One of the most frustrating things that can happen at work is being defamed / falsely accused of some type of serious violation, such as theft, fraud, or falsification of documents. When proven false, these types of false accusations can form a basis for a workplace defamation case (slander / libel) against the employer.
Generally, to make a claim for defamation, an employee must prove that an employer (1) published orally or in writing (2) a false statement of fact (and not just an opinion) that (3) damages an employee’s professional reputation or accuses him of crime; and (4) that statement 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 an 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 (slander), then you have established an oral publication, which counts just as much as written defamation (libel).
Opinion v Fact
The second element of a 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 an employee as lacking in motivation, not having a positive attitude, and sharing orally or in writing other subjective impressions can not be the basis for a defamation claim because these are in fact opinions. On the other hand, false factual statements, such as accusing an employee of stealing, committing fraud, engaging in violence at workplace, engaging in an extramarital affair at work, gross incompetence in his field, etc… can be sufficient to satisfy this “fact” element. The distinction between an opinion and a fact is one of the most commonly litigated aspects of defamation cases and the line between the two is often not nearly as bright as one would think.
Statement Damaging to Reputation
The third element of a defamation claim requires showing that the false statement in question damaged your reputation. Simply calling an employee an idiot, for instance, does not damage his professional reputation because it has no specific, underlying reference to his skills, competence, or honesty. On the other hand, accusing someone of being dishonest or not knowing how to do their job clearly undermines a professional reputation.
Was the Statement of Fact Published to a Third Party? If Not, Is The Evidence of “Malice” To Defeat Publication Privilege?
In many workplace defamation cases against employers, the statements are made internally and are not published to anyone outside that specific employer’s management circle. These statements are only actionable if an employee can prove that they were made for an improper purpose (malice) – i.e. with an intent to harm the victim of defamation on the part of the person who published those statements or with reckless disregard for the truth of the contents of that statement. Otherwise, these publications cannot be used as a basis for a defamation case against the employer.
There are several specific 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.).