Defamation in the Workplace: Don’t Get in Trouble

Defamation in the workplace is no different than defamation outside the workplace. The problem is not that there is some legal difference between the two, but rather, that the workplace brings forth unique situations that can be tricky for employers.

The Problem at Work

As an employer, you have an obligation to say what you believe is the truth about your employees; specifically, about their performance or their work backgrounds. You may have to give bad news to an employee, like explaining why the employee didn’t get a promotion or advancement.

And then you may specifically be called upon to speak about employees through letters of reference or calls from others, asking you for a reference for a former employee.

You want to, and feel you have the obligation to be honest, but you also don’t want to get yourself or your business sued for defamation.

Can You be Sued?

It is legally possible for an employee to sue an employer for defamation, so yes, you do need to be careful what you say and how.

Defamation is technically written (libel) or spoken (slander) words said to another person (a third party) that is a false assertion of a fact. That means that you would be best served by trying to couch things you say about an employee, in terms of an opinion. Obviously, be careful; “I think you’re stealing from the company” does not become a protected opinion just because you said “I think.”

Fact or truth is always a defense to defamation. Hopefully, you’ve documented things in your file that back up what you’re saying about the employee; if you say they’re always late, you hopefully have hard documentation of the days the employee was in fact late.

Qualified Privilege to the Rescue

The good news for employers is that there is some qualified privilege for the things that employers say about employees in the course of official duties, which does include giving reference or reference letters.

Immunity or privilege means that you cannot be sued for defamation, unless the defamatory statement was made intentionally, with ill will, or with malice.

So, if you were to give a bad performance review to a former employee to “get back” at him or her for leaving your business, that could be seen as malice and you could be liable if you defame that employee, even accidentally. But routine statements made in good faith as part of your duties, like giving an honestly bad review of a former employee to a potential new employer, would be protected.

The same goes for any other communication made in good faith, and which may be necessary to perform job duties. An example might be something that is said or written in the course of an internal investigation into wrongdoing or liability.

Remember to have defamation, someone else must hear or read it. It is never defamation to just tell an employee something about that employee, directly.

Call our West Palm Beach commercial litigation lawyers at Pike & Lustig to help you if you have a possible defamation case or question.