There is a growing need for employers to monitor what and how they communicate in the workplace. What seems to the employer as a fair constructive criticism can potentially open a legal claim against the business. This is especially true as related to reviews and terminations.
In a recent federal Virginia case, Bates v. Strawbridge Studios, the court allowed former employees to pursue their defamation claims against their former boss who had made disparaging statements about them to a customer. This shows a growing need for employers to find out the boundaries of what they can and cannot say within the scope of their own employment. Typically in Virginia, employers are protected under the “qualified privilege” defense when responding to a defamation claim. For a conversation to fall within the scope of this “qualified privilege,” both parties involved in the communication must have an interest to claim such privilege. This means that, even if the employer has a legitimate interest in making statements about a former employee, if the other person involved in the communication doesn’t have any corresponding interest, there may be a valid defamation claim against the business.
In a recent Virginia Supreme Court ruling, Askew v. Collins, an employee of a drug treatment court successfully sued the presiding judge for defamation per se. The judge had made false statements to a newspaper that the employee had been institutionalized. Despite this statement not being published in the newspaper article, the mere discussion still led to a defamation per se claims against the judge. In a defamation per se case, the claimant does not have to prove damages, and here, the Supreme Court eventually awarded $350,000 to the employee.
These cases show how vital it is for employers and their businesses to take caution about what they discuss with anyone regarding their employees. Merely avoiding the topic of employees is virtually impossible for employers to sustain a viable business. Thus, it is ideal to create the proper procedures when it comes to employee evaluations, discipline, and correspondence. Employers should seek legal guidance in implementing such procedures so that they can create a workplace environment that is free from potentially devastating legal liabilities.
Andy Baxter on Defamation
The matters discussed in this blog are for informational purposes only and no legal advice is intended.
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