Important Disclaimer
April 2005
Intra-Company Communications Spawn Employee Defamation Lawsuits
Prepared By: Melissa C. Marsh
Employers pay attention! Defamation occurs when an unprivileged false statement of fact is published. Section 577 of The Restatement, Torts (Second) states that a communication by one agent (employee) of a corporation, acting within the scope of her or his employment, to another agent (employee) of the same corporation is a publication by both the agent and the corporation. In California, if an employee sends an intra-office disciplinary memo regarding another employee's behavior to any other employee within the company (including the human resources department) the memo will be considered a "publication" for the purpose of a defamation claim. In such an instance, the employee who was the subject of the disciplinary memo may sue both the company and the supervisor for defamation if the memo contains a false statement of fact.
Although an employer may defend a defamation claim with a "qualified privilege," the privilege defense can be defeated if the employee can show the communication was made with "malicious intent." If the employee's attorney pleads malice, the employer will find it very difficult to obtain summary judgment and will probably face a jury trial if the matter cannot be settled before trial. Evidence of malicious intent can be shown simply by such events as a failure to investigate the allegations, prior good evaluations, and inconsistent statements made by the company's employees.
All employers should advise their employees to investigate and substantiate facts before preparing a negative memo, negative review, or other written comment on an employee's behavior. After such an investigation, supervisory employees should be cautioned against making potentially false statements of fact and trained to phrase their allegations and/or perceived findings in subjective terms of cautionary opinion. |
