Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, October 14, 2011

My Employer Defamed Me!

So your employer called you incompetent. Or you disagree with your write-up. You're hopping mad. It's a lie! You're ready to sue. Slander. Libel. It has to be something you can sue for, right? Meh. Probably not. Slander and libel are in the general category of defamation. Defamation is where your employer or former employer makes a false statement of fact about you to someone other than you that damages your reputation. But most statements, even false ones, probably aren't defamation.

Here's what you need to know about defamation in the workplace:

References: Some states have statutes protecting job references to some extent, but even then the employer generally cannot give out knowingly false information. A statement that the employee was an embezzler, ponzi schemer, or pedophile, made when the person giving the reference knew it was false, will probably not be protected.

Qualified privilege: Employers also have a qualified privilege, that is, one that can be overcome, to conduct an investigation of employee wrongdoing. For instance, if someone complains of age discrimination, the employer’s human resources person, attorney, and the named witnesses can speak about the investigation and will probably be protected. There are some ways to overcome a qualified privilege, so you’ll want to talk to an attorney even if you think the statement was privileged.

Publication: The information must have been “published” to a third party, which only means that it had to be said to someone other than you. Some states consider statements made inside the company not to have been published to a third person. A statement to you about you will never be defamation unless others were present to hear it.

Absolute privilege: Some communications can never be the subject of a defamation case no matter how knowingly false. These may include statements made in a legal proceeding, statements made to police, to administrative agencies (such as unemployment), and by government officials in the scope of their employment. I say “may” because this can vary by state and can be fact-specific.

Opinion: Statements of opinion are not defamation. If the employer simply says that the employee was a poor performer, the statements may well be of opinion, not fact. Statements like, “In my opinion, she was a pedophile,” will not get around the law of defamation.

Donna’s tips:

a. Employees can defame former employers too, so be careful. Corporations can be defamed just the same as individuals. If you have a blog, website, or make statements disparaging the company or their products, you should be careful to get your facts right.

b. Defamation claims against employers can be tough. Many judges just don’t like them.

c. Sometimes a cease and desist letter will accomplish more than a lawsuit. Getting the defamer to stop the statements might be more valuable to you.

d. If you are thinking about filing a defamation claim against an individual, be careful and make sure the person has assets that will make them collectible. Broke defendants can be frustrating when you try to collect.

6 comments:

  1. I remember hearing somewhere that a statement is always protected if it is true. It seems simple... is this correct?

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  2. Yes, Kimberlee. In the US, truth is always a defense.

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  3. Can an employer accuse an employee of stealing from another employee with no evidence or cause to show this and send the employee home for the day while an "investigation" continues, claiming to have video evidence but when confronted to present the evidence the employer backtracks but specifically says to think about resigning because now the other employees might retaliate and it would be uncomfortable for the employee who did absolutely nothing wrong?

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    Replies
    1. Hi Michelle. The employer can definitely suspend you during an investigation. Don't resign unless you have another job lined up. If they want to fire you, I suggest letting them do so. Otherwise, they should instruct your coworkers that you are not to be retaliated against. If you were singled out due to race, age, sex, national origin, etc. then you might want to make a complaint of discriminatory harassment. I suggest talking to a lawyer in your state about your rights.

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  4. Can an employer be protected by qualified privilege if their investigation into a report of employee misconduct was compounded with additional allegations of misconduct discovered during the course of the original investigtion? The employer claims that during the course of their investigation into the original claim of misconduct, they became concerned about other possible acts of misconduct unrelated to the original complaint. Now the new complaint seems to be more the focus of concern, than the original complaint.

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  5. Someone overheard my boss speaking poorly of me to another employee and her supervisor. He influenced my performance evaluation and it was a poor one. I wrote a rebuttal and asked for details of what he's talking about. The person he was speaking to - we have only ever communicated via email and I have records of all the email. Another employee overheard them saying that they were going to write up a list of infractions to back up his claims - it's all a lie. What can I do?

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