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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