One of the more frustrating things that can happen to an employee at work is being a victim of workplace defamation. This mean being falsely accused of a serious violation. This violation can be theft, fraud or falsification of documents or some other type of crime. Often, such incidents, especially if they lead to termination, give rise a defamation (slander / libel) claim.
Generally, to make a claim for defamation, an employee must prove that an employer (1) published orally or in writing (2) a statement of fact (and not an opinion) that (3) damages an employee’s professional reputation or accuses him of crime; and (4) statement which is not privileged within the meaning of the law.
Existence of Publication
Usually, publication is not an issue. If you have evidence of a written publication of a false accusation such as e-mail or an article or a document, then you established that element. If you have a witness who heard the defamatory statement being made orally, then you have established an oral publication, which counts just as much as written defamation.
Opinion v Fact
The second element of workplace defamation claim is more tricky. Is the statement made an opinion or a fact. If it’s a statement of opinion, no defamation claim can be made. For example, describing as an employee as lacking in motivation, not having a positive attitude, and other subjective impressions can not be the basis for defamation claim. On the other hand, false factual statements, such as accusing an employee of theft, fraud, violence at workplace, incompetence in his field, etc… can be grounds for defamation.
Statement Damaging to Reputation
The third element of workplace defamation claim means that the false statement must damage your reputation. Simply calling an employee an idiot, for instance, does not damage his professional reputation because it has no underlying reference to his skills or competence or honesty. On the other hand, again – accusing someone of being dishonest or incompetent clearly undermines a professional reputation.
Was the Statement of Fact Published to a Third Party
The fourth element of workplace defamation claim is the one that’s challenged most often by the employer-defendant. In many defamation cases against employers, the statements are made internally. These statements are only actionable if an employee can prove that they were made for improper purpose (malice) – i.e. with an intent to harm on the part of the person who published. Otherwise, these publications cannot be used as a basis for a defamation case against the employer.
There is a number of ways in which malice can be proven. The most common ways of showing malice are (1) showing history of prior conflicts or quarrels between the defamed employee and those who defamed him, and (2) gross and obvious failure to investigate the accusations that lead to false statements being made about an employee. Making sure that there is sufficient evidence of malice before filing a defamation lawsuit is a critical threshold step in any defamation case that involves internal publication.
As illustrated above, workplace defamation claims are very technical. Many legal defenses exist that would relieve employers from liability for defaming an employee and would lead to a case dismissal. Therefore, it is very important to carefully and thoroughly evaluate a potential defamation claim and ensure that the employer’s defenses do not apply to any specific situation before filing a defamation lawsuit.
Sometimes, a defamation claim is the only way for a terminated employee to bring a case against his employer in court. This is typical in situations where an at-will employee is terminated for non-discriminatory or non-retaliatory reasons based on false accusation (i.e. of stealing merchandise, etc.).