Talkin' Smack? Get 'Payback': What to do About Workplace Slander

Nowadays, one of the most frequent occurrences of defamation or slander is in the process of a former employer's written or oral references about you, or information that is dug up during a public (or private) background check.

Defamation and slander happen so routinely in the process of background checks, including credit report information that contains false information, that it is called the "second most common corporate illegality" according to The Wall Street Journal (behind tax cheating).

So what happens when a former employer or employee defames you – or a public credit record company or investigator spreads false or malicious information – sometimes information that implies you are sexually deviant, or accuses you of wrongful criminal conduct? Do you have rights, and can you "fix" things on your own? How do you even know – and can prove – that you were slandered?

Defamation laws are also called slander laws or libel laws. They fall under tort
law. Libel laws vary by state. For the legal definition of slander or libel, someone must maliciously or negligently make a negative false statement of fact about a person to a third party that causes harm to the person. 

Harm related to the workplace and employment includes causing coworkers not to associate with an employee or causing a former employee to lose a job opportunity. However, harm doesn't have to actually occur if a false statement of fact is so defamatory in and of itself, that it can't be taken any other way. In other words in legalese, such statements are called defamation per se. Examples related to the workplace and employment are false accusations of serious criminal misbehavior or sexual misconduct.

Other laws that come into play, are those enacted by many states that allow employers to speak candidly about former employees during employment background checks with immunity from defamation lawsuits. If an employer responsibly tells only the employment-related truth about a former employee within the confines of state law, it's not likely to be defamation. Truth is always a defense, the saying goes. 

Employers are protected from liability for disclosing truthful information about job performance and reasons for termination. For example, if a supervisor truthfully tells a background-check agency that she fired the former employee in
question for poor job performance, that's not defamation, if the supervisor has
witnesses or documentation to back up her claim. But, if the supervisor in this
example maliciously lies about firing the former employee for stealing from the
company, that's an intentionally harmful false statement of fact.

The malicious act of firing an employee under the guise of a false statement of fact (such as for retaliatory reasons) can be harmful enough to be defamation per se, before the false statement has been communicated to a third party. 

It'll take investigation by a lawyer who specializes in the defamation laws of your state, to determine whether or not a statement or act warrants a defamation lawsuit. If, instead of filing a defamation lawsuit, you simply want your defamer to stop defaming you (such as during background checks), consider asking a lawyer to write a cease-and-desist letter demanding that your defamer immediately stop or else suffer the legal consequences.

A cease-and-desist letter (C&D letter) is often enough to stop a defamer in his or her tracks, as it's a valid legal instrument against libel or slander that may be used as evidence in court. In fact, should you end up suing your defamer, you might have a stronger court case if you first sent a C&D letter to him or her.

Of course, the flip side of all this is not to be a "defamer” yourself – this includes Twitter, posts, blogs, emails, Facebook, etc. Ever get the urge to write or say something really nasty about someone online? Remember: Don't! As dear old Shakespeare once wrote, “Your words can become your worms."

(Richard G. Marcil www.MarcilAttorney.com 586-412-0444 is an attorney in Clinton Township practicing in divorce, criminal defense, civil rights, and personal injury cases, as well as family law and business litigation.)