Most Virginia employers these days are careful to avoid using defamatory language when terminating employees. They know that defamation actions (i.e., lawsuits alleging libel and/or slander) are best avoided by responding to inquiries from other employers by identifying an ex-employee’s dates of employment and position held, but little else. Although “truth is a defense” (statements about an employee will not be defamatory if they are true) and an employer usually has a qualified privilege to make statements that arise out of an employment relationship, no employer wants to get sued by a disgruntled ex-employee and employment lawyers are constantly thinking up new theories of employer liability.
One recent theory that has gained a following in certain states is based on the so-called “compelled self-publication” doctrine. Virginia, however, is not one of those states, according to a memorandum opinion issued on May 6, 2009, by a federal court sitting in Richmond.
Here’s how the theory works. First, to bring a claim for defamation in Virginia as well as in most other states, a plaintiff must allege not only a defamatory statement made with the requisite intent, but that the statement was “published” (i.e., made) by the defendant to a third party. The idea behind “compelled self-publication” is that even if a careful employer does not publish the reasons for an employee’s termination to a third party, merely having a false, pretextual justification for the termination in the employee’s personnel file should make the employer liable for defamation because it somehow compels the discharged employee to tell prospective employers the reasons he or she was fired.
In Wynn v. Wachovia Bank, the Eastern District of Virginia held that Virginia law does not recognize such a theory. Wynn, whom Wachovia had terminated, sued Wachovia for defamation on the ground it stated her termination was for “job abandonment” and that she had taken unauthorized paid time off, reasons she claimed were false. Wynn did not claim that Wachovia published these statements to a third party; rather, she claimed the reasons offered for her termination put her “in the untenable position of having to defame herself when seeking employment elsewhere.” The court held flatly that regardless of whether Wachovia “forced” the plaintiff to defame herself, Wachovia could not be held liable for defamation without the requisite publication to a third party.