Seyfarth Synopsis: As Californians grow tragically familiar with wildfire, California employers face another threat of fire in the form of defamation lawsuits. The rapidly burning #MeToo anti-harassment movement, and constant talk in the news about peoples' reputations being destroyed, has rained down fire and fury for California employers forced to consider possible defamation lawsuits by current or former employees.
Stoking the Fire: How Defamation Lawsuits Begin
Workplace defamation lawsuits can flare up in various ways: the administration of performance reviews, background and reference checks, and conducting workplace investigations. But the fires often burn fiercest in the context of harassment lawsuits. In defending a workplace harassment lawsuit, employers must use caution in making any statement about the litigation that could harm a plaintiff's reputation, particularly where it comes to providing employment references. Employers who fail to do so put themselves at risk of permitting a rumor mill that sets themselves up for a defamation lawsuit.
Red, Orange, and Yellow Flames: Standards for Defamation, Libel, and Slander
Under California law, defamation is a false statement made about another person that harms the person's reputation. California, unlike some states, has separate standards for written defamation (libel) and oral defamation (slander).
Usually a defamation plaintiff must prove damage to profession or occupation, but sometimes the statements are so controversial that the words alone are deemed to cause harm. A false statement that an employee "sexually assaulted" another employee might fall into that category, as might a false statement that an employee "colluded with a competitor," as these statements might imply an individual is professionally unfit.
In the workplace (and especially in the harassment context), statements are more likely to damage a person's profession or occupation because they will likely relate to the person's reputation.
What Can I Do If a Fire Catches?
Here are three situations that could spark a defamation claim and what employers can do to douse any flame:
An employee volunteers that you disciplined a former employee for sexual harassment, when talking to a prospective employer for the former employee. Solution: Have a written policy that restricts what your company will tell prospective employers of your former employees. Do not provide substantive information regarding an employee's reasons...