Defamation is a false statement of fact that is made public and harms the subject’s reputation. Oral statements are called “slander” and written statements are called “libel.” Within the context of the workplace, defamation usually occurs when someone seeks to harm a current or former employee’s reputation, career or character by making a false statement (oral or written) about the employee. False rumors or statements concerning an employee’s competence or honesty can often spread quickly through the workplace. Such defamatory statements can prevent employees from obtaining employment elsewhere, or they might result in lost promotions, personal stress, or missed career opportunities.
Defamation law is state-specific; however, the following elements are required to prove workplace defamation in most states:
A key component to a defamation claim is the requirement that the alleged statement(s) are statements made as though they are fact, not opinion. Generally, expressions of pure opinion, rather than statements of fact, are not defamatory. If it is proven that the alleged statements are actually true, that is usually a complete bar to recovery for defamation.
Generally, employers have a qualified privilege for the criticisms and critiques made in oral or written performance evaluation, but there are exceptions for egregious conduct. When an employer makes defamatory statements in a performance review that are motivated by malice, made in bad faith without a factual basis, or are intended to harass, the employer making the comments may be liable for defamation. For example, false allegations of theft, dishonesty, incompetence, and other harmful or criminal assertions – even if made during a performance review – may be considered defamatory.
Some states have laws protecting employers who speak openly about former employees when called for a reference or background check. Generally, if an employer only provides the facts of an employee's work history, it is not likely to be considered defamation according to state law. In addition, many states offer employers immunity from liability for the disclosure of accurate information regarding job performance or the reasons for termination.
A defamation lawsuit by an employer against an employee may constitute unlawful retaliation if the employer brings the suit to retaliate against the employee for engaging in a protected activity, such as complaining about unlawful discrimination. Outten & Golden attorneys are experienced in representing employees who have been sued by their employers for defamation, including both libel and slander.
In California, the state law has very specific definitions of what constitutes defamation, using the terms “libel” (written) and “slander” (oral). California Civil Code Sections 45 through 47 define those terms as follows:
The proof required to prove libel or slander depends on the individual claims; however, in some cases, the damages may be easier to prove. For example, where the defamatory statements relate to an individual’s job competence or professional reputation, the damage to the individual may be assumed. The burden of proof also depends on the status of the person alleging defamation. Generally, the employer must prove the alleged statements are true; however, if the one alleging defamation is considered a “public figure,” the burden is on that individual to prove that the alleged statements are false.
Finally, in California, individuals who file defamation lawsuits may be subjected to a court process known as an “anti-SLAPP” motion, which requires the plaintiff, in certain cases, to demonstrate early in the suit the likelihood of success on all the elements of the claim. If that motion is successful against the plaintiff, he or she may be responsible for paying the employer’s attorneys’ fees and costs.
Individuals who believe they have experienced defamation, libel or slander will find sensitive, skilled attorneys at Outten & Golden who are committed to advocating for their rights. Keep in mind that there are short filing deadlines and limitation periods for claims of defamation, libel and slander and, as a result, you should seek legal counsel as soon as possible. If you believe you have been subjected to defamation, libel or slander, please contact the firm through the ”Contact Us" form or by calling us in the New York, San Francisco or Washington, DC office (see bottom of page for phone numbers) to begin the Outten & Golden intake process.