If you’ve lost your job, been denied promotions, or been given a bad reference due to defamation of character in the workplace, you may have the right to sue.
What is workplace defamation?
Defamation of character in the workplace is when your employer or coworker makes a false statement about you. It can range from false statements about your work performance to accusations of serious crimes.
Defamation can be by a coworker to your boss or a coworker starting rumors among other coworkers. It can also be someone from your job trying to prevent you from getting a job somewhere else.
Defamatory statements can be verbal or in writing (such as texts or emails). Written defamation is called libel. Spoken defamation is called slander.
What is not defamation?
To have a claim of defamation, you generally need to prove both a false statement and that the person who made it knew or reasonably should have known it was false.
An honestly held opinion is generally not defamation of character in the workplace.
Honest mistakes, such as a manager incorrectly remembering who completed a task or was supposed to complete a task, will also generally not fall under workplace defamation.
Defamation vs. Workplace Politics
There are many toxic workplaces where employees try to take credit for each other’s work or try to put each other down. This is not normal behavior and may cross the line into being illegal.
The motives are usually clear — financial gain through a raise or promotion or causing someone else financial harm by preventing that person from receiving the same.
Exactly where it crosses the line to constitute defamation is a tricky balancing act. If you believe you’ve suffered financial harm because of any false statement, you should consider talking to a defamation attorney.
How to Prove Workplace Defamation
There are generally two sides to proving workplace defamation. You’ll usually need to have proof of the statement and proof that it was false.
For written statements, you’ll usually want to try to get a copy. You may also be able to subpoena records from your employer through discovery.
For verbal statements, you might need witnesses to the statement. You can also count as a witness, but having additional evidence can overcome having your case dismissed as a he said, she said situation.
You may also want evidence to repudiate the defamatory statements. This can include past performance reviews or coworkers who can testify about your reputation.
An employment attorney can help you determine what evidence you need in your specific situation. The sooner you contact an attorney, the easier it usually is to get the evidence you need.
You don’t need to have decided 100% that you want to file a defamation lawsuit when you contact an attorney.
What are the defenses to workplace defamation?
The main defense to a defamation of character claim is that the statement was true or had a substantial basis in the truth. This is the real reason many employers do formal performance reviews or write employees up for disciplinary situations.
There’s also a general understanding that employers and other workers are entitled to an opinion. If they say you’re a bad worker, they generally don’t have to prove that you are only that they had a reasonable basis for believing so.
While bad references may go against an overly cautious HR department’s policies, they are not in themselves illegal in most places. In fact, the defamation laws in some states even give additional protection to employer statements during reference checks compared to more public acts of defamation.
How much can you get from an employment defamation case?
In an employment related defamation case, you’ll often need to prove actual damages. This might be what you would have been paid at a job you lost due to a false reference or the raise you lost due to a wrongly denied promotion.
You may also want to ask a lawyer about a civil lawsuit for a hostile work environment, discrimination, or other related claims. Each type of case has different possible damages and required proof.
Most legal action touches upon multiple areas of the law. Even if you end up not having a strong defamation lawsuit, you may have another strong claim.
Should you tell someone to stop making false statements?
Telling a former employer or even current employer that you intend to file a defamation claim or giving other indications that you potentially sue could put you in a tricky situation.
While you generally have the right to tell someone to stop making defamatory statements, it could also tip the employer off to cover up evidence. It’s also common for employers who are accused of improper conduct to attempt to further damage a person’s reputation to keep people from believing the defamation claim.
When an employer lies about you, it can be a good idea to talk to a lawyer first. A lawyer can help you figure out how to preserve evidence and guide you on what steps you should take next.
Do you have to arbitrate a defamation claim?
It’s increasingly common for employers to put mandatory arbitration clauses in employment contracts. Mandatory arbitration clauses are often legally invalid, so you should ask your lawyer to review yours.
In some places, the local court procedures require you to try arbitration, mediation, or some other alternative dispute resolution step before you can continue your case. In most cases, you only need to try to resolve your case and maintain the option to proceed to trial if you can’t get what you feel is a fair outcome.