Defamation refers to uttering an untruthful statement about someone. “Libel” refers to written defamation. “Slander” refers to oral defamation. In the employment context, defamation has an extra hurdle. In Texas, to constitute defamation at work, the defamation must be made in the course and scope of employment. That is, the defamatory statement must be related to the speaker’s job. So long as the speaker makes the statement to persons with a duty or need to know, then the speaker will be protected by a qualified privilege. To qualify as workplace related defamation, the statement must be made as part of one’s job. If the statement is part of someone’s job, then it will be protected by a “qualified privilege.”
For example, if a manager makes a statement to someone in Human Resources about an employee, even if that statement is not truthful, then the qualified privilege would probably apply. The manager’s statement would be protected by this qualified privilege. If the manager makes a statement to a potential employer, then again that statement will be deemed to have been made in the course and scope of employment. So, the manager’s statement will be protected by the qualified privilege.
An employee can overcome the qualified privilege only be showing that the speaker acted with actual malice. Showing malice is a high burden. Malice refers to a person knowingly and deliberately causing harm. Malice is more than a mistake or a misunderstanding. To show malice, an employee would have to show the speaker knew or should have known the statement was not true and that the speaker sought to cause harm of some sort. Many employees have come to me seeking redress for defamation. Rarely have I seen sufficient evidence to make a case of malice. It is quite difficult to get inside a person’s head and show what the manager was thinking. That sort of evidence is rare.
For example, an employer fires a person for alleged stealing. The employee did not steal. But, how do we show malice? That is, how do we show the employer knew or should have known the theft allegations were not true? Most times, we cannot. How do we show the manager made the statement hoping to cause harm to the employee? Again, it is rare that an employee would have that sort of evidence.
Many of the normal principles of defamation law apply to the workplace: the statement must be clear and unambiguous. It cannot be capable of two different meanings, one of which might be non-defamatory. Truth is always an absolute defense to defamation. But, for most people charged wrongly with theft, there is little anyone can do about that sort of termination. Defamation lawsuits in the workplace are just too difficult.