Misrepresentation of the Reasons for Termination of Employment

A common concern among employees who quit their jobs or get fired is that their former employer will badmouth them to their colleagues or prospective employers, interfering with their ability to earn a livelihood. Although there are some benefits to getting fired versus quitting (e.g., unemployment benefits, severance packages), most people would prefer to have the record reflect a voluntary separation rather than an involuntary one, which usually implies poor performance on behalf of the employee. If you’re reading this, you’re probably wondering whether you would have a potential libel or slander claim against your former employer if that employer tells people that you were fired for bad behavior when the truth of the matter is that you either quit or were asked to leave through no fault of your own. The answer, as it so often is when dealing with legal problems, is maybe. It depends on why you left your former job, and what, exactly, your former employer communicated to others about the reasons for the separation.

The Virginia Supreme Court has recognized that misrepresenting the reasons for an employee’s termination may be sufficient grounds for a defamation lawsuit. In Government Micro Res., Inc. v. Jackson, 271 Va. 29 (2006), evidence showed that after a company fired its President and CEO, others were told that the CEO had “mismanaged the company” and “had been removed from his job because he lost $3 million.” The evidence also showed that these statements were untrue and that they were made with the intent to defame the former CEO and harm his ability to gain employment with a competitor. These facts were deemed sufficient to support a multi-million dollar defamation verdict. (Note: The holding wasn’t based on an accusation merely of “mismanagement,” which surely would have been deemed non-actionable opinion, but rather the coupling of that statement with an assertion that the CEO’s mismanagement resulted in substantial financial losses which were the basis for his termination. Those are factual statements, as they can be proven true or false).

Similarly, in Meredith v. Nestle Purina Petcare Co., 516 F. Supp. 3d 542 (E.D. Va. 2021), the court denied a motion to dismiss a defamation claim based on an allegedly false statement that the former employee had been fired for insubordination. The issue wasn’t whether “insubordinate” is a statement of fact or expression of opinion; the issue was whether the assertion that perceived insubordination was the basis for the employee’s termination was a matter of provable fact. “Simply put,” the court held, “Plaintiff does not allege that Defendant’s characterization of her as ‘insubordinate’ constituted defamation. … Instead, Plaintiff contends that her alleged insubordination did not cause Defendant to fire her. … Whether Defendant terminated Plaintiff because of I-quit-300x198insubordination constitutes a factual assertion subject to verification.”

The final case I’ll mention today is Kimberly Hartman v. Centra Health, Inc., decided just a couple of months ago. Hartman is a licensed registered nurse who worked for Centra Health as the manager of the Virginia Baptist Hospital’s Child and Adolescent Psychiatric Unit. Hartman took issue with the hospital’s denial of two requests to transfer children experiencing acute psychiatric symptoms from emergency rooms in other parts of Virginia. She complained to her superiors about this, noting that the failure could be deemed a violation of the Emergency Medical Treatment and Labor Act. Four days later, she was fired. Why? According to Hartman, it was in retaliation for her blowing the whistle on their apparent violations of federal law. But what Centra Health allegedly told others was that it had terminated Hartman’s employment “for cause.”

To state a valid defamation claim, Hartman had to allege facts that, if true, would show that the “for cause” assertion was false. The court found that she had. “For cause” means “for a legal reason or ground,” typically “expressing a common standard governing the removal of an employee under contract.” (See Black’s Law Dictionary, 11th ed.). Taking Hartman’s allegations as true, she was fired for truthfully reporting a violation of federal law, which is a wrongful termination in violation of Virginia public policy. That means she was not fired “for cause,” and thus she was allowed to proceed with her defamation claim.

In sum, you can’t stop a former employer from badmouthing you after you leave. Your former boss still has First Amendment rights which protect his or her ability to express personal opinions about the quality of your performance. A defamation claim may arise, however, if these negative comments include false implications or outright lies, such as a false suggestion that you were fired specifically because of these negative characterizations. If you believe this has happened to you, come talk to me.


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