What Qualifies as Workplace Defamation of Character?

If you have been slandered or falsely accused of misconduct at work, you know how devastating such statements can be. Workplace defamation of character can severely damage the professional reputation of both employers and employees.

Workplace defamation involves a false statement of fact that is communicated about an individual or business to a third party that harms their professional reputation. Such statements can be made by employees, employers, or third parties such as vendors, customers, and competitors.

At Minc Law, we have extensive experience representing defamation victims across the U.S. and the globe. We understand the reputational harm a false allegation can cause and help victims take both legal and non-legal measures to mitigate the effects, repair their reputations, and monitor the internet for further defamatory attacks.

In this article, we explore the impact of defamation and how it commonly manifests in a business setting. We then show you how to prove workplace defamation of character and how employees and employers can fight back against defamation.

Impact & Ramifications of Workplace Defamation of Character

Being the target of defamatory statements can not only lead to disastrous consequences for someone’s personal life but their professional life as well. Specifically, it can harm your reputation and jeopardize advancement opportunities, income, and employment status. For businesses, defamatory statements can lead to issues in hiring and retaining talent, a declining bottom line, and even having to shut one’s doors for good.

However, not every offensive statement rises to the level of defamation. In this section, we define defamation of character in the workplace and list several common examples.

What is Defamation of Character in the Workplace?

Defamation is a false statement of fact communicated or published to a third party that harms an individual or business’s reputation. When that statement concerns you as an employee or employer, it may then be referred to as ‘workplace defamation’ or ‘workplace defamation of character’.

Defamation can be either spoken (also known as slander) or written (also known as libel). Libel may occur in print or digital mediums like email, text, social media posts, or websites. Slander may be spoken in person or in a recorded video or audio message.

Defamation Per Se

Defamation per se is a legal doctrine and a type of defamation that involves such inherently harmful statements that a plaintiff may recover general damages without needing to prove that they suffered any actual damages. Typically, a statement is classified as ‘defamatory per se’ if it falsely:

• Accuses you of committing a crime,
• Suggests you have a contagious or infectious disease,
• Infers you are unfit to perform your profession, or
• Accuses you of sexual promiscuity or adultery.

If the statement falls into one of these categories, you do not need to prove that you suffered damages. However, this does not automatically allow for a plaintiff to recover damages other than ‘nominal damages’. Therefore, most plaintiffs still provide evidence of harm to strengthen their overall case.

Common Examples of Workplace Defamation

The modern business environment is a mix of in-person and online interactions. Each of these interactions has its own potential for defamatory statements. Whether made over Zoom, at the water cooler, or posted on Glassdoor, a false statement harming your professional reputation may take countless forms.

Below, we examine common examples of workplace defamation by employees and employers alike.

Workplace Defamation by Employees

Defamation perpetrated by employees against supervisors, coworkers, or the company is what we typically think of when we hear the term ‘workplace defamation’. For example, a disgruntled employee might:

• Post on an employer review website. Employees are entitled to share their opinions of their workplace. However, reviews containing false statements of fact can be defamatory. Say James posts on Glassdoor falsely claiming his old workplace violated several OSHA regulations. This attack could discourage new applicants and seriously harm the business’s ability to attract top talent.
• Give news media interviews. During an interview with a news outlet, Julia claims the restaurant where she works has been repeatedly fined for health code violations. If this claim is false, it could severely damage the restaurant’s reputation.
• Spread office rumors. Most office rumors do not give rise to an actionable defamation claim. But if they are especially harmful or contain actual malice, they may rise to the level of defamation. For example, if Don spreads a false rumor that his supervisor Jenny embezzled company money, she could face serious legal and professional consequences.

Workplace Defamation by Employers

Employers and supervisors can also commit defamation. This kind of statement is often made about past employees or to have a disliked employee fired. Here are a few common scenarios in which an employer might defame an employee:

• Defamation through references. Say Peter is a manager at a retail company and has a disagreement with his employee, Sarah. After Sarah leaves the company, she applies for another job. When her prospective employer calls Peter for a reference, he falsely claims Sarah was always late and had a poor work ethic. As a result, Sarah does not get the job.
• Slander in business meetings: Suppose Richard knowingly spreads false information about a junior colleague, Lisa, in a team meeting. He claims Lisa’s serious mistakes in a project harmed the company, even though she was not involved. Lisa’s colleagues lose trust in her, damaging her professional reputation and prospects within the company.
• Slander an employee to other employees or third parties. Julio is meeting with a subordinate, Amy, and a client. Julio claims that another subordinate, Kim, was taken off the client’s project because she was stealing from the company. If this statement is untrue, it could harm Kim’s reputation and career advancement opportunities.
• False statements to unjustifiably terminate an employee. Ellen dislikes her employee, Bob. To have an excuse to fire him, Ellen decides to accuse Bob of abusing drugs and alcohol while on the job. Not only is Bob fired, but he faces legal consequences and struggles to find subsequent employment.

Consequences of Workplace Defamation For Employees & Employers

Workplace defamation can have serious consequences for both employees and employers. The potential impacts vary based on the specific circumstances, but a few common consequences include:

For Employees

Employees falsely accused of misconduct or poor performance could lose their jobs. Defamation can also make it hard to find new employment, especially if false information spreads within their industry or professional network.

Defamatory statements can tarnish an employee’s reputation, making it difficult for them to build or maintain professional relationships. Their career prospects and opportunities can also suffer.

False accusations can also cause significant stress and emotional trauma. Aside from the personal effects of this trauma, it can lead to decreased productivity and job satisfaction.

For Employers

Defamatory statements can harm a company’s reputation, impact customer trust and loyalty, and deter potential employees.

Workplace defamation can create a hostile environment, decreasing team productivity and morale. Lower morale often means a higher employee turnover rate—which creates additional costs for hiring and training new staff.

It is essential for both employees and employers to understand and enforce workplace policies fostering respect and professionalism. All parties should also understand their legal rights and responsibilities to handle defamation if it arises.

For further reading, please see our guide ‘Can You Sue an Employee For Defamation?’.

How to Prove Defamation of Character in the Workplace

Employers and employees defamed in the workplace have just as many legal claims and remedies as other individuals under traditional defamation laws. However, businesses have additional, specialized claims for relief that are unavailable to individuals. The most common legal claims for businesses include:

• Trade libel and injurious falsehood,
• Business defamation, and
• Tortious interference.

Business defamation claims often have more benefits and remedies than traditional libel or slander torts. For instance, these cases often have a longer statute of limitations and multiple damage awards.

What Evidence is Needed to Prove Workplace Defamation?

To successfully claim workplace defamation of character, you must prove the statement harmed your professional reputation or business. For example, you might show evidence of the following:

• Income or revenue loss,
• Lost clients,
• Decrease in foot traffic,
• Job termination,
• Lost promotions or job opportunities,
• Missed bonuses, and
• Added expenses.

It is also important to document the harm caused and that at least one-third party saw or heard the statement. To do this, we recommend taking screenshots, saving chat logs of online conversations, printing emails, or saving time-stamped HTML versions of entire web pages. You can also use preservation tools like Page Vault or VisualPing to preserve online evidence.

In addition to documentary evidence, you may need to prove defamation by providing witnesses to testify to the harm you suffered. It may help bolster your claim to obtain sworn statements from witnesses to the defamatory statements.

How Can Employees & Businesses Prove Defamation of Character in the Workplace?

To bring a successful workplace defamation claim, a plaintiff must prove the following elements:

• A false statement of fact was made about the victim,
• The statement was communicated to a third party,
• The defendant acted with at least a negligent level of intent, and
• The statement damaged the victim’s reputation

1. False Statement of Fact About the Plaintiff

Defamation refers to a false statement that goes beyond mere “opinion” and is factually verifiable as true or false. Also, a reasonable audience must understand that the statement concerns the plaintiff.

Jane telling her coworker “Our boss is a terrible person” might be offensive, but it is an opinion and therefore not defamatory. If Jane says, “Our boss is a sexual predator,” this statement of fact can be proven or disproven. If the false statement harms Jared’s reputation and work prospects, it could rise to the level of defamation.

2. Communicated to a Third Party: “Publication”

Defamation must also be spoken or communicated to a third party. If the speaker privately communicated a harmful statement to the victim, that statement may not satisfy the “publication” element required to succeed in a defamation claim.

3. At Least a Negligent Level of Intent

Plaintiffs in a defamation suit must also prove that the defendant acted with at least negligence. In this situation, the defendant did not take the care a reasonable person would take before communicating the statement.

In cases involving the defamation of public figures, such as CEOs or prominent members, a plaintiff must prove that the defendant communicated the allegedly defamatory statement with actual malice or reckless disregard.

4. Harm Caused to the Victim’s Reputation

Finally, the defamatory statement must have harmed the plaintiff’s reputation. In workplace defamation, this harm typically includes professional setbacks, trouble finding work, and financial losses for a company.

How Businesses Can Prove Injurious Falsehood & Tortious Interference?

Injurious falsehood (also known as business or commercial disparagement) is a false and malicious statement that harms the plaintiff’s business. To prove injurious falsehood, plaintiffs must generally demonstrate that one of the following elements is true:

• A false statement was made about a title of property with reckless disregard for truthfulness (known as slander of title);
• A false statement was published with malice about the plaintiff’s product or goods (known as trade libel or product disparagement); or
• Product disparagement that specifically alleges a business’s food products are unfit for human consumption (known as food libel, food disparagement, or veggie libel).

Tortious interference is the wrongful act (tort) of interfering with a business’s activities. This tort is usually committed by a competitor who wants to harm a company’s ability to succeed in the marketplace. One common example of tortious interference includes posting fake negative reviews.

To successfully bring a claim of tortious interference, most jurisdictions require plaintiffs to prove the following elements are true:

• A valid contract or relationship exists between at least two entities,
• The defendant knew about the contract,
• The defendant intended to cause one of the entities to breach the contract,
• The defendant’s interference was not protected or privileged by law,
• A contract breach took place, and
• The non-breaching entity (the plaintiff) suffered quantifiable harm.

What Are Common Defenses to Claims of Workplace Defamation?

Before filing a defamation lawsuit, it is important to understand what potential defenses to defamation are available to the defendant. Below, we list the most common defenses to workplace defamation claims.

Privilege

In defamation law, the defense of privilege is the legal right to communicate statements in certain types of situations without fear of legal repercussions. The primary goal of privilege is to protect freedom of speech and the public interest.

Two common privileges come into play in workplace defamation. Absolute privilege grants immunity to speakers of certain types of statements regardless of intent, typically those made in the course of background checks, government proceedings, or other legislative, other quasi-judicial proceedings.

Qualified privilege protects speakers who publish harmful statements in good faith and without “actual malice” towards the plaintiff, such as during evaluations, investigative reports, or in discipline letters. If an employer provides a job reference without knowing that some contents are false, they may be protected from liability for defamation.

Consent

If an employee or employer consents to the other making or publishing a defamatory statement, the employer has absolute privilege to make that statement, even if it is harmful.

Truth

Defamation involves a false statement of fact. Therefore, a true statement can never be defamatory—even if it contains minor inaccuracies. The substantial truth doctrine states that if a statement’s main gist is true, the defendant may not be held liable for defamation.

Opinion

No matter how negative, an opinion is not defamation. Defamatory statements must contain an assertion of fact that can be proven or disproven.

The Difference Between Constructive Criticism, Opinion, & Defamation

Workplace defamation, opinion, and constructive criticism all boast distinct nuances in a professional environment which are important to understand for assessing the viability of a legal claim. A statement of opinion is a personal viewpoint or belief that cannot be proven or disproven as true or false. As discussed above, opinions are subjective and not defamatory.

Constructive criticism is a professional and respectful form of feedback intended to help individuals improve their performance or behavior. Constructive criticism is based on truth and is typically presented in a helpful, specific, and kind manner, focusing on the work or behavior rather than attacking the person.

Workplace defamation involves spreading false information or accusations about an individual that harms their reputation. This information may be communicated with mere negligence or maliciously or recklessly without regard for the truth. The information could be spoken (slander) or written (libel). The statement must be communicated to a third party to qualify as defamation.

The key differences between workplace defamation and constructive criticism include:

• Truth vs. falsehood. Defamation involves false statements, while constructive criticism is based on truthful observations.
• Intent. The intent of defamation is often to harm or discredit someone, while constructive criticism intends to help someone improve.
• Focus. Defamation often attacks a person’s character or reputation, while constructive criticism focuses on specific behaviors or work products.

Remedies to Address Workplace Defamation

There are several effective strategies to address defamation of character in the workplace. If you or your business is subject to false and harmful attacks, legal remedies may be available to you.

In this section, we list the most effective responses to workplace defamation. However, we also recommend consulting with an experienced defamation attorney who can advise you on available remedies specific to your situation.

Pursue Workplace Remedies

Before responding to a defamatory attack, it is important to consider whether that action could make the situation worse. Sometimes, firing an employee or filing a public lawsuit could draw more attention to defamation and further harm your reputation.

For businesses that are defamed by an employee, it may be tempting to fire them. However, it is best to speak with an employment law attorney first to ensure this action would not violate any contractual agreements. If your employee is a labor union member, your local or industry labor bureau can also provide information on your options.

For employees who have been defamed by their employer, several options to address it may include:

• Filing a complaint with human resources,
• Seeking a workplace investigation, or
• Requesting disciplinary action against the offender.

It is sometimes more beneficial for employees to file a wrongful termination suit than to file a defamation claim. If you have been fired due to a false accusation and are considering filing a defamation lawsuit, consult an employment attorney regarding your options for other employment-related legal claims.

Send a Cease & Desist Letter

If a disgruntled former employee defames your business, your first step may be to send a cease and desist or retraction demand letter. In fact, your jurisdiction’s laws may require sending a cease and desist letter before filing a defamation lawsuit.

A cease and desist letter formally demands that the recipient stop their unlawful behavior and puts them on notice that if they do not cease their actions and remove any harmful published content, they may face further legal action (such as a lawsuit).

File a Defamation Lawsuit

You may decide filing a defamation lawsuit is the best course of action if the defamation has caused significant harm to your or your business’s reputation, such as:

• Being fired unjustly,
• Receiving allegations of unlawful conduct,
• Being accused of malpractice, or
• Receiving fake online reviews.

An experienced defamation attorney can advise you on your options and help you decide on an effective strategy. They are adept at identifying anonymous reviewers or defamers and removing harmful online content about you.

Defamation lawyers also have extensive expertise in civil litigation, which increases your chances of securing a court order and obtaining damages. You may also be able to seek punitive or compensatory damages for the harm the defamer caused you.

Also, your attorney may secure an additional layer of reputational protection by obtaining an injunction to prevent the defendant from making further defamatory statements.

We Can Help You Explore Workplace Defamation Claims

If you are an employer or employee and want to explore if you have a valid claim for defamation, we can help. At Minc Law, we understand the catastrophic effects defamation in the workplace can have on your personal and professional life or your business’s reputation and bottom line.

We have extensive experience removing fake and anonymous online reviews, identifying unknown online posters, and filing a defamation lawsuit against necessary parties (if necessary). Litigation may be costly and may not always be the most effective way to resolve your defamation issue, so we help all clients explore the pros and cons of filing suit.

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October 4, 2021

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