Defamation at Work

Defamation at work occurs when employers, customers or co-workers publish false statements of fact, without legal privilege to do so, that harm the reputation of employees. A negative employment references can prevent an employee from getting a new job, for example, and would amount to defamation if false, but employers have a "qualified privilege," or a defense to defamation claims for employment references. The qualified privilege protects employers from verdicts for false and harmful references, as long as the employer did not act with malice when it made the false reference. 

Defamation defined

Each state has its own test for proving defamation at work. Generally, though, defamation at work means: 

  1. an employer, co-worker or customer made a false and harmful (defamatory) statement,
  2. about an employee or former employee,
  3. that it published, without privilege, to a third party,
  4. with fault of at least negligence (carelessness), and 
  5. either caused actual harm to reputation, or the defamatory statement is of a nature that the law presumes it to have caused such harm.

Opinions and the Innocent Construction Rule

Defamation requires an untrue statement of fact. Opinions are not facts, so defamation claims based solely on unfavorable opinions will fail. The statement that an employee "seemed shifty" expresses an opinion, while the employee "stole from me" is a statement of fact.  

If a factual statement has two meanings, one innocent and one defamatory, courts can adopt the innocent meaning and reject the claim for workplace defamation. For example, saying that detectives are questioning an employee about a suspected theft could imply that the employee is a suspected thief, or a witness to a theft.  In that case, the court can conclude that the statement meant the employee was a witness and find that the statement is innocent.

Publication to a Third Party

Defamation at work requires publication of the false statement to a third party. As a result, supervisors do not defame employees by telling only them that they did something terrible even if, in fact, they did not. The employee is the first person, not the third. In a similar sense, if the supervisor told the Human Resources Director that the employee did something awful, when the employee did not, the supervisor still has not defamed the employee. When the supervisor and Human Resource Director talk to each other about something that falls within the scope of their respective jobs, they are both speaking as the employer, and conversation amounts, in defamation law, to the employer talking to itself.

If the supervisor tells a co-worker who has no need to know that the employee did something horrible, then the co-worker is probably a third party, and the supervisor's statement is defamatory. The employee must still prove that the statement caused damage, though.  

Employer Qualified Privilege

An employer has a qualified privilege to make statements about its employees concerning matters of their employment, especially when made in response to another employer's request for a reference. The "privilege" is a defense to a defamation claim. An employer can, for example, respond to a reference request by stating that an employee "stole from us" and avoid a finding for defamation at work, even if wrong, as long as the employer did not act out of malice. Public policy encourages a free flow of information among employers about potential employees, so the law carves an exception out of the law of workplace defamation for reference requests. If the employer knows that the employee did not steal but says so anyways, the employer probably loses the privilege.

Defamation requires Fault amounting to Negligence 

An employer may avoid a finding of defamation if it exercised reasonable care when it made the false statement. For example, an employer that informs an employee assistance program that a truck driver tested positive for heroin use is not liable for defamation if the positive test was false because the employee did not tell the drug testing lab that he was taking prescribed Vicodin. For all the employer knew, the drug test was accurate, and it had no reason to believe otherwise.

Damages in a Defamation Case

An employee must prove actual damage in a defamation case, unless the words used to defame the employee amount to defamation "per se."  Employees can prove actual damage if the defamatory statement costs them their job. However, since defamation involves harm to an individual's reputation, and because reputation is difficult to quantify, actual damage is often difficult or impossible to prove.

The law assumes, however, that some statements cause harm to reputation, by the very nature of the statement. Statements that reflect upon one's character in a manner that will cause ridicule, hatred, contempt, or injury to trade or profession, if proven, are defamation per se, and do not require proof of actual damages. Accusations of serious crimes or immoral conduct constitute defamation per se.

Slander and Libel

Slander refers to defamation when spoken, and libel means written defamation. The legal test for proving and defending libel and slander claims is the same as for defamation. 

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BLS Reports Decline in Nonfatal Workplace Injuries and Illnesses Resulting in Time Away from Work

Littler Report Provides Many Insights and Practical Solutions for Employers Considering a "Bring Your Own Device" to Work Program

Employers Shalt Not "Encourage" Employees to Work During Meal Breaks -- Brinker v. Superior Court

Are post-work security checks compensable? #SCOTUS and Integrity Staffing Solutions v. Busk

M. Slavin and Sons Pays $900,000 To Settle Hostile Work Environment Lawsuit

Tip Credit Not Applicable to Bartenders and Servers Where More Than 20% of Work Is Performing Related But Nontipped Duties

California Plant Worker Sues after Wrongful Termination Following Complaints Unsafe Work Conditions

Sexual Harassment Policy Critical to Fostering Proper Work Environment in Orange County

Trade Unions Demand Governments Address Gender-based Violence in the World of Work

U.S. Supreme Court to Determine Whether Time Spent Putting On and Removing Equipment for Work Should Be Compensated

Court finds Police Officer's Injuries as Work Related and Claims Her Eligible for Benefits

Lori Adelson offers thoughts on rising retaliation against employees who report bad behavior at work

Mark A. Spognardi and Jesse R. Dill co-author article for Inside Counsel on Michigan right-to-work law

DOT Regulation on Observed Return-to-Work and Follow-Up Drug Testing Goes into Effect August 31, 2009

Coronavirus Update 6–11–2020: OSHA issues guidance on cloth face coverings at work

Sam's Club Settles Hostile Work Environment and National Origin Lawsuit For $440,000

Mark A. Spognardi quoted in Law360 article on corporate backlash from Yahoo!’s work-from-home ban

Seventh Circuit Requires Actual or Constructive Knowledge of Employee's Off-The-Clock Pre-Shift Work

Unpaid Prison Barber Made to Work During Covid Says, “We Aren’t Properly Disinfecting Anything”

Bisom-Rapp, Frazer and Sargeant on Decent Work, Older Workers and Vulnerability in the Economic Recession

Second Circuit Holds that Timely Arrival to Work Is not Always an Essential Function of the Job Under Disability Discrimination Laws

Indiana Sherriff Sued By Department of Justice For Sexual Harrassment, Hostile Work Environment and Retaliation

Cunningham-Parmeter on Men at Work, Fathers at Home: Uncovering the Masculine Face of Caregiver Discrimination

Indiana Attorney General Submits Written Arguments to State Supreme Court Regarding "Right-to-Work" Law



Coronavirus Update 5-8-2020: Can you legally refuse to return to work to someone at “high risk” for COVID-19 complications?

DOT Regulation on Observed Return-to-Work and Follow-Up Drug Testing Goes into Effect August 31, 2009

Pro Bono Work Brings Law Students to Fort McCoy to Help Afghans Seek Asylum

Coronavirus Update 1-25-2021: President Biden calls for unemployment benefits to employees who refuse to work because of Covid

Legal System Leaders Say Hard Work and Cooperation Have Showed Pros and Cons of Remote Court Operations

Politics and work don’t mix: Southwest Airlines investigating pilot for “Let’s go Brandon” in-flight announcement

WorldatWork’s Work in Progress podcast—Episode 118: A Conversation with Employment/Labor Attorney Jon Hyman

Politics and work don’t mix: Southwest Airlines investigating pilot for “Let’s go Brandon” in-flight announcement

Sexual Harassment Victim must allege a work sharing agreement or file with the state agency within 180 days

Sixth Circuit Rejects Overtime Claim by Employee Who Did Not Report Work Performed During Unpaid Meal Breaks

Supreme Court of Canada Concludes that Employees May Have a Reasonable Expectation of Privacy in Relation to Their Work-Issued Computers

California Supreme Court Clarifies and Strengthens Work Product Protections for Attorney-Procured Witness Declarations

Employers Beware! Employees are Permitted to Use Employer’s Email Systems for Non Work Purposes, Including Union Organizing

Doctor Subjected to Sexual Harassment and Hostile Work Environment by Clinic Owner, Fourth Circuit Rules

Arizona v United States: SCOTUS to decide preemption of state statute criminalizing unauthorized aliens who work

Teachers Decide To Work For Free After Budget Cuts Leave Pennsylvania School District Without Funds For Salaries

No Such Thing as a Free Minute: City Employee Fired for Misusing Work Cellphone and What That Means for New York Workers

White House Plans to Allow Work Authorizations for Spouses of H-1B Visa Holders, as Well as to Enhance Opportunities for Outstanding Professors and Researchers

An In-Depth Analysis of the NLRB’s Decision to Permit Employees to Use Employer Email Systems for Union Organizing and Other Non-Work Purposes

ADAPT International Conference: Internship and Traineeship for Students and Young people. Training, School-to-work Transition or Exploitation?

Coronavirus Update 6–3–2020: Do “Lake of the Ozarks” employees sent home from work qualify for paid sick leave under the FFCRA?

Who are this year’s crop of nominees for The Worst Employer of 2021? Check out today’s episode of Hostile Work Environment to find out.

Double Kentucky Workers Compensation Benefits Recoverable Where Employment Ends Due to Previous Work-Related Injuries

PA Child Labor Act Modernizes and Clarifies Work Hour Restrictions for Minors in Time for Summer Hiring Season

Coronavirus Update 6–22–2020: Ohio ends unemployment benefits to employees who refuse to work (with some key exceptions)

Coronavirus Update 7-29-2020: SAFE TO WORK Act would offer employers a significant shield from employee COVID-19 lawsuits

Labor Secretary Scalia Wrongly Rejects Federal Role in Enforcing Unemployment Rights of Workers Who Refuse Unsafe Work

Coronavirus Update 8-25-2020: Articles of Impeachment drafted against Ohio’s Governor DeWine debase actual hostile work environments

Workers Sue City of Louisville in Class Action Suit for Unsafe Work Environment Due to Toxic Mold Exposure

Last Call! Third Circuit Court of Appeals Rules That Employer Can Terminate Employee For Violating Strict No Alcohol Return to Work Agreement

Italian Supreme Court rules brain tumor + work-related cellphone usage = a valid workers' compensation claim!

California Court Of Appeal Holds That Employees Lose Reinstatement Rights If They Fail To Return To Work During The 12-Week Leave Period Protected Under CFRA

This Week in the War on Workers: Temp Work Isn't Safe and it Often Isn't Temporary

I hurt my back at work and don't understand what's wrong with my spine!

Indiana Superior Court Judge Rules That Indiana's "Right-to-Work" Law is Unconstitutional

Coronavirus Update 8-17-2021: Are your work-from-home employees working more one job from home?

Commuting in Employer-Provided Car and "Postliminary" Work May Be Compensable

If I'm receiving workers' comp benefits in Georgia, can I still work?

Women Aren’t Leaving The Work Force To Have Kids, It’s Leaving Them

How Passage of a "Right-to-Work" Bill Would Affect Indiana Employees

Coronavirus Update 5-25-2021: How to enforce masks rules at work without breaching ADA confidentiality rules

Western Ontario Law's Labour Law Lecture & Conference 2013: Rights at Work

If I'm attacked at work, can I get workers' compensation in Georgia?

Is A Co-Worker Looking At Porn On His Work Computer Sexual Harassment If I See His Computer

Law Students Now Allowed to Work for Free at Law Firms

E-Verify Self Check Program to Launch on March 18, Allowing Individuals to Independently Verify Their Work Authorization Status

Coronavirus Update 4-9-2020: CDC issues new guidelines for the return of essential workers to work after a coronavirus exposure

E-Verify Self Check Program to Launch on March 18, Allowing Individuals to Independently Verify Their Work Authorization Status

Sixth Circuit Finds That Employee Who Continued to Work for Macy's Waived Her Right to File a Lawsuit in Tillman v. Macy's, Inc.

Waiver of Attorney-Client & Work Product Privileges Limited to Subject Matter of Waiver, Ninth Circuit Rules

Supreme Court's Whiting Immigration Decision and Griffith on Discovering “Immployment” Law: The Constitutionality of Subfederal Immigration Regulation at Work


How Do You Define "Work Time" Anyway?

Indiana Superior Court Judge Rules That Indiana's "Right-to-Work" Law is Unconstitutional

Coronavirus Update 3-9-2021: CDC says fully vaccinated people can safely visit fully vaccinated Grandma (but still have to keep wearing masks at work)

Pennsylvania Supreme Court To Consider When a Public Sector-Related Entity May Subcontract Bargaining Unit Work to Private Sector Contractors Without Bargaining

Equal Pay for Equal Work, Maybe

Employee "Regarded As" Suffering From Disability Where Employer Fabricated Work Restriction and Failed to Conduct Individualized Inquiry Regarding Employee's Actual Medical Condition, Sixth Circuit Rules

Fair Pay Act Would Bring Equal Pay for Equal Work

My one work rule to rule them all

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