Think before you speak: workplace defamation

Journal Record, The (Oklahoma City), Apr 20, 2000 by Christin Stefani

The phrase "think before you speak" has significance because it could prevent your company from becoming involved in a lawsuit.

More and more, employees are suing their company and supervisor for defamation resulting from employee evaluations or terminations. Any company, no matter how small, would justifiably be concerned with the legal issues associated with defamation.

Defamation occurs when one injures the good reputation of another through written statements (libel) or oral statements (slander). The four requirements of defamation are:

* A false communication concerning another.

* An unprivileged publication to a third-party fault.

* By failing to know or investigate the truths of the communication.

* Injury to the individual's reputation.

Although defamation lawsuits often result from communications made at work, a qualified privilege attaches to intracompany communications.

The privilege protects the communicator by rendering otherwise actionable defamatory statements unactionable for the purposes of liability. Under these circumstances, public interest is served by shielding certain communications, though possibly defamatory, from litigation, rather than risk stifling them altogether.

Generally, intracompany communications include those made in the usual course of business to those who are entitled to receive it.

Although there is no clear test delineating which communications are entitled to the qualified privilege, courts typically protect those made with respect to business or employment made in good faith and between individuals with a corresponding interest in the subject matter of the communications.

For instance, communications between participants at a stockholders' meeting, officers of a corporation, officers and employees, agents of a corporation, and an employer and his employees.

On the other hand, a privileged communication may still constitute defamation under some circumstances. The intracompany privilege is lost if the plaintiff can demonstrate that the communication was made with one or more of the following:

* Malice (desire to inflict injury).

* Ill will.

* With knowledge of the statement's falsity.

* With reckless disregard of their accuracy.

Often the qualified privilege is invoked to protect accusations or comments as to the cause of an employee's discharge. In one case, a company instituted a program to assess all employees. The supervisor generated three evaluations concerning the employee's substandard work and held discussions between corporate managers and the employee.

Continued dissatisfaction in work product prompted the employee's termination. Because the evaluations contained a falsity, the employee claimed the evaluations were defamatory.

The court determined that the employee failed to demonstrate an abuse of the privilege for two reasons. First, evidence failed to support that the supervisor disbelieved his statements.

Simply denying the factual content of the supervisor's evaluation was not enough to base a claim. Second, the employee failed to allege that the supervisor harbored ill will toward him. Therefore, the employee raised no issues of credibility regarding the supervisor; thus, the qualified privilege was not abused.

In the alternative, several lawsuits against corporations have been successful because the employers abused the qualified privilege. In one case, although an employee's work performance was above standards, his supervisor personally disliked him. This triggered the supervisor to draft two letters containing unsubstantiated insubordination charges.

The court explained that a conditional privilege applied because the defamer had a duty and acted within the scope of employment when drafting the letters to the plaintiff. However, the supervisor exceeded the bounds of the qualified privilege since he failed to act in good faith. The plaintiff demonstrated malice in two ways. First, the supervisor published the letters knowing the accusations were false. Second, the supervisor acted with reckless disregard for the truth since he made no attempt to verify the accuracy of the letters before publishing the content to other corporate officers.

Further, the privilege is also abused when false accusations involve criminal activity. For instance, in another lawsuit, a corporation's board of directors falsely accused the plaintiff of drug abuse and misappropriating company funds. Consequently, employees and other supervisors shunned the plaintiff until she quit her job.

The court found that the defendants made statements lacking good faith and with motives to disparage the plaintiff.

Falsely accusing the plaintiff of drug abuse and misappropriating funds constituted criminality and lack of integrity, which damaged the plaintiff's professional reputation. Thus, the corporation was held liable for the defamatory statements.

In conclusion, to safeguard yourself and your company from a defamation lawsuit, it is important to keep in mind a few important facts.

In Oklahoma, the qualified privilege exempts an employer from liability for defamatory statements about an employee as long as the statements are made in good faith and for a legitimate purpose. The employer's privilege is not lost as long as he or she substantially believes in the truth of the communication.