Defamation occurs when a person makes an intentionally false statement which harms another. It is considered a personal injury, meaning you may be eligible for damages for both financial losses and emotional distress.
When a statement is made orally, it is called slander. By contrast, a written statement is called libel.
In a job context, the defendant is often an employer or a former employer. These types of claims typically arise after the employment relationship ends, when a former employer is asked for a reference.
In this scenario, the employee claims that a former employer provided a false reference or another statement that caused substantial damage to the employee’s reputation and/or harmed his/her chances of obtaining employment. In most cases, the false statement is about the reasons why the employee was fired or the quality of the employee’s performance and work ethic.
To win a defamation case, an employee must prove the following:
- The employer made a false statement of fact about the employee – Statements of opinion are not considered as a proper basis for a defamation claim. Additionally, so are statements that are considered true, no matter how hurtful they are.
- The employer “published” the statement – Simply put, the employer needs to actually make the statement to another person.
- The employer was aware, or should’ve been aware, that the statement was false – If an employer acts with reckless disregard for the truth, such as repeating a damaging rumor without looking into it, it could be grounds for a defamation claim. On the other hand, if the employer truly believes that its statement was fact, there is no defamation claim.
- The statement was not privileged – Statements of candor and open communication are often considered privileged, meaning the speaker is protected from liability for making the statement.
- The employee suffered harm because of the statement – There are several statements that are deemed as defamatory “per se,” which means that the law presumes the statement causes harm—so the employee doesn’t have to necessarily prove it. By contrast, if the employee has to prove damage, the harm typically involves another employer’s refusal to hire the employee because of the statement.
The main types of money damages a plaintiff may recover if he/she wins a defamation lawsuit includes lost pay, lost benefits, pain and suffering, and even punitive damages. However, the best civil lawsuit is tough to win, and the compensation you may be awarded is uncertain.
If a former employer makes false statements about you, then you need to speak with an experienced employment attorney to determine if you have a legal claim for defamation.