Defamation at the Workplace

Defamation is a cause of action that provides a remedy to individuals who have had their names or reputations "defamed" by inaccurate accusations.

The defamation cause of action has five elements: 1) the defendant made a false statement of fact; 2) about the plaintiff; 3) to someone other than the plaintiff; 4) negligently or maliciously; 5) that either caused special damages or that qualified as defamation per se. Special damages are damages that are primarily economic, such as losses of wages.

Defamation "per se" is virtually identical to general defamation, except that it does not require that the plaintiff prove he or she suffered "special damages." Instead, it requires only that the false statement made by the defendant makes a particular kind of claim about the plaintiff. The specific kinds of implications that raise a defaming statement from one of mere defamation to defamation per se "tend directly to injure the plaintiff in respect to his office, profession, trade or business ... by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires or charge the plaintiff with a crime." BAJI 7.09.

• The categories of statements the defendant could make about the plaintiff that would qualify as per se defamation are as follows: That the plaintiff a) committed a criminal offense; b) has a loathsome, communicable disease; c) lacks integrity in the discharge of his or her duties of office or employment; d) lacks ability in his or her trade, profession or business; or e) has committed fornication or adultery.

These rules of defamation are not lost in the workplace. Rather, they apply just as forcefully at work as they do in one's own living room. In fact, due to principles of respondeat superior, where the employer becomes liable for defamatory statements made by some of his or her employees, the defamation cause of action may be even more relevant at the workplace than in other locations.

For instance, if a supervisor of the plaintiff made a slanderous accusation that the plaintiff had an affair with a fellow employee at the business, then, assuming the statement was false, the plaintiff would have a strong case for defamation per se. Such a statement about the plaintiff could do terrible damage to his professional career. Other employees could spread the rumor around, allowing the rumor to eventually reach the ears of the plaintiff's employers or of even the competing businesses in the area. Due to this, defamation at the workplace can be a very serious issue.

Worse, defamation at the workplace is a very common occurrence, especially as an employee is terminated wrongfully. If the employer justifies the termination by accusing the employee, for instance, of drug dealing when such is not true, then the employer has not only defamed the employee to a quite serious degree but has fired him for completely inaccurate pretenses. Such an accusation in fact would qualify as defamation per se because it involves a claim that the plaintiff participated in a criminal offense.

The employee was entitled to his job and reputation, but because of the defamation now has neither. Even if the employer does not truly believe the employee has committed the act implicated by the falsehood, the employee will have already lost his job and been defamed if the statement has been publicized to another.

Statements About Job Performance or Performance Reviews:

Another, perhaps more common example might be the following: the employer in a performance review states that the plaintiff was clocking in or out from work at inaccurate times, et cetera. Or, perhaps the employer stated to a coworker that the plaintiff was incompetent and was unable to perform his job. These kinds of claims might seem normal in performance reviews. However, false accusations that an employee lacked ability or integrity in his profession are in fact two of the defamation per se categories.

Examples of statements about the employee or his performance that could be defamation per se at the workplace:

• Employee was uncooperative
• Employee was incompetent
• Employee associates with bad people
• Employee was betraying the company
• Employee was unethical
• Employee was slow or behind in his or her work
• Employee was harassing other workers
• Employee had a disease
• Employee was a thief
• Employee was dishonest or the employee had made false statements at the workplace
• Employee was inefficient compared to other workers
• Employee received a number of complaints
• Employee committed malpractice
• Employee needs more training
• Employee was being investigated for [inappropriate conduct]
• Employee did not follow rules or protocol

It is important to note, however, that in order to successfully bring a claim of defamation against a fellow employee or one's former employer, the defamatory statement must be both false and also stating a fact, as opposed to an opinion. Employers who have told employees that they were, "poor [workers]" are not liable solely for making that statement unless other facts are present. Moyer v. Amador Vally J. Union High School Dist., (1990) 225 CA3d 720, 725.

However, at the same time, employers are in fact liable for merely insinuating statements such as those listed above about the plaintiff.

If you have been defamed at or by your workplace, contact the experienced defamation attorneys at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.

For more information, read about defenses to defamation.