If you are suing a former employer is a demand letter worth sending to them so they don't lie about you to potential employers?

I am a California attorney and not eligible to give legal advice in your state. The following is information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT PROVIDE SIMILAR OR GREATER PROTECTION. Your questions involve strategy more than law. Without knowing what it is you want to demand, the facts of your legal issue, the laws that apply, the relationship between the facts and law, whether the lawsuit is already filed, what your goals are, the employer, who would write or did write the letter, how long ago this happened, and more, there is no way to assess whether a demand letter is worth sending. If the former employer chooses to lie to a potential employer about your employment, a demand letter will rarely be useful in preventing it from doing so. Demand letters very rarely become part of the public records, whereas a lawsuit is public. A basic background check should reveal any lawsuits in which you were a party. If there is a lawsuit you believe may affect your potential employment, a better strategy would be to explain the circumstances to the potential employer and let it know in very clear terms that the problem was caused by the former employer, you tried many ways to resolve the issue without success, and the lawsuit was something you didn't want to do but had no other option (assuming all of that is true, of course). You want to address a potential employer's worry that you are litigious and may sue it, too. Many plaintiff’s employment attorneys have a lot of experience coming up with strategies to help in this kind of situation. It will cost you a consultation fee, most likely, but can be worth it in the long run. You may wish to consult with an experienced plaintiff’s employment attorney in your state. To find a plaintiff’s employment attorney in your area, please go to the web site of the National Employment Lawyers Association (NELA). NELA is the largest and most influential bar association in the country for attorneys who represent working people. The web site is www.nela.org, and you can search for attorneys by location and practice area. Also, NELA has affiliates in every state and in many cities. On the NELA web site, you can look at the list of affiliates. Some attorneys will be listed in the affiliate membership list, some in the national organization membership list, and some in both. Being listed in one or both lists should not influence your selection, because attorneys can choose whether or not to purchase the listing in the national directory. Each local affiliate has its own rules for listing. Good luck to you!

The other attorney has provided you with solid advice. If a lawsuit has already been filed, a demand letter is worthless. However, if the former employer demonstrates behavior that may result in a party having to bring a lawsuit, a simple demand letter may avoid potential conflict. For example, a demand letter may be useful to put the former employer on notice that untruthful statements made to future employers shall not be tolerated.

As a Florida attorney, I agree with the advice offered by the attorneys who have answered this question. I would add that a demand letter is often a good idea prior to filing a lawsuit. It provides an opportunity to amicably resolve the issues in lieu of suit and also puts the former employer on notice that you will be following what it says to other prospective employers quite carefully. If you have filed suit, then a demand letter makes no sense, though a letter advising that you would amend your complaint to add a defamation claim if the former employer makes any false statements of fact to a prospective employer might at least put it on notice that you are following this issue. Hopefully, you already have an employment attorney. As for interviewing with future employers, most frankly are leery of hiring someone who is suing a former employer, so I would not bring it up unless it comes up. I wouldn't lie. If you do have to discuss it, I would keep your answer short, factual, and without any emotion. You don't want a new employer seeing you emotionally vindictive against your former employer. If you keep it short and factual and indicate a regret that you had to do such a thing and had never done it before, a reasonable employer might overlook it (if they otherwise like you for a position) and give you a chance.

To respond to your comments following Mr. Reilly's response: Some employers are wary of employees who have sued a former employer, even if justified, because they worry you will sue them, too. The potential employer may know it is violating the law, or may believe it is not but worries that you will think it is, and the employer will have to spend money and time defending itself. The less employees know about their legal rights, the less an employer has to worry about being called on to honor those rights. Many employers don’t make a decision to violate the law, but it happens . . . unfortunately, it happens quite often with respect to wage and hour matters. Employers make more profits by underpaying their employees, so there is a built-in bias in favor of violating the law. A “qualified privilege” is one of those legal concepts that is hard to define precisely, and will vary somewhat from state to state. Not all states recognize this kind of privilege, and the persons to whom the privilege applies and/or the situations in which it applies may vary from state to state. Generally, a qualified privilege allows Person A to make statements about Person B in certain circumstances without fear of repercussions for making those statements. It doesn't mean Person A can lie about Person B, but does insulate Person A where a person without the privilege would not be insulated. Person A can make statements about Person B without worrying whether the statements are, in fact, true, as long as the statements are not made maliciously. For example, in California, Civil Code section 47(c) allows a person with an interest in something to discuss it with another who is interested in it; as long as there is no malice in the communication (with “malice” is defined by law), then Person A and Person B will not be subject to a claim of defamation. Specifically, with respect to employment, this Code section states: “This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision authorizes a current or former employer, or the employer's agent, to answer whether or not the employer would rehire a current or former employee. This subdivision shall not apply to a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure or any other provision of law.” I recognize this probably sounds like gobbledygook. One has to review and analyze the cases that interpret a statute to know what it really means; sometimes, one has to go back to the legislative history to figure it out.