A defamation lawsuit will generally arise out of the administration of performance reviews, background checks, reference checks, workplace investigations, and comments about in-process litigation.
A defamation lawsuit deals with one or both of the following: written defamation (libel) or oral defamation (slander) and will vary based on state laws.
As an example under California law, defamation is a false statement made about another person that harms the person’s reputation.
In a defamation lawsuit, the employee usually must prove damage to his/her profession or occupation. However, sometimes the statements are so controversial that the words alone are deemed to cause harm and suggest that the person is unfit professionally to hold a job (e.g., a false statement that an employee “sexually assaulted another employee”).
In many situations, companies put themselves at risk of defamation by “looking the other way” relative to the company gossip or rumour mill. To protect the company, here are some guidelines to follow:
#1 Never discuss an employee issue with anyone outside the supervisory chain of command for that employee.
#2 Centralize all employment references through one department, usually HR.
#3 Establish a written policy on references and if you provide anything more than dates of employment and positions held, then be sure to:
a) Receive a release from the former employee.
b) Only accept reference questions in writing.
c) Only respond in writing to reference questions, never respond verbally.
#4 Train supervisors to never comment verbally or in writing (e.g., emails, tweets, etc.) with statements such as “he is stupid and crazy,” “her actions were felonious,” “he was fired for bullying,” etc.
#5 Develop a standard announcement whenever an employee leaves the company, voluntarily or involuntarily. If you have one announcement for resignations and another for terminations, employees will quickly catch on as to who was fired.
#6 Avoid abstract terms in performance evaluations and disciplinary action such as “not professional,” “poor listener,” “not a team player,” etc. Rather, specifically identify the behaviour that was observed without trying to “give it a name.”
#7 Be sure that all cases involving performance, harassment, discrimination, and retaliation are thoroughly investigated and that the conclusions are reasonable and consistent with past practices.
#8 Never make comments about in-process litigation or ongoing legal proceedings involving current or former employees.
The natural defence for defamation is the truth.
Companies in many states such as PA are allowed to provide factual references that are not malicious or intended to harm a person’s reputation. That being said, the safest course for references is the old, “name, rank, and serial number” (i.e., dates of employment and positions held) line.
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