Defamation claims arise frequently in the employment context. Your boss and your co-workers are subject to the same libel and slander laws that apply outside the workplace, and they need to be careful not to exceed the boundaries of fair criticism. The employment relationship, however, does present special challenges to a contemplated defamation lawsuit. As any good defamation lawyer will tell you, a primary obstacle in establishing defamation liability in the employment context is the existence of qualified privilege.
Workplace defamation suits often involve statements made during performance evaluations, tenure review, or employee terminations. These statements will often be deemed privileged, as a limited privilege applies to communications made in good faith on any subject matter in which the person communicating has an interest, or with reference to which he has a duty if made to another person having a corresponding interest or duty. Performance evaluations, tenure reviews, and employee terminations all typically involve situations where it is necessary or expected to make statements about another individual that could potentially affect another’s professional standing or reputation.
The protection offered by qualified privilege can be lost, however, if it is abused. If statements are made to a third party having no business hearing the information, they lack the requisite “corresponding interest or duty” and the privilege may be lost. Similarly, the qualified “interest or duty” privilege can be defeated if the plaintiff shows the defamatory statements were made with malice.
“Publication” is another potential issue in the employment context. An essential element of the cause of action for defamation, it is generally defined as communication to a person other than the plaintiff and other than the speaker. Internal corporate communications are considered by some courts to lack this “third party” requirement, as internal statements can be viewed as a corporate entity speaking to itself. Most Virginia courts, however, refuse to afford absolute immunity to all intra-corporate communications. (See, e.g., Larimore v. Blaylock, 259 Va. 568, 575 (2000)).
In Virginia, statements suggesting someone is unfit to perform his or her job requirements or lacks integrity in the job, and statements that tend to “prejudice” someone in his or her profession are considered defamation per se. A plaintiff need not prove actual harm to reputation in such cases and compensatory damages for injury to reputation, humiliation, and embarrassment are presumed. In the context of defamation in the workplace, the defamatory statement will almost always constitute defamation per se because most statements arising in this context will consist of an attack on the plaintiff’s competency in his or her business, trade, or profession.
Other issues that typically come up in workplace defamation cases are whether the employer can be held accountable for the defamatory statements of its employees, whether the statements made during the performance review constitute protected opinion, whether they are too vague to be considered defamatory, and whether they contain defamatory innuendo understood by the recipient even if not apparent to an outsider.