Defamation in the Workplace: Is it Actionable?

In the real world, outside of work, you may be very conscious of things that you say and don’t say, for fear of saying something defamatory. But often, when it comes to employees, we tend to be more loose-lipped, saying things that can lead to defamatory claims.

At Work is the Same as Outside of Work

Many employers have an unfounded belief that somehow, just by virtue of the employer employee relationship, that an employee cannot sue an employer for defamation. But they can, and the nature of the workplace is such that it can be a breeding ground for potentially defamatory statements.

In a typical workplace, it is the employer’s job to critique employees, discipline them, keep and maintain employees files and do other things that may, potentially, contain information that is critical of an employee. And where all of this happens, the door is wide open for potential defamation.

The law of defamation in the workplace, operates the same as outside the workplace. To state a claim for defamation, the employee would need to show that the employer made a statement of fact, that was false, and that the statement was published to (told to or heard by) a third party.

Job Recommendations

A typical area where employers get into trouble is with recommendation letters that have critical things to say. Employers need to be careful about how they word recommendation letters that have critical or not-so-positive things in them.

One strategy is to couch any negative wording in terms of an opinion. Opinion is an absolute defense, but don’t couch a fact in an opinion—for example, saying “I think the employee may have stolen a lot of money from us,” isn’t an opinion just because you prefaced it with “I think.”

You do have some legal protection (called a privilege) to describe someone’s job performance to another employer, even if the content may have statements that could be construed as defamatory—so long as the statements aren’t made with ill will or malice (as they sometimes are, when the parting between an employee and employer aren’t’ on good terms).

Statements Within the Company

Often, critical things are said within a company—say, from a human resources officer to a  company Vice President. This is often important information that may be impossible to verify as true.

One example may be an employee complaining about sexual harassment—management is obligated to pass that information along to the proper managers, but what if it turns out to be false information?

There is some protection for communicating information within the company to those who need to know it, or to those who have a duty to act on it.

The Business Can be the Victim

By the way, defamation works the other way also—an employee can be sued for saying things about a company that are false. Often disgruntled former employees will allege that their former boss was stealing money, or evading taxes, or harassing people—all things that, if false, can constitute actionable defamation.

Call the West Palm Beach business litigation attorneys at Pike & Lustig today if you have a defamation case, in or out of the workplace.

Sources:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0800-0899/0836/0836.html

legalaidatwork.org/factsheet/workplace-defamation/