Defamation by an Employer

Defamation is a false statement made by one person about another that unfairly harms their reputation. The statement may be made in either oral or written communication. In some states, the law of defamation distinguishes between slander, which is spoken defamation, and libel, which is defamation in writing. In the United States, the law of false light also protects against statements which are not technically false but are misleading

An example of defamation is when an employer injures a former employee’s reputation by making factually false statements, not just expressions of opinion, about that employee, perhaps in giving references. The employee may then sue the employer for defamation.

How to Establish a Case of Defamation against a Former Employer?

There are five elements that must be proven by the employee to succeed in a defamation case against a former employer. They are as follows:

• The employer communicated a defamatory statement: A statement is considered defamatory if it harms the former employee’s reputation by lowering them in the estimation of the community. Or, if it deters third parties from associating or dealing with employee, e.g. by hiring them;
• The employer communicated the defamatory statement to a third party: The communication may be oral or in writing;
• The employer’s statement was false: The duty to prove that a defamatory statement is false lies with the former employee. They must show specific facts demonstrating that their former employer’s statements were not grounded in the truth;
• The employer was at fault in making the false statement: The fault an employee must prove would be the employer’s malice, that is an intent to injure the employee, or recklessness, which would be a casual indifference to the possibility for injury;
• The false statement caused injury to the employee’s reputation: An employee must prove that his injuries would not have occurred if not for his employer’s false defamatory statements. The employee must prove damages.

What Are Some Examples of Defamation by an Employer?

Defamation must be representations of fact that are false. Communicating a negative opinion about someone is not actionable defamation. So, for example, a statement to the effect that a person is a “real jerk with anger management issues” is an opinion, not a statement of fact.

Certain kinds of factual allegations are considered to be defamatory without question. In the law they constitute defamation per se. They are assumed to harm a person’s reputation, without further requirement for proving harm.

Statements are defamatory per se where they falsely attribute to the person one or more of the following:

• Criminal Offense: A statement to the effect that a person committed a criminal offense: So, for example, if a former employer were to tell a prospective employer that a former employee stole things from work when in fact the person had done no such thing, this would be libelous;
• Loathsome Disease: A statement to the effect that a person has a loathsome disease: For example, a previous employer telling a prospective employer that a form employee had come to work with Covid-19 or had tested positive for HIV or came to work drunk 9 days out of 10 would be clearly libelous;
• Business, Trade, Profession or Office: A statement about some conduct that would be incompatible with a person’s business, trade, profession, or office: A previous employer making a statement to a prospective employer about a former employee that the person in fact lacked a license necessary for their profession or some other false factual allegation of the type would be libelous;
• Serious Sexual Misconduct: Alleging that a person committed some sort of serious sexual misconduct: A former employer falsely claiming that a former employee engaged in serious sexual misconduct on the job would be libelous.

Statements of this type, especially if clearly false, would allow a jury to conclude that the employer made them with an intent to injure the employee or at best, with a clear reckless disregard for any harm that might be done.

It is important to note that a person is unlikely to succeed in a defamation suit against a former employer if the employer simply provided a reference upon request, especially if the reference disclosed the employee’s actual performance ratings and other materials from their record of employment with the employer. An employee must prove that a former employer, either recklessly or intentionally, gave a reference that incorporated false information. An employee cannot sue because their former employer did not provide a reference or gave a poor one, especially if the employee’s performance on the job justified the assessment.

The truth of allegedly defamatory statements is always a defense to a charge of defamation.

Some states, including North Carolina, for example, grant employers immunity from civil liability for revealing information about both current and former employees. The employer has immunity unless the employee can prove by a preponderance of the evidence that the employer knowingly provided false information or information that he or she should have known was false. Of course, if the employer provided false information or information they should have known was false, then they could be liable for defamation.

Although many states protect employers, most employers will provide only minimal information, such as the employment dates, the title of your position, and the date a person left the company. A previous employer usually prefers to act in such a way as to avoid potential defamation claims.

How Do I Find Out If a Former Employer Is Making False Statements about Me?

Unless a person is lucky and some prospective lawyer informs them that a former employer is making slanderous statements about them, there are a few ways to try to confirm that a former employer is sabotaging a person’s job search.

• Use a Reference-Check Company: An industry has grown up to provide this type of service, i.e., reference-checking companies. One can do an on-line search for “Employment Reference Check” and find a company that will, for a fee, pretend to be an employer checking the person’s reference;
• Have a Friend Ask for a Reference: Another common method of reference-checking is to have a friend contact a former employer and ask for a reference. It would be best if the friend has some experience in doing this kind of thing and some knowledge about how it is done professionally;
• Personal Inquiry: It is good practice to ask a former or current employer what kind of a reference they would give for a person should the need arise. So, even if a person may have left a job on bad terms, a person can ask if they could use the employer as a reference and if so, what the reference would indicate. If the employer says that they would have nothing good to say, then a person should not list the employer as a reference when asked;
• Have an Attorney Send a “Cease-and-Desist” Letter: If a person should learn that a former employer is making defamatory statements, a person could have a lawyer cease and desist” letter demanding that the former employer stop saying false, negative or damaging statements about the person. A person would want to review their situation with the attorney and review options for dealing with the situation.

Do I Need an Attorney?

A defamation lawsuit presents some significant challenges and it would be best to proceed with an experienced lawyer for defamation lawsuits. One challenge is confirming that a former employer is making libelous statements. Then it must be determined whether the libelous statements are defamation per se. You would want to review options with a lawyer. If a former employer is saying bad things that are not necessarily libelous, an experienced personal injury lawyer might offer options short of suing that could resolve the situation. Negative references, especially if false or unfair, can be a serious problem. You would deal with the issue most effectively by consulting with a qualified attorney.