- posted: May 15, 2020
- Todd McMurtry
- Employment Law, Defamation
- damages, malice, qualified privilege
Your ability to earn a livelihood depends in large part on your reputation, which can be heavily based on what your present and previous employers or clients say about you. If you believe that anyone connected with your career made disparaging remarks that hurt your prospects for a job or a promotion, you may be entitled to sue for defamation, seeking money damages.
Proving defamation requires showing that the statements were false, of a defamatory nature, about the worker, made to a third party, made negligently or intentionally, and (depending on the defamatory nature of the statements) caused damages. Because of this exacting standard, there are important things to keep in mind when contemplating such a claim against an employer or other business associate:
- Some communications are privileged — Employers usually may speak about an employee’s character and qualifications to other parties who have a legitimate interest in that information, such as a hirer or recruiter seeking a reference. This is a qualified privilege, however. It does not cover a false statement made with actual malice — namely, knowledge of its falsity or reckless disregard of whether or not it is true.
- The statement must have been harmful (i.e., of a defamatory nature) — Even if a knowing false statement can be proved, the plaintiff still must show that an injury resulted, such as reputational damage or emotional distress. This includes showing that the plaintiff’s job prospects were significantly hampered as a result of the defamation.
- Certain statements are defamatory per se — When false statements are made that an employee committed a crime, engaged in lewd or promiscuous activity or carried on other conduct that would be considered a public disgrace, defamation is presumed to have occurred. The employee may recover punitive damages even without showing actual harm.
- Opinions are not statements of fact and thus cannot be proven false —An opinion by its very nature is neither true nor false but only an indication of the speaker’s frame of mind. However, the line between opinion and statement is not always clear. Even expressions couched in terms like “I feel,” “I think” or “In my opinion” can be defamatory if they convey false information.
Many companies have adopted best practices that prohibit giving out any data about employees, other than to confirm their job titles and dates of employment. However, offhand comments on the side can be defamatory. What’s more, these communications are usually not protected by the qualified privilege.
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