In our practice, we get a lot of questions about “defamation” in the workplace. It is an unfortunate truth that many times people in the workplace say things that are not true. They spread rumors or gossip or they tell outright lies to supervisors. The outcome is that an employee gets fired, denied a promotion or is just made to feel unwelcome at work. This is the world of employment defamation.
What is defamation in the workplace?
As a matter of law, defamation consists of statements, written (which makes it libel) or oral (which makes it slander), that are knowingly false or intentionally misleading that cause a person to suffer an identifiable loss. In addition to this, the law imposes a requirement that for defamation to be actionable (i.e., you can sue someone for it) there has to have been publication to a third party. Publication is simply the act of telling, or publishing, that statement to another person.
How do I know if I have been defamed?
As a starting point, it is important to understand that employment defamation cases are very difficult. There are a number of proof obstacles and legal issues that have to be navigated successfully in order to prosecute a case.
Typically, defamation which creates liability exposure (i.e., you can sue or be sued for it) occurs in the context of job searches or references. For employees, this means that you are out looking for a job after having quit or been terminated from your previous job. You list your former employer on your resume or application and when a prospective employer calls your former employer, instead of being told something either accurate or generic, the prospective employer something that is false. This is the first issue to deal with in defamation cases: proving what was said. If the employee cannot prove what the former employer said, or if the former employer made an accurate statement, there is no claim for defamation. Even if the employee disagrees with the statement, unless the former employer knows it to be false, there is no claim for defamation.
The next key issue to overcome in this setting is to prove damages. Remember, the legal definition of defamation is that it causes you to suffer an identifiable loss. In the context of the job application process, that means that the statement by the former employer cost the employee a job with the prospective employer. If anything else was the cause of the job loss, or if you cannot prove the reason for the nonselection, an employment defamation claim will fail.
Some key questions to ask are:
- Did the prospective employer rely upon the false information in denying you employment?
- If they did, then can the employee show what the law calls “causation.” That is, did the defamatory conduct cause the job loss?
- Did your former employer know that the statement made was false, or did the former employer act recklessly, with disregard for the truth of the statement?
If these questions are answered affirmatively, then there may be an actionable claim for employment defamation. However, one final thought on employment defamation, Tennessee law gives employers what is known as a qualified immunity for job references.
Whether you consult with me or with some other experienced labor and employment attorney, before you prosecute or defend an employment defamation claim, it is critical that you speak with an attorney before addressing these issues.