Defamation Lawsuit Defense for Employers

Experienced Employer Defense Counsel for Employee and Former Employee Defamation Claims

Elizabeth K. Stepp
Defamation Lawsuit Defense for Employers Team Lead
Partner & Yale Graduate

Employers can face workplace defamation claims in a wide range of circumstances. Employers can face defamation claims from former employees in a wide range of circumstances as well. When facing these claims, an informed and strategic defense is essential. Not all negative statements about current and former employees warrant employer liability, and state defamation laws provide a variety of other complete defenses to defamation as well.

At Oberheiden P.C., we have extensive experience defending companies in employment-related litigation. If your company is facing legal action involving allegations of oral or written defamation (slander or libel) from a current or former employee, we can provide strategic defense representation. We handle cases involving prospective employer references, pay raises and promotions, employee terminations, and all other workplace defamation-related matters, and we can get to work on your company’s defenses to defamation immediately if necessary.

Workplace Defamation Claims Involving False Statements and False Accusations

When current and former employees allege that they have been harmed by an employer’s oral or written statements, it is up to these individuals to prove workplace defamation. They must also be able to prove actual damages in order to substantiate a defamation lawsuit. If a current or former employee cannot prove that an employer or former employer made a defamatory statement, or if a current or former employee cannot prove actual damages, then no legal or equitable remedies are warranted.

To prove workplace defamation, a current or former employee must generally be able to establish the following:

1. Defamatory Statement

Proving a workplace defamation claim against a current or former employer starts with proving that the employer made a defamatory statement. For a statement to be considered defamatory (and to justify a defamation lawsuit), the statement must be both harmful and false. A true statement cannot be defamatory. As discussed in greater detail below, it must also be of such importance that it negatively impacts the current or former employee’s finances—whether through the loss of a job, pay raise, promotion, or job opportunity.

While actual malice or reckless disregard for the truth may be required in certain types of defamation cases, these generally aren’t required in a defamation case involving an employee’s rights. In other words, a current or former employee generally does not need to prove actual malice or reckless disregard in order to prove defamation—negligence on the part of his or her current or former employer is enough.

2. Unprivileged Content (No Qualified Privilege)

To file a successful workplace defamation claim, a current or former employee must also be able to establish that the allegedly defamatory statement was unprivileged. Employers generally enjoy a qualified privilege that allows them to provide candid references to prospective employers, as well as to have internal discussions regarding employment-related matters.

As discussed in greater detail below, asserting the employer’s qualified privilege can be a key defense strategy in workplace defamation lawsuits. While employees generally do not need to be able to prove actual malice or reckless disregard, they do need to be able to affirmatively establish that the employer’s qualified privilege does not apply.

3. Publication

Under state defamation laws, publication is also generally an element of a claim for liability in the employment context. When alleging that a current or former employer has made negative statements or false accusations, an employee must also allege that the current or former employer made these negative statements or false accusations to another party. If an employee’s manager negligently holds a false belief and makes an employment-related decision based on this belief without communicating with another party, this does not constitute defamation.

4. Reference to the Employee

To constitute defamation, a negative statement or false accusation must also specifically reference the employee who is the subject of the alleged defamatory statement. General statements are not enough to warrant liability. As with the other elements of a defamation claim discussed here, this applies to claims involving both alleged written defamation (libel) and alleged spoken defamation (slander).

5. Financial Loss (Actual Damages)

Finally, a current or former employee alleging workplace defamation must be able to prove financial loss. Specifically, the current or former employee must be able to prove actual damages sustained as a result of his or her employer’s defamatory conduct. This financial loss could be the result of a negative job reference, or it could be the result of being denied an internal job opportunity or facing termination.

Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester

Former U.S. Attorney

Hon. Kevin McCarthy

55th Speaker, U.S. House of Representatives (ret.)

Government Consultant

Mike Pompeo

Of Counsel

Former U.S. Secretary of State

John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara

Federal Appeals Attorney

Nicholas B. Johnson

Former Prosecutor

Roger Bach

Former Special Agent (DOJ)

Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen

Former Supervisory Special Agent (FBI)

Oral and Written Statements that May Constitute Defamation

We’ve touched on this already, but it is worth emphasizing—because it is becoming increasingly important with employees recording interactions with their cell phones and meetings taking place via Zoom and other platforms. Both oral and written statements can constitute defamation. If an employee’s manager or another member of a company’s senior leadership makes false statements that constitute defamation and those statements are recorded, they could potentially serve as grounds for a defamation lawsuit.

Likewise, internal written communications, letters to prospective employers, and other documented false statements can support current and former employees’ defamation claims as well. When facing a defamation lawsuit, it is critical to conduct a thorough investigation and identify all potentially relevant communications before shifting focus to building a successful defense strategy.

Defenses to Defamation in Employer-Employee Disputes

When facing allegations of defamatory conduct from current and former employees, employers may have a variety of defenses available. While the specific defenses that are available vary by jurisdiction, generally speaking, potential defenses to defamation include:

Qualified privilege
Truthful statement or substantial truth
False accusations of defamation
No actual damages
Insufficient proof of liability

Depending on the circumstances at hand, each of these could potentially serve as a complete defense to a workplace defamation claim. When you engage Oberheiden P.C. to represent your company, our defense lawyers will evaluate all potential defenses and work to build a comprehensive and cohesive defense strategy. We understand what your company has at stake—both in terms of financial risk and reputational harm—and we will use our experience to target a favorable resolution as efficiently as possible.

FAQs: Protecting Your Company During a Defamation Case

Can an Employee’s Termination Give Rise to a Defamation Lawsuit?

Yes, an employee’s termination can give rise to a defamation lawsuit in some cases. However, in order for an employee’s termination to justify a defamation claim, the termination must be based on false statements communicated within the organization. As discussed above, by definition, a true statement cannot be defamatory. In this scenario, the employer could face vicarious liability for the false statement made by a member of its organization.

Can Statements Made to an Employee’s Future Employer Give Rise to a Defamation Claim?

Yes, statements made to an employee’s future employer (or a prospective employer) can also give rise to a defamation claim in some circumstances–provided they are not true statements. If an employer’s negative reference or other negative statements are not protected under the qualified privilege doctrine, then a defamation lawsuit may be warranted if the negative reference or negative statements cause harm to the employee’s reputation. As a result, when providing references, former employers must be careful to ensure that their statements made to prospective employers are accurate, and they should clearly document the specific information they provide. Otherwise, they may be liable for their employees’ actual damages resulting from their written or spoken defamation.

What is the Qualified Privilege in Employer Defamation Lawsuits?

In lawsuits against employers seeking to recover damages, the qualified privilege can serve as a complete defense to defamation. Broadly, the qualified privilege protects statements that are necessary for a specific purpose—such as making employment-related decisions. If an employer provides information to another party that has a legitimate interest in the information, the qualified privilege will typically apply. However, the qualified privilege generally does not excuse making false statements that are not made in good faith.

Do All Negative Statements Give Rise to Employee Defamation Claims?

No, all negative statements do not give rise to employee defamation claims. To constitute defamation, a negative statement must be both harmful and false, and it must not be subject to any complete defenses to defamation in the employment context, such as qualified immunity. As a result, employers can freely share truthful negative information and make other truthful statements about a current or former employee’s job performance or conduct—although they will want to be careful to ensure that the truthfulness of their statements is clearly documented.

Is Lack of Actual Malice a Defense to an Employee Defamation Lawsuit?

Lack of actual malice generally is not a defense to an employee defamation lawsuit—because actual malice generally is not an element of a defamation claim in this context. In most cases, negligence is sufficient to substantiate a workplace defamation claim against a current or former employer and recover damages based on harm to an employee’s reputation. With that said, exceptions apply in some cases (and in certain jurisdictions), and it is imperative that employers build their defense strategies based on both the specific facts at hand and the specific defamation laws that apply.

Is Your Company Facing a Workplace Defamation Lawsuit? Contact Us for a Complimentary Consultation Today

If your company is facing a workplace defamation lawsuit—or if you have concerns about facing a workplace defamation lawsuit from a current or former employee—we encourage you to contact us promptly for more information. To speak with a senior employer defense attorney at Oberheiden P.C. in confidence, please call 888-680-1745 or request a complimentary consultation online today.