The Recorder reports an uptick in defamation claims by fired employees. These claims are often in the form of plaintiffs saying that their bosses gave others false reasons for their firing. These types of claims strike fear in the hearts of employers, but employers do have some powerful defenses to call upon.
Defamation is (1) a false and unprivileged statement of fact (not just opinion) (2) published to someone other than the plaintiff (3) that injures the plaintiff’s reputation or tends to injure the plaintiff in his or her occupation. Defamation includes the two torts of libel, which is written (CC §45), and slander, which is verbal (CC §46).
Slanderous statements are the most common type of defamation in the employment context and tend to directly injure the plaintiff with respect to his or her office, profession, trade, or business by imputing to the plaintiff “general disqualification in those respects which the office or other occupation peculiarly requires.” CC §46(3).
Employers may be held liable for a defamatory statement made by an employee under principles of respondeat superior and agency, but generally employees can’t sue coemployees for their conduct relating to “personnel actions,” e.g., termination, discipline, work assignments, and performance evaluation.
So what defenses can an employer raise if hit with a defamation claim?
- Truth. The affirmative defense of truth is a complete bar to the imposition of liability for defamation. In a typical employment case, the defendant employer has the burden of proof to prove the truth and the plaintiff employee normally has no burden to prove falsity unless the disputed statements involve matters of “public concern.”
- Privileged communication. Civil Code §47(c) provides a conditional or qualified privilege for communications made without malice in response to an innocent request in the common interest of the speaker and the listener. And there is an absolute privilege for publications made in:
- The proper discharge of an official duty (CC §47(a));
- Any legislative, judicial (or quasi-judicial), or other official proceeding authorized by law or, with certain exceptions, in the initiation or course of any other proceeding authorized by law (CC §47(b));
- A fair and true report in or communication to a public journal of a judicial, legislative, or other public official proceeding, of anything said in the course of the proceeding, or of a verified charge or complaint made to a public official (CC §47(d)(1)), except that any communication to a public journal is not privileged if it violates Cal Rules of Prof Cond 5–120, breaches a court order, or violates any confidentiality requirement imposed by law (CC §47(d)(2)); or
- A fair and true report of the proceedings of a public meeting or for public benefit (CC §47(e)).
- Consent. Consent to publication is a complete defense to a defamation claim. Consent applies whenever the defamatory statement is published at the plaintiff’s request. See, e.g., Royer v Steinberg (1979) 90 CA3d 490, 498 (plaintiff published in newspaper school board’s previously confidential letter of criticism justifying plaintiff’s demotion).
- Statement of opinion. The use of an “opinion” defense usually arises in an employment case when management has published the reasons for a termination either to other employees or to prospective employers, or management has expressed an opinion on performance, either as part of a formal review or in another similar context. The publication “must contain a false statement of fact,” not merely opinion, to give rise to liability for defamation. A cause of action for defamation will fail even when the employer’s perceptions about an employee’s performance are objectively wrong and can’t be supported by concrete provable facts. Jensen v Hewlett-Packard Co. (1993) 14 CA4th 958, 974.
For guidance on handling defamation and other tort claims in the wrongful termination context, turn to CEB’s Wrongful Employment Termination Practice: Discrimination, Harassment, and Retaliation, chap 7. On defamation actions generally, check out CEB’s California Tort Damages, chap 8.
Other CEBblog™ posts you may find useful:
- Lessons on Social Media in the Workplace
- 6 Steps to Evaluate a Wrongful Termination Case
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