Defenses to Defamation

While defamation is a very prevalent byproduct of termination and one whose effects can be long lasting, there are still ways an employer can escape liability for defamation. One such means is to bring a defense to an employee's claim of defamation.

The most common defenses to defamation are: 1) truth; 2) consent; 3) privilege; and 4) the statute of limitations.

Perhaps the most distinct aspect of the defamation cause of action is that falsity is required. In other words, the statement publicized about the plaintiff must be false in order to prove defamation. Therefore, it may come as no surprise that truth would hurt or even defeat entire defamation claims. The entire purpose of the defamation cause of action is to provide a remedy for individuals who have had their reputations maligned. While the law is capable of providing a remedy to people whose reputations were wrongfully maligned, those whose reputation have been maligned due to truthful accusations unfortunately may have no legal recourse. People are allowed to spread truth to others, and an employee who was for example accused of doing drugs on the job and actually did do drugs on the job cannot evade the damage to his or her reputation by attaching liability to another. Consequently, in order to bring a cause of action for defamation against an employer, or to add the cause of action to a wrongful termination case, the defamatory statements in question must not be actually true.

However, the burden is on the defendant to prove that the defaming comments were actually true. Truth is an affirmative defense to defamation, and that means that the defendant must try to establish the truth in order to gain the defense.

The second affirmative defense to workplace defamation is consent. The employee must not have consented to the defamation if she intends to bring a successful cause of action against her employer for defamation. An example of how an employee may have consented to the defamation would be when an employee takes a defamatory statement written on a note in the employee file and shows it to people around the office. The note had not been shown to anyone until the employee herself made it publicly known. Because she basically volunteered the defamatory statements to others, courts likely would not compensate her for the defaming statements, as the publication was entirely her own doing.

However, if the defamation was republished as a foreseeable consequence to the defamation, then the employer is in fact still liable. Thus, the employer cannot just put a note on an employee's chair saying, "I think you are stealing from the company," and claim that the employee had consented to the defamation by then going to her neighboring coworkers and telling them about the note. Such a reaction would be expected from any employee who just received such an accusation, and so the employer would still be liable for the employee's republication of the note to other workers.

Next on the list is "privilege." Privilege is the first defense of these which is "qualified" or "conditional." Therefore, if a defamatory statement is privileged, it may pose a successful defense to a defamation claim, though it also may not. Privileges are situations where the law has recognized justifiable reasons for spreading defamatory statements to others at the workplace. Recurring examples for the work environment would be "common interest" situations as well as employer references. "Common interest" means that the people conversing about the defamed have some kind of unifying interest that requires honesty or privacy. For example, an employer may spread defamatory remarks to management as he discusses an employee and whether or not the business should terminate her. Personnel decisions require candidness and detail, and so the law will protect such a conversation from scrutiny. As well, the law will protect statements made by employers to other employers through referral communications, as prospective employers require the same kind of candid conversations with those who have worked with the potential employee in making their personnel choices as do current coworkers.

However, because privilege is a "qualified defense," the statements made by the defaming employer must not be malicious or born of ill will towards the employee in question. This is a very important stipulation, because it is very rare that an employer would intentionally state a falsehood about an employee and at the same time be conversing with a "common interest" in mind. If the employer deliberately states something false about an employee at a management meeting, then it is illogical that the employer was actually trying to enable personnel decisions as much as he was trying to unduly influence them. Therefore, while the "privilege" defense may seem quite strong, it is often difficult to establish for defendants.

Finally, employers can always defer to the statute of limitations to defend against a former employee's claim of defamation, assuming it applies. The statute of limitations is a legal timeframe within which a plaintiff must bring a defamation claim before courts will no longer allow the plaintiff to claim it. For defamation claims, the statute of limitations is one year. CCP §340(c). However, that one year timeframe does not actually begin until the plaintiff or employee learns of the defamation. But from that moment onward, the claim must be brought by year's end.

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If you have been defamed at or by your workplace, contact the renowned defamation attorneys at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.