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.

Defamation is that cause of action many people consider, but which is very difficult to prosecute. To show defamation, you have to show what the other person was thinking. You have to show a bad intent. In Hawbecker v. Hall, No. SA-14-CV-1010 (W.D. Tex.), the plaintiff did show defamation. It was a strange case. A woman in Colorado became convinced that Paul Hawbecker, who stayed with her and her daughter one night many years before, had molested her daughter and taken photos of the daughter. Michelle Marie Hall started a Facebook web page called, “Please help me stop a child molester!” Ms. Hall lives in Colorado and Mr. Hawbecker lives here in San Antonio. The mother messaged Hawbecker’s friends, family and others to warn them about him. She liked his employer, which apparently gave his employer access to the webpage.

The Plaintiff was a karate instructor. Customers started avoiding him. He was removed from teaching children and girls. Soon, he was fired. His romantic life suffered. So, the instructor sued Ms. Hall for defamation. Ms. Hall could not afford a lawyer, but she argued that a court in San Antonio would not have jursidiction over her. She lived in Colorado. The court disagreed. It looked at various factors, the essence of which was her attempts to contact persons in Texas on Facebook to tell them about Mr. Hawbecker supposedly molesting young girls. Those contacts gave the court jurisdiction.

The plaintiff moved for summary judgment, which the court granted. Ms. Hall’s story was contradictory. She claimed there was a Sheriff’s investigation, but there was not. She claimed to have pictures, but the provenance of the alleged picture was very dubious. It was not clear what the picture even represented, said the court. Worse for the defendant, Ms. Hall claimed she did not try to contact anyone on Facebook, but her FB posts showed different. In any lawsuit, credibility is critical. If you lose it, you are done. And, then the judge noted this: “the affidavit was replete with strange, conflicting and changing versions of events from Ms. Hall and her daughter.” The judge is saying the defendant’s story simply was not credible. So, the court granted summary judgment. It later held a trial just to determine damages.

It noted that accusing someone of molesting a child is probably the greatest harm a person can inflict, short of violence. Even though the court recognized that Ms. Hall had limited financial resources, it found general damages of $250,000. It also awarded $100,000 in punitive damages. The court found this sort of defamation was defamation per se. That is, it was so defamatory that no evidence of the harm of the slander was necessary. The harm was readily apparent, said the court. It turned Mr. Hawbecker’s life upside down and cost him at least one job. The defendant’s conduct, said the court, was deplorable and unacceptable. “In the age of social media, what we say on the Internet matters, and accusations of severe misconduct carry potentially severe consequences,” concluded the court. Yes, indeed.

Coach Briles filed suit against Baylor University last December for defamation. See my post about that lawsuit here. In that lawsuit, he claimed Baylor said he knew about rapes and sexual assaults and did nothing about them. He claims din his lawsuit that was false, that he did not know about the sexual assaults. Well, now, he has dropped his lawsuit. He dropped his lawsuit just as a lawsuit filed by a former Athletic department assistant was getting started. Colin Shillinglaw filed his own suit against Baylor. Mr. Shillinglaw sued Baylor for claiming he had mis-handled the incidents involving the sexual assaults and rapes. In response to Mr. Shillinglaw’s lawsuit, Baylor provided evidence of Coach Briles’ knowledge of the incidents. Up to now, the administration has kept quiet about specific evidence, probably to protect the confidential nature of the claims.

For example, in response to a text about a football player exposing himself to a masseuse and asking for special favors, Coach Briles responded. “What kind of discipline . . . She a stripper?” The player, Tevin Elliot remained on the football squad and the incident was not reported to administration officials. Later, that same player would be accused of rape by two women in separate incidents. In 2013, a female athlete accused several players of gang raping her. She eventually told her female coach. When the female coach approached Coach Briles about it, he said, “These are some bad dudes. Why was she around those guys?” The response filed by the school argues that the football program was a “black hole” into which disappeared these allegations of brandishing a gun, drug use, domestic violence, indecent exposure, academic fraud, and physical assault.  See Chicago Tribune report.

It would be surprising if Coach Briles did not know about the actions of his players. Most coaches, perhaps all coaches are approached about what their players allegedly have done. And, really, the coaches know their players very well. So, Coach Briles’ suggestion that he knew his players were “bad dudes” reflects very poorly on him and the sort of players he recruited. The best defense to a defamation lawsuit is the simple truth. One can guess that Coach Briles filed his lawsuit as a bluff, hoping the administration would not reveal its information. He may have been trying to take advantage of the school’s difficult position. It must and is required to protect the confidential nature of these allegations. But, if so, he was wrong to assume the administration would not provide enough information to protect itself.

People in public life have to be careful about they say and do. Pres. Bill Clinton was sued by several women during the last couple of years of his administration. Pres. Trump appears headed toward those same troubled waters. During the campaign a former Apprentice contestant, Summer Zervos, accused Mr. Trump of groping her and assaulting her. The candidate denied it. Now, she has sued the soon-to-be President. Her attorney is the celebrity lawyer, Gloria Allred of Los Angeles. See CBS news report. Ms. Zervos says she will drop the lawsuit if Pres. Trump will simply acknowledge the truth of her claims. That does not seem likely. Mr. Trump enters office already a party to several lawsuits. It looks like his tally will only increase.

But, the President-Elect did settle his Trump University lawsuit. He agreed to pay the victims of his fraud $25 million. See CNN news report.

It was big news just a few months ago that Wells Fargo bank pressured its employees to engage in fraudulent sales tactics. Some employees were even issuing credit cards and setting up new bank accounts for its customers – without the customers’ permission. It was fraud. But, was it illegal? That distinction matters in a state like Texas. In Texas, there is no law protecting employees from employers engaging in fraud. But, there is a law against requiring an employee to engage in illegal activity. Alex Leal has filed suit against Wells Fargo. His lawsuit appears to lie right at the intersection of what is illegal and what is fraudulent but perhaps lawful. He was a branch manager at a branch on the West side of San Antonio. In his lawsuit, he says he was fired because he refused to go along with the sales tactics.

He also alleges defamation. I just wrote a post about defamation here and how hard it is to show defamation in the work place. To win, Mr. Leal must not just show management lied about him, he must show they knew it was a lie and they sought to cause him harm.

Mr. Leal is also suing for age discrimination, saying management preferred younger employees because they were more likely to go along with these fraudulent sales tactics. He says he was replaced by a 29 year old manager. See San Antonio Express News report.

Coach Art Briles has filed suit against Baylor University. He filed suit for libel, saying Baylor is spreading false allegations that he knew of sexual assaults and did not report them. See Dallas Morning News report. “Libel” refers to defaming someone verbally. Slander refers to defaming someone in writing. Baylor has been very careful about what it says about Coach Briles. There have been a few stories just recently that Coach Briles was aware of an alleged gang rape incident and did not report it to Baylor authorities. See SB nation report. Coach Briles claims that what Baylor is saying about him is keeping him from finding a new coaching position. He was just recently overlooked for an open head coaching job at the University of Houston, He had formerly coached at U of H before he started working for Baylor.

The sad truth is that defamation claims in Texas are very difficult for the plaintiff. What an employer says about an employee is accorded extra protection in Texas. The employer receives a qualified privilege when it discusses an employee or former employee. That means Coach Briles would have to show Baylor acted with actual malice when it said those things about the coach. To show malice, the plaintiff must show the employer knew or should have known what it said was false and that it did so with intent to cause harm. Simply showing an employer knew something was false, as opposed to simple mistake, is a very high obstacle. But, to also show the employer made that false statement with the intent to cause harm is huge. Unless Coach Briles has an inside witness who can attest that the Baylor spokesperson wanted to be sure Coach Briles never worked again, the coach will lose his defamation lawsuit.

That is why lawsuits alleging defamation in the work place are so rare. Who would ever have that sort of evidence? Many clients have asked me about suing their former employer for something the employer has said. Yes, many employers do defame former employees. But, unless the law changes, those sorts of lawsuits will remain exceedingly rare.

A growing problem across the internet are online reviews. They are everywhere. But, online reviews represent a problem because they can be manipulated. Or, worse, for some professionals or small business owners, a person can post false, negative reviews and cause serious harm. One former client posted a false, defamatory review about a lawyer in California. The lawyer, Dawn Hassell sued her former client and Yelp. Ms. Hassell won by default and secured a $557,000 judgment for defamation.  But, Yelp appealed. On appeal, the California appellate court found in favor of the lawyer. It rejected Yelp’s arguments based on Sec. 230 of the Communications Dccency Act, claiming it was not responsible for a third party post. The higher court also remanded the matter back to the trial court to narrow the statements that Yelp must take down from its website. See ABA Bar Journal news report.

In the legal business, lawsuits are governed by deadlines referred to as “statutes of limitation.”  A lawsuit must be filed within the applicable statute of limitation.  A suit based on personal injury must be filed within two years of the act complained of.  If the last day of the two year period falls on a weekend or a holiday, then the statute of limitations period is extended until the next business day.  A lawsuit based on the state statute which prohibits discrimination must be filed within two years.  This statute is known as the Texas Commission on Human Rights Act.

A suit based on defamation, libel or slander must be filed within one year of the act complained about.  A suit based on breach of an oral contract must be filed within two years of the alleged breach.  Suit on a written contract must be filed within four years of the alleged breach.

Of course, there are many exceptions to these statutes of limitation.  If you have questions, you should speak with a qualified lawyer.

Lawsuits are tricky. They must be filed within a certain deadline, known as "statutes of limitation."  If a person misses the statute of limitation without a very, very good reason, that person cannot file the lawsuit. Statutes of limitations are very important. A suit based on personal injury must be filed within two years of the act complained of. If a person is in a car wreck, that person must file a lawsuit within two years of the car wreck. 

If the last day of the two year period falls on a weekend or a holiday, then the statute of limitations period is extended until the next business day. A lawsuit based on the state statute which prohibits discrimination must be filed within two years. This statute is known as the Texas Commission on Human Rights Act. 

A suit based on defamation, libel or slander must be filed within one year of the act complained about. A suit based on breach of an oral contract must be filed within two years of the alleged breach. Suit on a written contract must be filed within four years of the alleged breach. 

Of course, there are many exceptions to these statutes of limitation. If you have questions, you should speak with a qualified lawyer. 

This is a blog.  Blogs are growing in popularity.  On this blog, you can find my name and contact information easily.  But, a few blogs are anonymous for various reasons.  One such blog, "Reynolds News & Information," was started by an anonymous blogger known as "Trooper."  The blog attacked an Ohio based software developer, Reynolds & Reynolds.  The blog described R&R’s products as "crap" and accused its new CEO of being a thief.  R&R sued Google seeking the identity of the blogger.  The software developer says it needs the identity so they can sue the blogger for defamation and business disparagement.  R&R filed suit in Houston, Texas.  Trooper hired a lawyer, Shelly Skeen, to defend his interests.  Trooper stands on the First Amendment to block the attempt to secure his identity.

Google offered to provide the identity to the judge and let the judge decide if his identity should be revealed.  The judge, instead, ordered that the identity be revealed completely.  The First Circuit in Houston affirmed the lower court ruling.  Trooper then appealed to the Texas Supreme Court.  Meanwhile, the blogger took down his blog.  

R&R believes the blogger is an employee.  The employer claims the U.S. Supreme Court has held there is no right of anonymity for an employee who is criticizing his employer.  Trooper denies being an employee of R&R.  Indeed, Trooper claims he is a citizen of Ohio and that rulings by a Texas court do not apply to him.  Oral arguments before the Texas Supreme Court were held in November.  The Supreme Court’s decision is now pending.   See Austin American Statesman report

If Trooper is using his blog to discuss problems at work with co-workers, then his comments would probably be protected under the National Labor Relations Act.  But, even in that situation, I cannot imagine how he would have a right to anonymity.  Google is trying to steer a middle ground, not willingly giving up the identity.  But, I am sure that is based more on Google’s respect for the internet than on legal grounds.  

But, if Trooper’s blog is a simple straight ahead attack on R&R, his comments would not receive any particular protection under Texas law.  See my other post about a disaffected employee who who set up a wesbite to attack his former employee.  A blog must follow the same laws regarding defamation as any other public forum.