Employers usually face defamation claims in connection with wrongful termination allegations.  Defamation claims can arise in twoNestor Galina forms: libel (written) and slander (spoken).  Defamation can result from a variety of different scenarios, such as: statements made to others during a workplace investigation, explaining to colleagues the reasons why an employee was terminated, the employee’s claim that the reason for his termination was false, or in connection with job references.  This Friday’s Five helps employers understand what can constitute a claim for defamation, and potential defenses.

1.     Two Types Of Defamation: Libel And Slander

In order to prove a libel or slander claim, the employee must prove: (1) false communication; (2) unprivileged statement of fact (not opinion); (3) it was made about the plaintiff; (4) published to a third party; and (5) caused damage to the plaintiff.

For libel, which is written, the communication must expose plaintiff to “to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”  See Cal. Civil Code section 45.

To prove slander, which is verbal, the communications must charge plaintiff with a crime, imputes him with an “infectious, contagious, or loathsome disease”, or “impotence or want of chastity”, or tends directly to injure plaintiff in his occupation.  See Cal. Civil Code section 46.

2.     A Plaintiff does not have to prove damages for defamation “per se”

Certain communications eliminate the need for the plaintiff to prove special damages (see below for definition of special damages), and these communications are called defamation per se.  Slander per se are words that “fall within the purview” of Civil Code section 46.  Libel per se is “defamatory of the plaintiff without the necessity of explanatory matter, such as inducement, innuendo or other extrinsic fact…”  Therefore, if the defamatory statement is not apparent on its face and requires an explanation of the surrounding circumstances (the `innuendo’) to clarify the meaning, it is not libelous per se.

For example, statements claiming that a doctor committed extortion, lied under oath, prescribed medications without a license are defamation per se.  See Burrill v. Nair (2013) 217 Cal. App. 4th 357, 384-385.

3.     Publication required

There needs to be publication in order for a statement to constitute defamation.  However, even making the statement to one person can constitute publication.  Usually if the plaintiff makes the publication of the statement herself, it cannot be defamation.  However, if the plaintiff is under a strong compulsion to disclose to others the defamatory statement, this could constitute publication even though the plaintiff makes the statement herself.  This argument arises when the plaintiff alleges that the company provided false and defamatory reasons for a termination, and then when attempting to obtain a new job the plaintiff must disclose the statements to prospective employers during the interview process to explain the past employment situation.

4.     Certain Workplace Communications Are Protected From Defamation Claims

Employers are protected under a qualified privilege when they communicate without malice with a person who has a common interest in the subject matter of the communications.  For example, a court held that an employee’s report of alleged sexual harassment by a co-worker made to a health care provider and the company’s human resources personnel was privileged, and therefore not defamation.  In addition, in some cases courts have held that statements made without malice by the employer to other employees about the reasons for an employee’s termination are privileged because the employer and employees have a common interest in maintaining safe workplaces and job efficiency.  However, employers still need to be very careful in what they communicate to others within the company, and should usually keep the information limited to individuals who have a need to know.

5.     Damages Available To Plaintiffs

Plaintiffs are entitled to recover different damages depending on the type of defamation they have proven as part of their case.  The California Civil Code sets forth the following damages based on the underlying conduct and malice involved in the statements:

(a) “General damages” are damages for loss of reputation, shame, mortification and hurt feelings;

(b) “Special damages” are all damages which plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves he has expended as a result of the alleged libel, and no other;

(c) “Exemplary damages” are damages which may in the discretion of the court or jury be recovered in addition to general and special damages for the sake of example and by way of punishing a defendant who has made the publication or broadcast with actual malice.

See Cal. Civil Code section 48(a).

Photo: Nestor Galina