Employers must be careful of not only what they say, but what they do, so as not to trigger employee defamation lawsuits. Issues surrounding defamation claims include offering negative references, definitions of qualified and conditional privilege, and steps that can lower defamation culpability.1. Can an employer give a negative reference without crossing the defamation line?
An employer can give a negative reference without crossing the defamation line. However, if the reference has any of the following characteristics, it may be called on the legal carpet:
False information is knowingly communicated.
There is reckless disregard for the truth.
The communicator acts out of malice.
The information is communicated to those without a need-to-know.
Harm to the employee resulted from the communication.
The receivers of the message understood the defamatory meaning of the message.
While many employers have resorted to limiting the information given out in references to verifying employment dates, titles, and salary history, you can be more explicit and still retain a modicum of protection from liability. The most important strategy to remember is to be truthful.Note: Some states have reference-checking laws. If this is the case, you would have to obey state law. To find out how your state handles this issue, you should contact your state's labor department.
2. What steps should an employer take to prevent a termination from turning into a defamation claim?
Besides minding your verbal communications, avoid actions that an employee may translate into a defamation claim. Keep these tips in mind when terminating an employee:
Terminate in private.
Forgo a security escort unless a terminated employee poses a risk to employees or company property.
Collect company belongings from a terminated employee behind closed doors or after hours.
Back up your decisions with sound reasons. Again, truth is the best defense against defamation.
Qualified privilege arises when an employer acts in good faith; has a legitimate interest in making or receiving the statement in question; reasonably limits the statement; and makes the statement in an appropriate manner and to individuals with a need-to-know.
Conditional privilege arises when both the persons making and receiving the statements have an important interest in the information.
Both qualified and conditional privilege allow employers to communicate information within their company without fear of being sued for defamation.4. What are some steps employers can take to reduce the risk of defamation claims?
Here are some additional tips for avoiding liability for defamation:
Select your words carefully. Don't allow your emotions to put your communications in legal peril.
Stick to the facts. Avoid embellishments, accusations, and exaggerations when communicating information about an employee.
Strike derogatory comments regarding employees from all memos, company publications, and meetings.
Avoid the temptation to use an employee as an example to other employees. Communicate policies to your workers, but don't vilify employees in the process.
Be careful of what you reveal about employees and to whom. In a defamation case, an employee must establish that the defamatory statements have been circulated to third parties.
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