Does a Negative Job Reference on a Security Clearance Application Constitute “Defamation”?

Obtaining a security clearance is often a stressful process. Even the slightest blemish on your record, or question about your character, may raise suspicions and ultimately lead to the denial (or revocation) of a clearance. For these reasons, it is important to ensure that you maintain a good work history and employment record.

Maryland Judge Rejects Defamation Lawsuit Over “For Cause” Termination

But what happens if a former employer gives you a negative or less-than-glowing job reference? In one recent case here in Maryland, the employee filed a civil lawsuit accusing an ex-employer of defamation. Specifically, the plaintiff said the employer’s statements to the government unfairly impaired his ability to obtain a higher-level security clearance.

According to the plaintiff’s lawsuit, he worked for the defendants as an independent contractor. The defendants provided services to various government agencies. The plaintiff said that in 2016, the defendants told him “his services would no longer be required.” The plaintiff subsequently started seeking government contracts on his own, in some cases in direct competition with the defendants.

As part of his efforts, the plaintiff applied for an increased security clearance. As part of the application process, the government requires information from the applicant’s former employers. Here, the defendants returned a form to the government that stated the defendant was “fired … for cause.”

This prompted the plaintiff’s defamation lawsuit. He alleged the statement he was “fired for cause” was false and expressly intended to hurt his chances of obtaining the increased security clearance. Additionally, the plaintiff said the defendant’s defamation hurt “his standing and reputation within his professional community” and made it “significantly more difficult” to obtain a higher security clearance. On this basis, he sought monetary damages.

But a federal judge ended up throwing the case out of court. The judge explained there are two types of defamation recognized under Maryland law: defamation per se and defamation per quod. Defamation per se means the statement itself is defamatory, while defamation per quod suggests the words are defamatory when taken in a particular context.

Here, the judge said that simply stating the defendant was fired “for cause” did not constitute defamation per se, because the “cause” could be anything. It did not necessarily mean the plaintiff did anything wrong. For instance, the judge said an employee might have a “temporary inability to work because of illness,” and that would lead to a termination “for cause” that does not otherwise implicate the person’s “skill or professional capacity.”

That said, the judge acknowledged that the defendant’s statements could qualify as defamation per quod, as in the context of national security clearance law, “any black mark on [the plaintiff]’s record—no matter how small or ambiguous—would impugn his fitness and qualification for work at that level in the industry.” Nevertheless, the judge dismissed the case because the plaintiff failed to allege any “actual damages” he suffered as a result of the defendants’ statement. Indeed, the plaintiff did not allege he was actually denied an increased security clearance, or that he was unable to obtain any specific work as a result of the defendants’ actions.

Call Henault & Sysko If You Need Help with a Security Clearance Matter

Obtaining a security clearance is not a one-time affair. You need to maintain it constantly throughout your career as a government employee or contractor, and you need to take appropriate action to correct any mistakes in your employment record that could affect your clearance. An experienced Maryland security clearance lawyer can help. Contact the offices of Henault & Sysko, Chartered, at 410-768-9300 to speak with a member of our legal team today.

Source:

scholar.google.com/scholar_case?case=13041624327244957368