Defamation in Employment

What is defamation?

Defamation is a false statement made to the public or a third party that injures the reputation of another. Defamation claims can be based on oral statements (slander), or on written statements (libel).

In the workplace, defamation often takes the form of a former employer trying to harm the reputation, future employment opportunities, or character of another by making false statements about the employee. The consequences of such statements can be serious, including lost career opportunities, tarnished reputation, strained professional or personal relationships, and personal stress.

Elements of a Defamation Claim

A defamation claim has five parts:

(1) the assertion of a false and

(2) defamatory statement concerning another;

(3) the publication of that statement to a third party;

(4) fault amounting at least to negligence by the publisher; and (in most cases),

(5) damages.

The first two parts require that the truth or falsity of the underlying facts surrounding the statement is able to be determined. If the statement is merely an expression of opinion, no matter how insulting, it will not be the basis for a claim, since it is considered free speech protected under the First Amendment. An exception, however, exists where the opinion implies the existence of undisclosed defamatory facts on which the opinion is based, thus potentially subjecting the maker of the opinion to liability.

The third part requires that the statement be directed to a third party and understood by others to refer to the person defamed. It is not necessary that the statement specifically names the individual, so long as the recipients of the statement reasonably understand it to refer to him or her.

The fourth part requires that the publisher made the false statement while acting negligently in failing to ascertain the truth or falsity of the statement before communicating it.

Bringing a Cause of Action

In deciding whether statements are defamatory, a court must consider (1) content, (2) verifiability, and (3) the context of challenged statements.

First, the court will analyze the content of the alleged defamatory statement by looking to the “fair and natural meaning” which will be given to the alleged defamatory statement by “reasonable persons of ordinary intelligence.” Although insults, epithets, vulgarities, or name-calling are hurtful and potentially harmful, they are not considered defamatory.

Second, the court will consider the verifiability of the statement by determining whether it is one of fact or opinion. To be actionable, the statement must be both false and a statement of fact (i.e. a statement that can be proven true or false).

Third, the court will consider a listener’s reasonable interpretation, which will be based in part on the context in which the statement appears. In general, words that subject a person to ridicule or contempt, or that clearly sound to the disreputation of an individual are defamatory on their face.

Common Contexts

Defamation in employment is seen in a variety of contexts.

• A former employer making defamatory, false statements about a former employee in a reference to a prospective employer
• A retaliatory report or review from a supervisor containing untrue assertions
• Performance evaluations and conduct investigations that involve widespread dissemination of false information to other employees of the company
• Lack of confidentiality by an employer during the course of substance abuse testing
• Communications made by an employer to clients or customers regarding a discharge of a former employee.

If you believe a former employer is making or has made defamatory statements about you to others, please feel free to contact us to discuss the facts of your situation.

Gianna D’Onofrio is a third-year law student at Seton Hall University School of Law with a passion for Corporate Law. Upon graduating in the Spring and taking the Bar Exam, she will serve as a law clerk to Judge Cynthia Santomauro in Essex County, Civil Division.