Defamation and Employer References

Talk with an attorney before making potentially defamatory statements about former employees.

Church Law and Tax 1991-11-01 Recent Developments

Employee Relations

A federal court in the District of Columbia threw out a lawsuit brought by a worker against his former employer for allegedly defamatory references given to prospective employers. The worker was employed as a bookkeeper for a secular company. His employment was marked by difficulties with fellow employees. On one occasion, a disagreement escalated into a fist fight. Without explanation or advance notice, the worker quit his job. He later applied for another job, and the prospective employer sought references from the former employer. One supervisor stated that the worker was “wholly incompetent” and “not eligible for rehire.” Another supervisor stated that the worker was “undesirable as a candidate for rehire,” and that he had “personality conflicts” with co-workers. The worker sued his former employer, and these supervisors, for defamation on the basis of these statements. The defendants asked the court to dismiss the case, and the court did so. It emphasized that all of the allegedly defamatory statements were protected by a “qualified privilege” which it defined as follows:

One who in the regular course of business is asked by a prospective employer … for information concerning a person, is entitled to the defense of qualified privilege if his reply would otherwise be regarded as defamatory …. The qualified privilege serves an important public function in the employment context. Without the privilege, references would be even more hesitant than they are to provide candid evaluations of former employees. In order to overcome the qualified privilege, the plaintiff must show that the statements were made with malice. Once a communication is deemed privileged, the burden of proof to demonstrate malice rests with the plaintiff. To show malice, the plaintiff must show either that the statements were made with knowing falsity, in bad faith, or with reckless disregard of the truth.

Applying this standard, the court concluded that the former employer and supervisors were protected by the qualified privilege with regard to information they shared in their references, and that the former worker had the burden of proving that the reference statements were made with malice. The court concluded that the former worker had produced no evidence to demonstrate that any of the statements had been made with malice. With regard to the supervisor who stated that the worker was “wholly incompetent” and “ineligible for rehire,” the court observed:

[The supervisor’s] statement was made on the basis of her knowledge of plaintiff’s work and the circumstances surrounding his departure. She believed her statements to be true. Therefore, her statements were not knowingly false nor made in bad faith or reckless disregard of the truth. Moreover, [her] evaluation of plaintiff as “wholly incompetent” is a non-actionable statement of opinion. Accordingly, plaintiff cannot overcome the qualified privilege ….

The court reached the same conclusion with respect to the statements made by the other supervisor. It noted that the worker walked off the job without any advance notice or warning, and that he had documented problems with co-workers. Accordingly, the statements that he was “undesirable as a candidate for hire” and had “personality conflicts” with co-workers were true. Further, they were statements of opinion and as such could not be the basis for defamation. Finally, the court rejected the worker’s claim that his former employer’s evaluation of his performance as “OK” contradicted the supervisors’ statements that he would not be eligible for rehire. The court observed: “The circumstances of his departure from [his former employer] surely make him an undesirable candidate for rehire. Contrary to [his] contention that [his former employer’s] seemingly contradictory statements are evidence of bad faith, the record indicates that [the former employer and its supervisors] were simply trying to be charitable in evaluating [his] performance as ‘OK.'” This case illustrates three important principles that are of relevance to church leaders. First, truth is a defense to defamation. The statements made by the former supervisors were true, and could be documented to be true. Second, statements of opinion (as opposed to statements of fact) ordinarily cannot be defamatory. And third, in many states, employers are protected by a qualified privilege when giving references on former employees. This qualified privilege, where applicable, generally prohibits the employer from being guilty of defamation unless the former employee can prove that statements of fact given by the employer in a reference were false, and made with malice. Malice generally is interpreted to mean that the employer either knew the statements were false, or that it made them with a reckless disregard as to their truth or falsity. Note that not all states recognize the qualified privilege. As a result, employers should not make potentially defamatory statements about former employees without the advice of a local attorney. Hargrow v. Long, 760 F. Supp. 1 (D.D.C. 1991).

Termination of Employees

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