Sometimes referred to as employee defamation of character, employee defamation is a situation in which a current or former employer makes a false statement regarding the employee that ultimately creates hardship for that individual. The hardship may take the form of causing the employee to be subjected to public ridicule, damage the business or personal reputation of the individual, or even cause a former employee to lose the opportunity to secure a position with a new employer. Depending on the laws that apply in the jurisdiction where the false statement was made, the defamation may be explicit or implied.
In order for employee defamation to occur, it is necessary to establish that the statement made by the employer was in fact untrue. When the employer makes direct allegations, it is relatively easy to prove or disprove the statements. For example, if the employer states that the employee was always late reporting for work, and company records indicate the employee was only late twice in the last year, it is possible to determine the employer’s statement was false and intended to defame the work ethic of the employee.
Proving employee defamation may be somewhat more difficult if the statement made by the employer was suggestive, but open to more than one interpretation. With an indirect statement that appears to cast doubts on the employee’s honesty or work habits, a judge or court may find it necessary to learn more about the setting and context in which the statement was made. Doing so would help to determine if the remark was meant to harm the reputation of the employee or if there was some other mitigating circumstance that would alter the meaning and intent of the words.
While the type of statements that would be considered employee defamation vary from one jurisdiction to the next, it is not unusual for applicable statements to be classified in one of two categories. In the event that the statements in question were documented in some type of printed or written format, the employee defamation is classified as libel. Should the statement be presented orally, the defamation is classified as slander. In the case of slander, testimony from other parties present may be presented to deny or affirm that the employer made the statement, using the same verbiage as claimed by the employee.
Many jurisdictions do provide for a limited number of instances in which an employer is protected from prosecution, even if the employee defamation occurs with malice aforethought. There are three settings where this special or absolute privilege may be extended: statements made on unemployment compensation applications, written responses to subpoenas, or statements made during a hearing with an employee board or governmental human rights committee. Since laws regarding employee defamation do vary somewhat from one area to another, seeking legal counsel when an employee believes that false statements made by a current or former employer have resulted in some type of damages is essential to determining if there is some type of recourse available for the employee.
