Defamation happens when someone makes an intentionally false statement about another that causes harm or damages that other person’s reputation. When defamation is written or recorded, it is called libel. When the defamatory statement is verbal only, it is called slander.
Employment defamation is a legal issue involving false statements about an employee (whether current or former) that harm that employee’s ability to maintain their current job or seek a new position. This issue most commonly comes up when a prospective employer tries to verify a candidate’s background by seeking a reference from the candidate’s current or former manager or employer.
If an employer or former employer lies about you in their job reference, and that statement hurts your chances of getting a job or damages your reputation, you may have a legal claim for defamation.
Another way employment defamation may occur is if an employer (or other person, like a coworker) makes defamatory statements in the workplace such that the employee either is fired by the company. Another situation is where the statements have created such a hostile work environment that the employee has no other choice but to resign. In these cases, the employee may consult an attorney to see if they can file a wrongful termination lawsuit.
In order to prove a defamation case in court, the plaintiff must show specific elements regarding the circumstances of the case. These elements include:
- The employer made a false statement of fact about the employee. The statement must be a statement of fact; opinions cannot be the basis of defamation. “I think Sue lacked work ethic” is a statement of opinion. “Sue stole company property and lied about it” is a statement of fact. The statement must also be false;
- The statement was published or made to a third party who understood the statement, and the employer knew or should have known that the statement was false. If the employer believes in good faith that the statement was true, there is no claim for defamation. However, if the employer acts with “reckless disregard” for the truth, there may still be a claim; and
- The statement caused measurable damage to the employee’s reputation. This is important, because if there was no harm done, then there is nothing to correct by filing a lawsuit. The employee must show that the statements caused them some kind of harm or damage in order to succeed in a defamation lawsuit.
Defamation can operate in a variety of ways when it comes to the workplace. When it comes to the defamatory statement, it matters less who makes the statement, and more about the truthfulness of the statement and how it impacts the employee.
Here are some examples:
- A former supervisor telling a prospective employer that Sue stole from the business while she was employed with them — except Sue didn’t steal anything. As a result of the supervisor’s statement, the prospective employer decides to hire a different candidate, and Sue loses out on the job.
- A co-worker tells the supervisor that Sue lied on her job application — which leads the supervisor to start an investigation, and Sue is suspended without pay for several weeks until the investigation is finished. Sue never lied on her job application.
- Sue’s ex-husband tells a prospective employer that she sleeps around, drinks to excess, and cannot be trusted. None of these things are true. The employer decides not to hire Sue.
In all three of these situations, Sue is the victim of defamatory statements that have affected her job opportunities, impacted her reputation, and caused her harm. It would be in her best interests to consult an attorney to evaluate her chances in a defamation lawsuit.
Truth is always a defense to defamation — if the statement in question is untrue, then the statement counts as defamation. However, if the statement is true (even if it puts the employee in a negative light), that would not be defamation. For example, if the employee was fired because they were caught stealing from the company, providing this information to a future employer would not be defamation, because it would be true.
An exception to employment defamation may involve circumstances where an employer provides a bad reference. Many states offer protection to employers who give bad references if those employers are acting in good faith. However, employers who intentionally provide false information (or act recklessly with regard to the truth) regarding former employees may find themselves involved in a defamation lawsuit.
If you believe that you have been wrongfully terminated or lost a prospective job opportunity due to a slanderous or libelous statement, contact a personal injury lawyer or an employment lawyer. The right lawyer in your area can help you sort through the situation and determine the strength of the evidence for a defamation case.
A lawyer can also draft the appropriate documents to file with the courts and help you navigate the legal system, getting you the best possible outcome under the circumstances of your case.