation, it has to look like a fact, and it has to be untrue.

Defamation cases are also rather tricky in New York State. First, you need to get the words. It is not enough for you to say that you think the employer is saying something negative about you. There are commercial services out there that will document for you what the employer says on a reference check. If you would rather not use a commercial service, you could get someone reliable and who would be available to testify for you to pose as someone checking references, to see what your former employer is saying about you.

The statute of limitation on a defamation claim is one year from the time the statement is made. Thus, each time the defamatory statement is made, a new one year period begins.

posted by David M. Lira  |  Aug 27, 2001 10:03 AM [EST]

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