Virginia law allows a person who has been the subject of libel or slander to bring a cause of action for defamation. Generally speaking, “defamation” is defined as a false statement about a person that is written (libel) or spoken (slander) to others, if the one making the statement knew that the statement was false, or, believing it to be true, lacked reasonable grounds for such belief.1
Employers need to beware of potential defamation claims made by disgruntled employees. Such claims may arise in several contexts, including criticism of an employee’s work, disciplining an employee or terminating an employee for cause, and when giving references for former employees, to name a few.
Additionally, statements that a person is unfit to perform the duties of his or her job, or has a “want of integrity in the discharge of the duties of [his or her] office or employment” are considered defamation per se. If an employee proves that an employer made a per se defamatory statement, the court will instruct the jury that it can presume the employee has suffered damages. This is a considerable blow to the employer/defendant, since the employee/plaintiff would no longer be required to prove that he or she was injured as a result of the statement. Because many alleged defamatory statements arising in the employer-employee context concern the fitness of a person to perform the duties of the job, employers must be particularly careful.
Don’t panic, though – not all negative statements about a person constitute defamation. Specifically, statements of opinion are not defamatory. To be actionable, the speech must be interpreted to state actual facts about a person, or must contain a “provably false factual connotation”.
That leads to the second reason not to panic – to constitute defamation, the statement must actually be false. A true statement does not support a cause of action for defamation. If the plaintiff cannot prove that the allegedly defamatory statement is false, he or she will not prevail.
Finally, statements made about employees may be considered “privileged”, and therefore protected, even if false. Virginia courts have held that “communications between persons on a subject in which the persons have an interest or duty” are privileged. This can include statements made between co-employees and employers in the course of employee disciplinary or discharge matters. The privilege can be lost, however, if the statements are communicated to third-parties who have no duty or interest in the subject matter (even if those third parties are also employees).
Employers must be careful. Just because you speak or write something negative about an employee doesn’t mean you can be successfully sued for defamation. But the landscape is tricky. Consultation with an attorney before communicating the results of a negative employee review, before terminating an employee for cause, or before giving a bad reference is always a good idea to make sure you’re not subjecting yourself or your company to a potential defamation lawsuit.