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Defamation and Slander
So when you speak to an Employment lawyer about a possible defamation case, the lawyer is thinking about whether you might really have a better case about the following:
A pure defamation case would be a case where you are suing for the defamation, rather than suing for retaliation or wrongful termination or breach of contract or something else. It’s very tough to prove a pure defamation case, so lawyers look hard to find a stronger type of case.
If the employer is saying bad things about you to others, he is hurting your chances to find new work, and he apparently has animosity toward you.
If his motive is, for example, “retaliation”, then he may be violating the retaliation laws even if the things he says are not technically “defamation.” That’s why lawyers look for other things to sue over, even though you might think the only reason to sue is “defamation.”
Elements of a defamation case:
Publication means that someone said a defamatory thing to someone else, and they did not have the “privilege” to be saying such things to the other person.
Management-level employees are generally privileged to speak among themselves about you, and to render harsh opinions about you to each other, and to report to each other about things you may have said or done, and such communications are not generally defamatory, because the communications are privileged.
If management employees knowingly lie about you to other managers, or encourage anyone to tell lies about you, or if management employees say untrue things about you to non-management employees, the privilege can be lost. It gets very complicated.
If you use the former employer as a reference, and the new employer checks the reference, you have given the former employer the “privilege” of speaking about you to a potential new employer.
The thing said must be knowingly false, or must be in reckless disregard of whether true or false (and is actually false). “He is a drug addict” is defamatory if the speaker has no basis for the remark.
But if the alleged defamation consists of an opinion, even a very harsh opinion, lawyers have a tough time showing that the opinion is in fact false – it’s someone’s opinion. Example: “He was an unreliable employee and I would not rehire him; he missed work 10 times in the last 6 months without calling in before his shift started.” That’s harsh, but it is arguably not defamatory, because the opinion seems to be based on real provable facts about absenteeism.
You pretty much have to show that the opinion was formed in bad faith, based on things that the speaker knew were untrue, or that the opinion was otherwise not honest. It’s possible to make that proof. For example, let’s say the employer does not give a harsh reference about other employees who missed 10 or more days without calling in early. So you might be able to prove that the employer’s harsh opinion about you was not really based on the absenteeism at all. If the harsh opinion is secretly based on punishing you for “protected activity” (see my Retaliation article), then the employer may be guilty of illegal retaliation, as well as possibly defamation.
The defamation must have caused provable damage, either financial loss or a provable reduction in the esteem with which others hold the person defamed. When you lose out on a job opportunity due to the defamation then you have clearly been damaged. But it’s usually difficult to get a potential new employer to admit that the reason he didn’t hire you was a bad reference. People don’t want to get drawn into litigation, so they lie and say that the position is no longer open, or got filled while you were still going through the application process.
If you have not been financially damaged from the defamation, the waters get murkier in proving that anyone thinks less of you based on the defamation. A classic case illustrating this concept is the case where Reverend Jerry Falwell sued a men’s magazine over a parody article that accused Falwell of having relations with his mother in an out house. Falwell sued for a form of defamation called “libel” (because the defamation was printed and published). When Falwell testified, he was asked whether anyone whose opinions he valued might have truly believed the allegations in the article. Falwell said he did not think anyone would believe the allegations. Therefore, Falwell admitted he was not damaged by the alleged defamation.
My former employer said something evil about me to another employer, and now I can’t get hired.
The underlying facts of the most common inquiry are usually as follows:
In most cases, the caller described above will have big problems prosecuting a defamation case. There are many legal issues that work against the caller. Perhaps the biggest problem is that the employer’s harsh opinion may be an honest opinion (even if he is wrong). The next problem is that the caller in effect invited the former employer to give the harsh opinion, by listing the former employer as a reference on the new employer’s application form and probably signing an authorization for the new employer to do a reference check.
If you invite the former employer to speak about you, you give him a “privilege” to say truthful things and render good faith opinions (even if the opinions are harsh). That privilege is a strong defense in court, because it can destroy the element of “publication.” No publication occurred (legally speaking) if you invited the harsh comments. The “privilege” I referred to can be lost, though, if the employer told lies about you or gave bad-faith harsh opinions. The judge does not have to give the former employer the benefit of the privilege. In addition, an interesting legal doctrine is emerging, called “Compelled Self Defamation” that lawyers hope will eventually be developed into a good way to consistently punch through the “privilege” defense even when you have “invited” the defamation. It gets complicated.
I hope the above has not been too confusing. Call a lawyer if you think you might have been defamed.
If you think your former employer is calling people and spreading rumors about you, without waiting to be asked to give a reference, then you may have a particularly interesting scenario.
The reference letter law is RSMo 290.152. In a nutshell, the law says that if the employer chooses to write a reference letter in response to a request from a potential new employer, and writes it like a service letter, and sends you a copy, then the employer is immune from punitive damages if the reference letter lies about the nature and character of your service or lies about the reason you got fired or quit.
As of the time of this writing, I am not aware of any appellate court cases interpreting the Reference Letter Law, and I have not received any inquiries about it. I suspect employers are not taking advantage of it, because of the prevalence of “neutral employment references.” A neutral employment reference is essentially as follows: He worked here from this date to that date. His last job title was this. His final rate of pay was that. It’s hard to get sued for defamation when you don’t say anything controversial about anyone.
Article written by | Tim Willoughby
Maintained by Attorney Phil Willoughby
Founded by Tim Willoughby, Esq. (1959-2013)
Phil is a Missouri employment lawyer who is licensed to practice in Kansas and Missouri, and primarily takes cases in Saint Louis and Kansas City. He is a member of the Missouri Bar Association and Kansas Bar Association. Additionally, he has practiced in the United States Federal Courts of Missouri in St. Louis and Kansas City. He has also practiced in the Kansas Federal District Court in Kansas City, Kansas.
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