Workplace defamation, of which slander is one variety, may run in either direction. That is, an employee may accuse the employer of slander or the employer may find itself defamed by a disgruntled current or former employee. It is important that employers understand how to protect themselves from workplace slander claims and know what to do if the company is defamed by an employee.
Slander Claims by Employees and Former Employees
Although terminated employees or those otherwise upset with the company may threaten slander suits, it is actually relatively easy for a company to avoid actionable defamation. There are two key defenses that an employer will likely use in response to an employee who has alleged slander and further details about these follow.
Opinions Do Not Constitute Defamation
A defamatory statement is by definition a false representation. However, opinions are subjective and neither true nor false. Thus, making a negative statement about an employee that expresses an opinion as opposed to exerting a fact is not slanderous. For example, saying, “I found Greg hard to get along with,” generally expresses only the opinion of the speaker. Different people will “get along with” others based on a variety of different factors, and the speaker has made no factual assertion about Greg.
On the other hand, stating that Greg is frequently late for work is an assertion of fact, and could be the basis for a defamation claim if the statement is not accurate.
Truth is an Absolute Defense to Slander / Defamation
Slander and libel involve false statements. Therefore, a negative statement about a third party, including an employee, will not constitute defamation if the statement is true. In the example above, a statement that Greg is chronically late for work is an assertion of fact, and so could give rise to a defamation claim if it is false. However, if the employer’s records clearly indicate that Greg was habitually late for work, that Greg had been written up or otherwise reprimanded for his tardiness and the behavior continued, or can otherwise demonstrate the truthfulness of the statement, it will not constitute slander.
Avoiding Slander Suits by Employees
While statements of opinion and accurate statements of fact do not fulfill the legal definition of defamation and thus will not support a workplace slander suit, many employers choose to avoid the risk altogether by refraining from making negative statements about employees and past employees to co-workers, prospective employees, and others. While this is not strictly necessary in most cases, it does afford the employer an added layer of protection. In addition, refraining from making negative statements publicly within the company or to outsiders is often good business practice, as statements an employee might (rightly or wrongly) consider defamatory may be damaging to morale and trust within your organization.
Instituting clear policies within your organization as to what type of information may be shared during reference checks and who information may be shared with internally will help you avoid legal complications and will help you defend against any claims that may arise.
Defending Against an Employee Workplace Slander Suit
If an employee brings a workplace slander suit against you, act quickly to consult and enlist the help of an attorney experienced in the area of employment defamation. You cannot afford to assume that because you believe your statements to have been truthful or to have been statements of opinion that the case will be easily resolved. An experienced lawyer will help you assemble the evidence you need to defend against the claim, and will know how to most effectively present that evidence.
Suing Employees for Defamation
It is not unusual for a dissatisfied employee or former employee who feels wronged by the company to publicly attack the organization. This has become more widespread and more potentially damaging with the growth of social media. It is easier than ever for someone who wants to hurt your business to spread misinformation and more difficult to contain the damage.
While an employer may sue an employee for false public statements that harm the company, the inclination to do so has historically been low. In most cases, employees do not have enough assets to make a lawsuit viable from a purely financial standpoint.
However, a lawsuit may be the most certain and efficient way to put an end to the employee’s defamatory actions. In addition, if the statements have the potential to seriously harm the company, a legal victory in a defamation case will create a public record showing that the statements have been demonstrated to be false.
Talk to an Employment Defamation Attorney
Whether you’re instituting policies to protect against allegations of defamation, have been accused of defamation by an employee or are being defamed, your best first step is to obtain knowledgeable advice and guidance. Contact KPPBLAW for more information.