While most employment cases involve issues of discrimination or labor code violations, an increasing number of our clients are reporting defamation and slander concerns to us. Many of these are based on “internal” work evaluations and/or reasons the employer is giving to the Economic Development Department. The short answer is YES, you may sue for defamation in the workplace. Here’s some guidelines:
1. Defamation may be neither written nor oral (libel or slander, Civil Code Sec 44). Generally accusations of a crime, or something that directly injures you in respect your office, profession, trade or business is actionable. Civil Code 45. If the slander is “per se”, that is, no other words are needed to explain it, then damage to reputation is presumed and no other damages need be shown, such as lost wages.
2. The elements of an employment defamation claim in California include a publication, false statement, defamation and finding that the statement is not privilege or was motivated by malice and that the statement has a natural tendency to injure or cause special damages.
3. Here are some examples of workplace defamatory claims:
- “The employee made a $100,000 mistake in estimating a bid.” (Gould vs. Maryland Sounds Ind., 31 Cal. App 4th 1137 (1995); “employee was dishonest, unsatisfactory work, inefficient and insubordinate (Washer vs. Bank of America, 21 Cal2d at 828); “corporate officer was unscrupulous, irresponsible and using lies and hypocrisies”; employee fired for “not doing things properly and for not following office rules”; “engineer failed to cooperate lacked job knowledge.” (Agarwal vs. Johnson, 25 Cal. 3d 932, 944-945, disapproved on other grounds in White vs. Ultramar, 21 Cal.4th 563).
4. Are internal publications actionable? Yes. Kelly vs. General Telephone Co. 136 Cal. App. 3d 278 (1982) (publication applies to an employee’s statement to a fellow employee). Agarwal vs. Johnson, 25 Cal. 3d at 944 (wholly internal statements can be deemed publications. False criticisms in a performance review can form a defamation claim if they accuse the employee of criminal don cut, dishonest, incompetence or reprehensible personal characteristics or behavior. Jensen vs Hewell-Packward Co., 14 Cal. App 4th 958, 965 (1993). Call to action.
Department of Fair Employment & Housing (DFEH)
U.S. Equal Employment Oppotunity Committee (EEOC)