Can you think of three work place interactions where your comments have the potential to defame an employee? Most of us can easily name one – – giving an employee reference. How about a work place meeting and a company newsletter?
Before examining these three different interactions, let’s define what is meant by defamation, libel and slander. Defamation is the board category and libel and slander are subsets. The elements of a defamation claim are: (1) a false statement, (2) communicated by speech, conduct, or in writing to a person other than the person defamed, and (3) the communication is unprivileged and is defamatory, that is, tends to harm one’s reputation so as to lower the person in the estimation of the community or to deter third persons from associating or dealing with that person.
Libel is injury to a person’s reputation by a published writing. Slander is the speaking of false and malicious words concerning another.
As mentioned, the most obvious interaction where defamation can occur is giving an employee reference. A few years ago, you were probably advised to give a “name, rank and serial number” type of reference. In order to allow an employer to give a reference without the fear of being sued, the legislature enacted Wis. Stat. 895.487. If you are requested by the employee or a prospective employer to provide a reference, you are presumed to be acting in good faith, and unless lack of good faith is shown by clear and convincing evidence, you are immune from all civil liability that may result from providing that reference.
Let’s turn to the second interaction. You are in a meeting with two of your subordinates and one subordinate has just given you an explanation as to why that subordinate’s portion of major project was not completed. This is not first time you have been given a less than satisfactory explanation from this employee. Frustrated, you respond by saying, “Damn you, that’s bulls@*t, it’s not acceptable.”
A couple of months later the employee finds another job and sues you and the company for defamation. The quoted statement was part of the factual situation the Wisconsin Court of Appeals considered in Wildes v. Prime Mfg. Corp. Without deciding whether the statement was defamatory or an “earthy epithet of disapproval,” the Court of Appeals ruled that even if the statement was defamatory, it was conditionally protected.
In Wisconsin, “a defamatory statement is conditionally privileged if it is made on a subject matter in which the person making the statement and the person to whom it is made have a legitimate common interest.” The Court went on to say, “the . . . statement was made in the course of a meeting with co-employees about a subject of common concern to each. This is a classic situation where the doctrine of conditional privilege applies.”
A conditional privilege means that you are conditionally immune from being sued. However, there are five ways in which the condition can be lost. Here it gets a little technical.
The first way would be if you either knew that employee had done everything the employee could to have resolve the situation that lead to your comment, or if you recklessly disregarded information that would have given you such knowledge; second, that your statement was made for some ulterior purpose, unrelated to the common concern of the company’s business; third, that your statement was made to persons you did not reasonably believe shared the common concern for your company’s business; fourth, that your statement included defamatory matter that was unrelated to your company’s business; or, fifth, that there was an unprivileged communication in addition to the one protected by the conditional privilege.
The third interaction involves a company publication that is distributed to employees. In Zinda v. Louisiana Pac. Corp., 149 Wis.2d 913, 440 N.W.2d 548, 552 (1989), the Wisconsin Supreme Court was faced with the following factual situation. As a matter of practice, the company put in its newsletter the names of persons who were hired and the name of and reason for each person fired.
Approximately 160 copies of the newsletter were distributed to employees by placement in the lunchroom. Employees were not restricted from taking the newsletter home, and employees regularly took the newsletters out of the workplace. A copy of the newsletter reached the local hospital, where Zinda’s wife worked, and two of her co-workers read the reference to Zinda’s termination.
In rejecting his defamation claim, the Supreme Court stated, “We conclude that the common interest privilege attaches to the employer-employee relationship in this case. Employees have a legitimate interest in knowing the reasons a fellow employee was discharged. Conversely, an employer has an interest in maintaining morale and quieting rumors which may disrupt business.” Whether it is best practice to distribute this kind of information is a question each company has to decide.
Finally, no article on defamation would be complete without mentioning that “substantial truth” is a complete defense to a defamation action. The doctrine of substantial truth provides that “slight inaccuracies of expression” do not make the alleged libel false.
So before you hit the email send button or vent your frustration to a co-worker, stop and think. A moment of reflection is better then any legal defense that is available.
This article is intended for general information purposes and highlights developments in the legal area. This article does not constitute legal advice.