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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 12804
Experience:  Significant experience in all areas of employment law.
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I have lived an worked in Arizona since 1969. For close to

Customer Question

I have lived an worked in Arizona since 1969. For close to 30 years I have worked in the legal support field. I left my past position with a letter of resignation. For the first time I have not had another job offer despite numerous second interviews. This has been over a five months period. Suspecting a previous co-worker who represents herself as HR might possibly be giving me a bad references, I contacted a company and paid to have a reference check done.The previous law firm has a firm wide policy, which is in their handbook, of which I have an electronic copy and had to sign that I received and read it at the time I started with the firm. The handbook states:Requests for Information Regarding Current or Former EmployeesAll requests for information regarding current or former employees must be directed to the Chief Executive Officer. No other Manager, Supervisor, or employee is authorized to provide any information, including letters of reference, regarding current or former employees to anyone outside the Firm. Upon request, the Chief Executive Officer will generally verify only a current employee’s dates of employment and job title. Management will require a written disclosure authorization and release before verifying any information.The CEO is in the home office, which is in Irvine, California. Potential employers are calling the Phoenix office in Arizona. The individual giving the reference is told the company sent, in part, the following "I spoke with Denise again today and when I asked if you resigned or were terminated, she stated that it was “a little bit of both”. She then said, “It was mutual, a better way of saying it. She had difficulty working with the younger attorneys”. That was all she would say."I resigned from this firm, and did not have any issues with younger attorneys. In fact, I had worked with young lawyers in my previous firm, and have one of them as a reference.Is there anything I can do about this?Thank you.
Submitted: 12 months ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 12 months ago.

Hello and welcome. My name is ***** ***** it will be my pleasure to assist you. Please just give me a moment to review your question....

Expert:  Patrick, Esq. replied 12 months ago.

I am very sorry this is happening to you.

Unfortunately, nothing can be done about the fact that an employee is violating the company's policy with respect to references. That is purely an internal personnel matter for the company. The can discipline and even terminate an employee for violating protocol but you do not have a right to sue the company or any of its employees because an employee there has violated company policy.

The only potential claim here is for defamation. However, defamation claims only arise from false statements of fact, and saying that you don't "work well" with certain employees would likely be construed as a statement of opinion. Statements of opinion are not provable as true or false because they are inherently subjective. As such, they cannot give rise to claims for defamation.

There is a second problem with a defamation claim as well, which is that employers (and the employees working on their behalf) are protected from defamation claims in the context of response to reference requests unless malicious intent can be shown in ADDITION to falsity of the statement. Proving malice is very hard. You would essentially have to demonstrate that this person was trying to block you from getting a new job and that was their sole intent.

Still, a cease and desist letter can be an effective remedy in these circumstances. Just because a legal claim would be unlikely to succeed does not mean a lawsuit still cannot be threatened. Since this employer has little to gain by saying bad things about you and much to potentially lose in legal defense costs if they are sued, a cease and desist letter can often stop an employer from giving a bad reference. That, and making clear that the CEO should be contacted for references in your applications for future employment would typically be your best bets here.

I hope that you find this information helpful. Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes moving forward.

* Disclaimer *

Just Answer is a venue for informational and educational purposes only. No attorney-client relationship is formed by these communications.

Customer: replied 12 months ago.
Do you write cease and desist letters? If yes, what is a basic starting fee?
Expert:  Patrick, Esq. replied 12 months ago.

Unfortunately, I am prohibited from writing letters on behalf of customers of the site. You would need to retain a local employment attorney. You can locate one here. Many are willing to perform this sort of letter writing service for a flat fee around $300.

Again if there is anything more I can do for you just let me know. It's my pleasure....

Customer: replied 12 months ago.
Patrick,This was not a "mutual" situation where I left. I clearly resigned. It is the misrepesentation that infers my employment was terminated this if false. Is there nothing I can do about that?
Expert:  Patrick, Esq. replied 12 months ago.

Yes, that could likely be construed as a purely factual false statement. However, to have an actual defamation claim you'd still have to prove that this statement was actually made to a prospective employer (not just to the company that you used to investigate), that you lost an employment opportunity because of the false statement, and that the employment opportunity was not lost because of the statement of opinion regarding how you work with younger attorneys.

In all honesty, defamation claims are rarely practical to bring and extremely difficult to win. It's why attorneys will rarely accept them on contingency, and if you can't find representation on contingency, you'll need to pay hourly, which generally required an up front retainer of 5-10k. Then, you'll have to consider that by filing a lawsuit you'll be engage in a public court battle. When someone Googles your name, the case will likely come up and they will get to read all about the negative things your employer was saying about you which you claimed were defamatory.

For all these reasons, the better course of action is to mitigate damages moving forward by using a cease and desist letter to deter future defamatory statements, rather than attempt to recover for any past losses. I could tell you otherwise, but that would not be me being realistic with you, and you are here for honest and candid information.

I hope this helps. Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service (using the stars at the top of the page) so that I may receive credit for assisting you.

Very best wishes.

Customer: replied 12 months ago.
Patrick, I never intended to litigation this; for heaven's sake I wrote I've been working in the legal support field for 30 years. What I want is a cease and desist letter at a reasonable fee.
Customer: replied 12 months ago.
Terribly sorry for the typos and incorrect use of words; I am beyond upset after receiving the reference check this evening.
Expert:  Patrick, Esq. replied 12 months ago.

I understand and I know this must be very upsetting. I am trying to answer your questions the best I can. I am trying to help you. Is there anything else I can do for you?

Expert:  Patrick, Esq. replied 12 months ago.

Are you still with me?

Customer: replied 12 months ago.
Patrick, I'm not sure how you can help me. I already know where I can get a cease and desist letter for $395 through Allison & Taylor, Inc., but will be coming from an attorney out of Colorado. I would imagine a cease and desist letter would carry more weight from an attorney who is located in Arizona. I just filled out an online form for a local employment attorney outlining the factual misrepresentation and asking if they could provide a cease and desist letter, and if so, what would be the cost.
Customer: replied 12 months ago.
I am just about ready to leave the legal field and head into another field. It is a shame. I am very good at my job. But I can't overcome a woman who is answering the phone, who called herself a paralegal but didn't know what a motion in limine was when we were head into a five month jury trial. She has always been malicious but I just let it slide off. Now I am going to stop her regardless of what it takes to shut her down.
Expert:  Patrick, Esq. replied 12 months ago.

Well, I hope I was able to help you by answering your original question and pointing you in the right direction here. You definitely want the cease and desist letter to come from an attorney in AZ, as only an AZ licensed attorney can file suit for you and the threat of a lawsuit is the whole purpose of a cease and desist letter.

Please let me know if there is anything more I can do.

Expert:  Patrick, Esq. replied 12 months ago.

Why not contact the CEO and explain that this employee is giving references when they shouldn't? Also, why not update your resume to make clear where reference inquiries should be directed? These are practical remedies that can help you moving forward, in addition to the cease and desist.

Expert:  Patrick, Esq. replied 12 months ago.

I would really appreciate a positive rating of my service if you do not have any further questions for the time being, as this is how I am compensated for my time on just answer. I truly with you the best moving forward here....

Expert:  Patrick, Esq. replied 12 months ago.

Are you still with me?