Defamation by an Employer

posted by Neil Klingshirn  |  Jul 16, 2009 2:20 PM [EST]  |  applies to Ohio

An employee may have a claim for defamation where an employer publishes a false statement of fact that harms the employee's reputation, unless the employer had a qualified privilege for making the statement.  An employer statement of opinion, rather than fact, is not sufficient for a defamation claim. In addition, an employer will have a qualified privilege to make factual statements about an employee if the statement is reasonable and made for a reasonable purpose.

Elements of a Defamation Claim

State law governs defamation claims. Therefore, the precise law on defamation varies from state to state. In general, to prove employer defamation, an employee must prove that:
  1. the employer made a false and defamatory statement,
  2. about plaintiff,
  3. published without privilege to a third party,
  4. with fault of at least negligence on the part of the employer, and
  5. that was either caused harm to the plaintiff's reputation or is of a nature that the law presumes it caused such harm.

Opinions and the Innocent Construction Rule

Opinions do not qualify as a factual statement sufficient to support a defamation claim. For example, an employer will not defame an employee by stating "in my opinion that employee cannot be trusted."  On the other hand, if the employer said that "the employee stole from me," the statement may be defamatory. 

Even if a statement is factual and not mere opinion, if  the factual statement has two meanings, one defamatory and one innocent, courts may reject the defamatory meaning and adopt the innocent meaning. For example, an employer stated to co-workers and customers that the police were coming to question an employee about suspected theft, the customers and co-workers might believe that her employer had accused her of the theft. However, since they could also hear the same words and believe that the police were questioning the employee as a witness, the court will likely find that the employer's words had an innocent construction and therefore were not defamatory.

Employer Qualified Privilege

An employer has a qualified privilege to make a statements about the activities of  its employees arising out of their employment and concerning matters of common business interest, but it can lose that privilege if the employee proves that the employer made the statement out of actual malice towards the employee. A qualified privilege will defeat an otherwise viable employer defamation claim.

For example, an employer who tells a prospective employer that it fired a former employee on a suspicion of theft is not liable to the former employee for defamation, even if it is wrong about its suspicion of theft, unless the employee proves that the employer acted with "actual malice" in making the statement.  The employee can prove actual malice by showing that the employer knew that the statement was false or with acted with reckless disregard of its truth or falsity.

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.  Since defamation involves harm to an individual's reputation, and because reputation is difficult to quantify in monetary terms, proof of actual damage is often difficult or impossible to prove.  Consequently, employer statements involving defamation per se are more valuable.

Defamation per se occurs when material is defamatory on its face and includes statements that reflects upon a person's character in a manner that will cause him to be ridiculed, hated, held in contempt, or regarded in a manner that will injure him in his trade or profession. For examples, accusations of a crime or immoral conduct may constitute defamation per se.

Relationship between Defamation, Slander and Libel

Defamation can be written or verbal. Written defamation is "libel." Verbal defamation is "slander." The legal test for proving and defending libel and slander claims is the same as for defamation.

posted by Neil Klingshirn  |  Jul 16, 2009 2:20 PM [EST]  |  applies to Ohio

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Neil Klingshirn

Neil Klingshirn
AV rated Super Lawyer and Employment Law Specialist
Independence, OH
Phone: 216-382-2500