Defamation involves the making of a false statement of fact about another person. Specifically, defamation is “a publication that is false, defamatory, unprivileged, and causes injury or damage.”
In the employment context, an action for defamation most often arises when an employee's former employer makes a false statement about the employee as a basis for the employee's termination (i.e. the employee committed theft), or in response to an inquiry about the employee by a prospective employer (i.e. the employee was terminated for drug abuse).
Defamatory statements about an employee – false statements of fact about the employee – are actionable because such statements damage an employee's reputation and can cause emotional distress, loss of employment, and/or impede an employee's ability to gain new employment.
What Are the Elements of a Defamation Cause of Action?
Defamation involves the following:
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A false, non-privileged publication of a statement of fact that:
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For a Written Statement (Libel) --Exposes an employee to “hatred, contempt, ridicule” or causes the employee “to be shunned or avoided,” or “has a tendency to injure the employee in his or her occupation;
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For an Oral Statement (Slander) – Charges the employees with a crime, loathsome disease, or tends to directly injure the plaintiff in his or her occupation.
AND
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Damages the employee's reputation.
What is a Publication?
A necessary element of defamation is that the defamatory statement must be communicated to a third party. Thus, a defamatory statement about an employee must be written or told to someone other than the employee.
Statement of Fact vs. Statement of Opinion
The defamatory statement must be one of fact, not opinion. It can be difficult to determine what is a statement of fact and what is a statement of opinion. The test for making this determination is whether a reasonable person could find that the statements imply knowledge of provably false facts.
Example:
Dave committed a crime. This is a statement of fact because it can be determined whether or not Dave committed a crime.
Dave was not a good employee. This is a statement of opinion. Different people can, and will have, different thoughts as to whether or not Dave was a good employee.
Is an Employer Liable for a Defamatory Statement Made About an Employee?
An employee's employer, or former employer, may be held liable for a defamatory statement made about the employee if the defamatory statement was made by the employee's supervisor or was made in the course and scope of the employee's employment.