In a recent case, the Eastern District of Virginia found an employer may be liable for defamation after making allegedly false statements to a former employee’s new employer. The employer stated the employee was fired for insubordination, was a disgruntled former employee, and might sabotage their products. The employee claimed the statements were false and defamatory and the court found the employee sufficiently alleged defamation against the employer. This case can be a cautionary tale for other employers to learn from.

Meredith v. Nestle Purina Petcare Co. (U.S. Dist. Ct., E.D.V., Rich. Div., Feb. 2, 2021).

In Meredith v. Nestle Purina Petcare Co., Heidi Meredith worked for Nestle Purina Petcare Company (“Nestle”) from May 2015 to June 2019. On June 26, 2019, Nestle terminated Meredith for “conduct.” At the time of her termination, a human resources representative told Meredith that Nestle’s policy was to not give referrals to prospective employers and to only confirm dates of employment, position, and salary.

In September 2019, one of Meredith’s former supervisors asked her if she had interest in working at Old Dominion Warehouse, Inc. (“ODW”). ODW operates as a storage and distribution center for Nestle. Meredith expressed interest in the job, contacted ODW and eventually accepted a position with ODW. During Meredith’s first week working for ODW, two people working for Nestle repeatedly called ODW and told Meredith’s new boss that he should fire her. In one call, an employee of Nestle stated that Nestle fired Meredith for insubordination, that Meredith was a disgruntled former employee, and that Meredith might sabotage Nestle’s products. ODW’s owner refused to fire Meredith, but Nestle continued to email and call ODW’s owner urging him to fire Meredith. Meredith denied all the claims the callers made. Meredith filed suit for defamation, alleging Nestle defamed her by communicating false and defamatory statements to her current employer.

To state a claim for defamation in Virginia, a plaintiff must show: (1) publication; (2) of an actionable statement; (3) with the requisite intent. At issue here is whether or not Nestle’s statements were actionable. For a statement to be actionable, it must “contain a provably false factual connotation.” Statements that only express the speaker’s opinion are not actionable, because they cannot be shown to be false. Generally, statements that “depend largely upon the speaker’s viewpoint are expressions of opinion,” and, thus, are not actionable. 

However, if a statement of opinion also includes a provably false connotation, it may be actionable. An expression of opinion may be actionable when it “reasonably can be construed as a statement of fact because it is laden with factual content and the underlying facts are allegedly false.” Additionally, for statements to be actionable, they must have the requisite “defamatory sting.” The statement must “harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”

The court here determined that Meredith adequately alleged the statements at issue were actionable defamation. Regarding the “insubordination” statement, the court found that the statement conveys the factual basis for Meredith’s termination. Since Meredith alleged that she was not terminated for insubordination, but Nestle made statements that they did fire her for insubordination to ODW, the court determined these statements contain “a provably false factual connotation.”

The court also found that the “sabotage” and “disgruntled” statements plausibly convey factual content. The court determined that the question at issue was whether or not a reasonable listener would understand the communication as statements of fact. The court reasoned that these statements were “laden with factual content,” because they reasonably communicate that Meredith had sabotaged Nestle’s products in the past. The court concluded that when read together, the statements “are plausibly tied to a provably false factual underpinning.” Since the statements constitute opinions based on untrue facts, the court found they reasonably communicate factual content. The court also found that these statements contained the requisite “sting,” since they collectively impugn Meredith’s “abilities or character to suggest that she is unfit for her job.”

Nestle argued a qualified privilege attached to the statements, since Nestle had an interest or duty in providing the communications to ODW. However, a defendant can lose or abuse that privilege in certain circumstances, such as if the statements were made with knowledge that they were false or were made in bad faith. The court here found Meredith alleged a “greater pattern of animus” that could establish that Nestle lost or abused the privilege. Thus, the court concluded that Meredith sufficiently alleged defamation against Nestle.

What Does Meredith v. Nestle Purina Petcare Co. Mean For Employers?

Here, the court offered guidance on what allegedly defamatory statements by former employers may be considered “actionable” and should be instructive for other employers.  This case highlights the importance of employers being cautious when giving employment references and having policies in place regarding providing employment references for former employees. Generally, when providing employment information to potential future employers regarding former employees, business owners should keep the information provided as minimal as possible. Typically, dates of employment, last position held, and last salary earned are the pieces of information that should be provided to a potential employer, and additional information should not be shared, as a matter of policy.

You can find more information about defamation in the workplace here.

For more guidance or information or for help creating an employment reference policy for your workplace, contact the employment law experts at General Counsel, PC today at 703-991-7973. Attorneys at General Counsel, PC are specialized in labor and employment law and have experience working with business owners and individuals across Virginia, specifically in Fairfax County, Arlington, Loudoun County, and Prince William.