Let’s set the scene. Think about a typical Tuesday at your business. Your employees are still fresh in the week and working hard. The phone rings. It’s the manager of another business in town, and he’s looking for a reference for an employee who you let go the month before for poor performance. However, you also suspect that the employee was stealing money from your business. What should you say? How much information should you give out, and what if the individual in question hears about it? Whenever an employer discusses the discharge or performance of an employee, it is imperative that he or she is cautious to not expose their business to potential liability for anything that they say to someone else or put in writing.
Even though employers may think at the time that they are doing a favor for the requesting party by providing their own opinion of the terminated employee, it is likely that any statement made (spoken or in writing) can get back to the person and lead to a potential defamation lawsuit. This is why it’s imperative that employers are aware of the repercussions of defamatory communications in the workplace, and that they are aware of the best practices for monitoring and preventing such cases.
A defamation lawsuit will allow a current or former employee to recover for injury to his or her reputation that is the result of false communications the employer delivered to other individuals. There are two forms that defamation can take: libel or slander. Libel is a written defamatory statement, while libel may be found in a written performance evaluation or a manager email to employees with false reasons regarding the termination of an employee. In order to prevail on a defamation claim, the employee has to first show that the employee made a false and defamatory statement to a third party that was not specifically privileged. Moreover, the employee has to demonstrate that the employee was at fault for the publication of the defamatory statement and that the publication caused harm or “actionability of the statement irrespective of special harm.” If the employee is able to prevail on his or her defamation claim, then he or she may be able to recover general damages (injury to his or her reputation, hurt feelings, or mental suffering); special damages (injury to plaintiff’s business, occupation, or profession); and punitive damages.
There are many situations that can result in potential claims for defamation in the workplace. Here are four common scenarios that employers need to be careful with in order to avoid defamation lawsuits:
- Job reference phone call
- Employee’s performance evaluation
- Termination or discharge of an employee
- Statements made during an investigation, in litigation, or to an administrative agency
The truth will always be your best defense in a defamation case. Always be careful with mixing facts and opinions when discussing employees, no matter if it’s after termination, on a job reference phone call, or during an evaluation.