"The price of justice is eternal publicity." Arnold Bennett

Defamation

 

A NEW CHAPTER DEFAMATION BLACKLISTING

A NEW CHAPTER

 

David Hurd is the author of the California Employee Survival Handbook. The following selection is a chapter exerpted from the new third edition ofthe book that will be released in 1998.

We believe that all employees will find this information both interesting and important. Many employees have no idea that they may have rights in the protection of their personal reputation that are much stronger than their rights to their jobs. At will employees can be terminated at any time for no reason. This book points out that even if your employer can terminate you they cannot ruin your good name or your reputation as an excuse for terminating you, or as a side effect of your termination. Pay particular attention to the section dealing with performance reviews. Very enlightening.

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DEFAMATION

Defamation is an injury to the reputation or character of someone resulting from the false statements or actions of another. Defamation is a false attack on your good name. Your good name is regarded as a proprietary interest, not a personal interest. Defamation is an improper and unlawful attack against your proprietary right to your good name, your reputation.

Defamation is a general term for the false attack on your character or reputation through either libel or slander. Libel is a term describing visual defamation, usually in the form of lies in print, or misleading or deceptive photographs.

Libel exposes or subjects you to hatred, contempt, ridicule, or disgrace, or causes you to be shunned or avoided, or injures you in your occupation.

Slander is a term describing defamation that you hear, not see, usually in the form of someone talking trash about you or spreading or repeating lies and unfounded rumor.

Slander is an oral statement that tends to injur you in respect to your office, profession, trade or business. The statement or statements generally suggest that you lack integrity, honesty, incompetence, or that you possess other reprehensible personal characteristics.

Defamation is an important concept to know for anyone working in California. Why? Because you may be an at-will employee subject to being terminated at any time for no reason, but if your employer, or his or her representative defames you, you will be entitled to sue for that attack on your reputation or character, even though you have no contractual right to your job and you would not be able to sue for wrongful termination based on a contractual theory. Furthermore, if the false attack on your character or reputation causes you to be terminated as a result you can sue for wrongful termination in violation of public policy, which will entitle you to seek damages far greater than the usual wrongful termination case based on contract. This means that if you were terminated as a result of the defamatory statement, you then will have the right to sue for wrongful termination in violation of public policy even though you were an at-will employee and you could have otherwise been terminated for no reason at any time.

A legal claim based on defamation entitles the victim to recover against the defamer for his or her emotional damages. In addition, the victim will be entitled to sue for punitive, or punishment, damages.

There are other critical differences which make defamation important to be aware of. You can prove defamation on your word alone, even though it is always better to have some confirming evidence. ( a letter, a memo, an e-mail, statements from fellow employees confirming the defamatory remarks about you, etc.) You can testify in court as to statements made by others about you. This means that the "hearsay" rule does not apply to the testimony in court which repeats defamatory statements.made out of court.

You do not have to prove damages in defamation cases. Damages are presumed. This means that you do not have to testify that you were emotionally destroyed or had to see a psychiatrist or other mental health specialist or doctor.

The defamatory comments do not have to be stated (this is described as being "published") to someone outside the company. Purely internal memorandums or comments that falsely attack you can be defamatory. If another employee heard or read the comment then the defamatory statement has been "published" sufficiently to support a charge of defamation.

Each repetition of a defamatory remark is a new injury. This means that you can obtain damages for each time the defamatory statement is repeated.

You may even be entitled to receive damages every time you repeat the defamatory comment to someone else! Yes, if it was reasonably foreseeable that you would feel compeled to repeat or explain the defamatory comment, your employer may be liable each time you repeated his comment!

For example, suppose your employer charges you with stealing or lack of loyalty to the company and you are terminated as a result of those false accusations. Suddenly you find yourself unemployed and looking for a new job. You feel compelled at interviews to explain why you can't offer a good referral from your prior employer.

"He said I stole from him, or he alleged that I wasn't loyal to the company."

Under these circumstances your repeated explanation of the defamatory comments may itself be defamation that you are entitled to be compensated for! See the additional discussion of this topic below.

The biggest problem in alleging defamation in the workplace is the concept of privilege. In some instances the defamer may be privileged or entitled to make the defamatory statements. It is not defamation if the person making the statement is privileged in doing so.

The defamer may have an absolute privilege for statements made in judicial proceedings, and a limited privilege for defamatory statements made in the employment relationship.

For example, suppose you have an overtime claim that you are pursuing in the office of the labor commissioner. In that hearing your employer says that you not paid certain overtime because you stole money and the employer felt thought that he could withhold overtime as compensation for that theft. At another time or place the statement by your employer would be slanderous if it were false, but in the context of the labor hearing the statement is absolutely privileged. No defamation results from the defamatory statements.

The privilege protects statements made before the beginning of a civil or criminal proceeding, if the statements are part of the "preparation" for that proceeding.

Anytime you have a proceeding that is judicial in nature, the statements made there are absolutely privileged. Most proceedings involving wage or job related claims are judicial in nature, and statements made in those hearings are privileged. This means that your employer may say things that are untrue, even if he knows that they are untrue, and says them intending to injure you or make you look bad, or ruin your reputation. He can do so without fear of being liable to you in any subsequent lawsuit against him. That is simply the way the system is set up. Defamatory statements made in an employment dispute before a government agency are absolutely privileged, and you are simply out of luck. Even though defamatory statements made in judicial proceedings are privileged, don't despair. There are many situations other than judicial, where the privilege is only partial, and that privilege can be lost under a number ofcircumstances.

In order for the defamer to be protected by the absolute privilege, at least one of the following four factors must be satisfied. Analyze these four factors to see whether statements made against you might not be protected. Absolute privilege is provided if;

  1. The statement was made in a judicial proceeding.
  2. The statement had some connection or logical relation to the judicial action.
  3. The statement was made to achieve the objects of the litigation.
  4. The statement involved litigants or other participants authorized by law.

Any doubts as to whether judicial privilege applies is decided in favor of the privilege. Although the privilege was meant to apply to defamation, the privilege applies to almost all personal injury claims, such as intentional or negligent infliction of emotional distress or interference with prospective advantage.

Probably the most important situation involving qualified privileges are those where your work is being evaluated in performance reviews or other evaluations of your conduct in the workplace.

Can your employer defame you in a performance review without being liable to you for defamation? Maybe. Maybe not. An employer loses his or her qualified privilege to make defamatory comments in critiquing you or your work when the defamatory statement is made,

  1. Without a good faith belief in the truth of the statement; or
  2. Without reasonable grounds for believing the truth of the statement; or
  3. With a motive or willingness to vex, harass, annoy, or unjure you; or
  4. Is exaggerated or not fully or fairly stated; or
  5. The result of a reckless investigation; or
  6. Motivated by hatred or ill will towards you.

Examples of statements that have been determined by the courts to be defamatory are those that involve; allegations of embezzlement, lying, irresponsibility, lack of integrity, dishonesty, laziness, incompetence, not being eligible for rehire, insubordination, being a traitor to the company, or having committed a criminal act.

As you can see, there are numerous situations where the employer risks losing his or her qualified privilege and if the privilege is lost, any publication of the false comment becomes defamatory and you will be entitled to damages for the injury to your reputation.

Other factors that may be considered in making a finding of defamation are whether the person making the statement knows or believes the statement to be true; whether the statement is the result of anger, jealousy, resentment, grudges, quarrels, ill-will or other conflict between you and the person making the statement.

In order to be defamatory the statement must be, of course, false. The employer has the burden of proving that the statement is not false In other words, the employer has to prove that the statement was true. The statement must also seem to state a fact, or that it is based on fact, rather than an opinion, or based only on opinion.

A statement made as a statement of opinion, rather than as an allegation of fact, is not defamatory.

Are statements made about you by a supervisor that are placed in your personnel file possibly libelous? If the statements are statements of opinion, rather than false statements of fact, they are not potentially libelous. The question to ask is, does the statement of opinion suggest that it is base on fact or is provable as a fact? Statements that may support a claim of libel are; false accusations of criminal conduct, lackof integrity, dishonesty, incompetence, or reprehensible personal moral behavior. For example, if you found in your personnel file, a false statement accusing you of suspected theft, such a statement would be libelous. Such a statement would imply to the average reader that it is confirmable as a fact, and is not just an unfounded personal opinion.

Be aware that a defamatory statement in your personnel file defames for as long as the statement exists in your file. What does this mean? This means that defamatory statements made 5, 10, or even 15 years ago, and placed in your personnel file may be subject to a lawsuit if they are still there in your file "attacking" your reputation or your good name up to the present time. The statute of limitations does not protect the employer on "old" statements that are still around to be seen or heard.

If you are an employee or supervisor-employee and you are accused of engaging in sexual harassment or some other offensive activity and the fact of the accusation is "published," your employer may be liable to you for defamation. If the employer notified other employees or other parties of the allegations against you , such conduct by the employer may be defamatory against you.

If you are defamed, the injury to your reputation affects a proprietary or "ownership" interest and is not a personal injury. This means that damages from defamation are not pre-empted by workers compensation. If the damages from defamation were thought to arise as a normal risk from the employment relationship and were regarded as a form of personal injury, rather than an injury to the "property" of your reputation, you would be forced to file a worker's compensation claim.You would not be able to sue in civil court.

As we mentioned earlier, an interesting situation that sometimes occurs is when the publication of the slanderous information is made by the employee being slandered, rather than by the employer. This is described as "self publication." For example, suppose your boss brings you into his or her office and informs you that you are no longer needed because he suspects that you are a drinker and he states that he does not regard you as competent in your work.. Suppose further that your employer makes these comments only to your direct manager, and repeats these comments to no one outside the company. Suppose after your boss informs you of these "facts," you feel compelled to tell your fellow employees what has happened to you. After all, everyone wants to know. Under these circumstances the employee himself publishes the defamatory statements.

Is your employer liable for slander when you have repeated and published the statements? Your employer will be liable where he or she knew or should have known that someone facing circumstances similar to yours would have been compelled to "self-publish" the defamatory statements, and dthe court asks is, was theid nothing to prevent it. The question self-publication foreseeable under the circumstances? If so, the employer may be liable. The difficulty with "self-publication" defamation for the employee is that the employee has the burden of proving that he or she was psychologically compelled to repeat or publish the defamatory statements.

What if you leave your old job for a new one and find out that your ex-employer has been saying bad things about you? Bad-mouthing an employee, or a former employee is known as "blacklisting" and is potentially illegalas a form of defamation just described..

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BLACKLISTING

It is illegal for an employer to make a misrepresentation which prevents or attempts to prevent a former employee from getting a new job. This rule applies to your employer, his agents or officers. A misrepresentation can include any act, suggestion or inference that leads the listener to believe something untruthful or misleading about the employee in question. It need not be a direct statement. Even gestures, or tone of voice, or a raising of an eyebrow could qualify as an illegal misrepresentation.

The real problem in blacklisting is proof, or rather, lack of proof. Very rarely will you have evidence that your old employer sabotaged you. More than likely, you will never discover anything other than you were suddenly terminated, or you didn't get the job that had seemed so promising moments before. This is one situation where an ounce of prevention is worth a couple of pounds of cure.

The best thing you can do for yourself to prevent being blacklisted is to obtain a written letter of recommendation or a job referral before you are terminated. If you have even the slightest feeling that something isn't going well, or that changes may be coming that might involve the elimination of your job, get a supervisor or the employer to sign a statement that you can use to present to a prospective new employer. You do not want the new employer calling your old one and permitting him or her the opportunity to damage you now that you are gone. Of course, often this is simply not feasible, and in such situations, you too may be compelled to "self publish" the defamatory story made against you in an attempt to disarm it.

If it is possible, present the good reference to the new employer yourself. The preferable situation is to write the letter of recommendation yourself and have the (ex-)employer sign it. This permits you the opportunity to make sure the right things are said about you. Be positive. You can omit mentioning your weak points but be truthful about what you do say. Find your good qualities and emphasize them. You will be surprised what your ex-employer will be willing to sign if he or she is presented with the choice at the moment that you are being terminated. The employer that doesn't like you still wishes to avoid a confrontation, or worse, a threat of legal action, and will make concessions to you in order to make you disappear.

Restrain any desire to "tell off" your employer. Obtain a letter of recommendation and leave. Never burn bridges if you can avoid it. He or she doesn't need to know how you feel.

If your old employer is a complete jerk and refuses to sign any letter for you, then present that information to the prospective employer at your earliest opportunity. Be straightforward. Tell the new employer that there was a conflict and that a positive referral is unlikely. By informing the new employer, you have lessened the impact of a bad referral by making it anticipated.You have also possibly "self published" and yourstatement would be admissable in court to establish that you have been defamed by your own disclosure of the original false statement that was made against you.

If an employer volunteers to another person or another employer, the reason or reasons, for an employee's discharge or reason for quitting-that employer is guilty of a crime. The employer will also be liable to you for triple damages in a civil lawsuit. The rule applies to the past employer, or agent, employee, superintendent, or manager of the past employer.

The past employer is only permitted to disclose the truthful reasons for the discharge or voluntary termination of the employee if the past employer is specifically asked without prompting.

 

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