The elements required to prove workplace defamation usually include:
1) a false and defamatory statement about another;
2) the unprivileged publication or communication of that statement to a third party;
3) fault on the part of the person making the statement amounting to intent or at least negligence;
4) harm to the subject of the statement.
One of the most difficult aspects is determining whether workplace conduct harmful to an employee’s character is considered defamation. Examples of behavior that can be confused with workplace defamation include name-calling, trivial "water cooler" rumors, joking around, and sincere personal perspectives. Some of the most common disputes over whether conduct is defamatory occur over:
Opinions vs Facts:
In general, statements made as expressions of pure opinion, rather than allegations of fact, are not defamatory. In addition, allegations of fact usually must not be true to be considered defamation. Proving that statements are true is usually a complete bar to recovery for defamation by the subject of those statements. If the information communicated as a fact is false, and the speaker has no reasonable basis to believe that it was true, then the employee injured by these statements may be able to sue for defamation of character.
While petty rumors are usually not considered defamation, those that create a hostile work environment or injure an aspect of an employee’s career may be considered defamation. If the rumors are false or derogatory and the speaker had intent to harm the subject of the rumor, this is usually defamation and may give rise to a lawsuit. Employers also have a duty to create a workplace that is a comfortable environment without the spreading of rumors. When this does not happen and harmful gossiping is a regular occurrence, the employer may also be liable.
Employers are generally immune for critiques given during performance reviews because they have qualified privilege, but there are exceptions for some egregious conduct. When an employer makes defamatory statements in a performance review that are motivated by malice, made in bad faith without a factual basis, heavily exaggerated, intended to harass, or other similar reasons, the employee making the comments may be liable for defamation. Some examples include unfounded allegations of theft, dishonesty, incompetence, and other harmful or criminal assertions.
Background and Reference Checks:
Many states have laws in place to protect employers who speak openly about former employees when called upon by another company for a background check. For the most part, if an employer only declares the facts related to an employee's work history, it is not likely to be considered defamation according to state law. In addition, many states offer employers immunity from liability for the disclosure of accurate information regarding job performance or any other reasons for termination of former employees. Therefore, if a manager tells the person conducting the background check that the former employee was terminated for inadequate job fulfillment, it is probably not defamation. This is especially true if the manager has witnesses or documents to prove their allegations.