An employer’s negative statements about you can seriously impact your personal and professional reputation. You could be turned down for a new position, be passed over for a promotion, or lose your job.

If your employer knowingly or recklessly made false statements about you and you were harmed as a result, you can sue them for defamation of character.

This article shows how to prove a defamation claim and situations when defamation comes up in employment. Understanding your employee rights is essential to get the best outcome in a defamation case.

How to Prove Defamation

There are two forms of defamation:

• Libel: written defamatory statements (including newspapers, books, magazines, etc.)
• Slander: spoken defamatory statements

Whatever the form defamatory statements take, there are four requirements to prove a defamation claim.

Falsehood

The first requirement is that someone made a false statement of fact about you. There are two important points about falsehood.

Fact and Opinion

First, you can sue someone for making a false statement of fact about you, but not for expressing their opinion about you. Statements of opinion are protected under the First Amendment.

Employment law attorney Christopher Lenzo explains the difference this way: “Someone saying ‘You’re a jerk’ or ‘You’re a bad employee’–that is an opinion in the eye of the beholder. Now, if someone says, ‘You’re a bad employee because you’re late to work every day,’ that’s a statement of fact [that we can verify].”

While it might seem simple, parties often dispute the difference between fact and opinion in defamation cases. The person suing says someone made a false statement about them, while the person being sued says they were just expressing their opinion.  

Sometimes people make factual statements sound like opinions. For example, they might say, ‘I believe Sam robbed the convenience store last week.’ Is this a statement of fact or opinion? What is the context? The intention?

The exact legal line between fact and opinion can be unclear and varies by jurisdiction. An employment law attorney with experience in defamation can help you understand the exact legal requirements in your state.

True Statements

Second, truth is one of the primary defenses against defamation. If a statement is true, it isn’t defamatory–regardless of how unflattering or harmful it may be to your reputation.

Publication

The second requirement is showing that the person published or communicated their false statement about you to a third person.

Essentially, this means that the person made the defamatory statement to someone else instead of keeping it to themselves.

This requirement can be tricky in the employment context. “Because performance evaluations are internal, there might be a question of whether the statements were published to a third party,” Lenzo says. “The argument might be: This statement is being made by agents or employees of the employer to agents or employees of the employer, and therefore it was never published to a third party.”

Fault

The third requirement is showing that the person is at fault for making the false statement. They didn’t just make a false statement about you–they did it in an inappropriate way.

In defamation law, the standard for proving fault depends on who was defamed.

Private Figure

Say the person who got defamed is a private individual (like most employees). In this case, the defamer has to at least be negligent when they make the defamatory statement.

To be negligent means the defamer didn’t use reasonable care to determine if the statement was true or false before saying it. Maybe they didn’t take the time to check their facts or how reliable their source was. They could have easily verified their false information but didn’t.

Public Figure

Say the person who got defamed is a public figure, such as a politician. In this case, the defamer had to either:

• Know the statement was false when they made it; or
• Show reckless disregard for the truth or falsity of the statement

This test is known as the “actual malice” test. Usually, it is more difficult to prove than negligence in defamation of private persons.

Unprivileged

The third requirement is showing that the defamatory statement was unprivileged. If a statement is unprivileged, the defamer didn’t have the right to say it.

Generally, employers have the right to disclose information about their employees to prospective employers or other parties with a legitimate interest in the information (such as co-workers doing employee reviews). This right is known as qualified privilege.

“Courts generally apply qualified privileges where there’s some form of communication that is either necessary or should be promoted,” Lenzo says, such as an employer providing an employment reference.

There may be some contexts in which courts don’t want to protect employers’ speech about employees, he adds. For example, “Courts want an employer to be able to give a candid employment reference. They don’t want an employer to just randomly assassinate your character in contexts that don’t serve any social or public purpose.”

In many states, job reference immunity statutes protect employers’ qualified privilege. Employers are presumed to be acting in good faith when they share information about their employees with prospective employers, even if some of the information is negative.

To presumption of good faith is lost if the employee can prove the employer had actual malice:

• The employer knowingly made the false statement; or
• The employer recklessly disregarded the truth or falsity of the statement

The evidence required to show actual malice varies by state. In some states, you need a preponderance of the evidence. In other states, you need clear and convincing evidence.

As we saw above, actual malice typically applies in defamation of public figures. It is harder to prove than negligence. You can think of employers’ qualified privilege as bringing the higher standard typically used for public individuals into employment defamation.

Harm

The last requirement is showing that the defamatory statement harmed your reputation. Showing harm to your personal or professional life can be difficult, but there are a few options.

In some cases, you can show defamation per se. Defamation per se means that the false statement was so bad that it couldn’t help but harm your reputation. For example, if an employer falsely said:

• You stole from the company
• You engaged in sexual harassment
• You have a criminal record

You may have a case of defamation per se, where the statements are clearly damaging to your reputation.

Depending on your situation, other types of damages include:

• Nominal damages. A small amount awarded when you can show defamation per se but not actual damages resulting from the defamatory statement.
• Actual damages. Compensation for harms you suffered because of the defamation, including emotional distress. Actual damages can be for past and future injuries, such as lost wages or earning potential.
• Special damages. Compensation for a specific loss or outcome from defamation, such as losing your job or a promotion.
• Punitive damages. These damages punish the person who defamed you in especially outrageous incidents of defamation.

Defamation in Employment

Having laid out the general requirements for defamation, here are two situations where defamation most often comes up in the employment context:

Employment Reference

Say you are applying for a new job and ask your former employer for a reference. Your former employer agrees and speaks with the prospective employer. In their conversation, your former employer shares negative information about you. As a result, the prospective employer doesn’t give you the new position.

As we saw above, employers generally have the right to share information about former employees with a prospective employer. Employers are presumed to be acting in good faith when they do so.

In order to prove defamation in this case, you will have to show that the employer made a false statement about you and did so either knowingly or recklessly.

You can then point to the harm you experienced as a result (not getting the job). In some cases, you may be able to show defamation per se, depending on how damaging the employer’s false statements were.

Employment Review

Say you are up for a promotion, and management conducts an employee review. Management relies on reports your supervisor wrote. You end up not getting promoted.

You will need to show that you were not promoted (harm) because of what your supervisor said about you in their reports. Then you will need to show that the negative things your supervisor said were false and that they made them knowingly or recklessly.

Employee Options

Employer defamation cases can be very hard to win. Lenzo says that in over 25 years of representing employees, “I don’t think I’ve ever handled a defamation case for an employee.”

Because of how difficult it is to prove the actual malice standard in employment defamation, Lenzo cautions employees that they may not get anywhere with a defamation claim.

Plus, unless an employee has experienced some “demonstrable reputational harm that has had some real significant economic impact,” it can be hard to get a lawyer to take a defamation case except on an hourly basis, which can be costly.

So what other options do employees have besides a lawsuit?

“If an employee gets a performance evaluation that they think is unjustified, particularly if it includes inaccurate statements of fact, it’s important for them to rebut that in a timely fashion, preferably in writing,” Lenzo says.

Lenzo shared additional insight: “We as lawyers tend to assume the worst of people. But there are supervisors or human resource people or other people in management who are decent human beings, and if an employee points out a problem about unfairness or inaccuracy in a supervisor review, they will do something about it.”

Questions for an Attorney

Because of how difficult it can be to prove an employer defamation claim, getting legal advice from an experienced defamation attorney is essential. Many attorneys provide initial free consultations to prospective clients. These meetings allow the attorney to hear the facts of your case and for you to determine if the attorney meets your needs.

To see whether an attorney is a good fit, ask informed questions such as:

• What is your fee, and what billing options do you offer?
• What are the expenses involved in suing an employer?
• What is your experience as an employment lawyer?
• Do you have experience with defamation cases?
• Is legal action the best strategy against my employer?
• What is the statute of limitations on a defamation lawsuit?
• What are my state’s laws and legal standards governing defamation?
• What kind of damages could I get in my case?

Finding the Right Attorney for Your Needs

It is essential to approach the right type of attorney—someone who can give you legal help through your entire case. You can visit the Super Lawyers directory and use the search box to find a lawyer based on your legal issue or location. 

If you are wondering about your legal options for fighting employer defamation, consider looking for an employment law attorney.