FREE CONSULTATIONS:

888.465.5110

NO FEE UNLESS YOU WIN

The “Privilege” Defense to Defamation Claims

There are four common defenses to defamation claims: privilege, consent, truth and opinion.  This entry will discuss the most widely employed defense to workplace defamation claims – absolute and qualified privileges.

Absolute Privilege. An absolute privilege relieves the defendant or employer of any liability or responsibility for defamatory statements, even if the statements were published with malice.  For example,

•  statements made by an employer in the course of “official proceedings” such as unemployment hearings, wage claims, or discrimination investigations, where the statements are related to such proceedings

•    statements made in an arbitration under a collective bargaining agreement that are not published to persons lacking a legitimate interest in the proceedings

•    statements made during a legally required background inspection of a potential employee

•    statements made during any governmental or quasi-judicial proceedings (which include statements made to the police as part of an investigation into criminal activity)
Qualified Privilege.  A qualified privilege, on the other hand, would relieve the defendant or employer of liability or responsibility if the statement was made without malice.  “Malice” requires showing that the defendant harbored ill will toward the plaintiff or that the defendant lacked reasonable grounds for belief of the statement or publication.  For example, qualified privilege has been found to apply in certain circumstances:

•    Statements made in employee evaluations, performance reviews, or appraisals. Unless the evaluation falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics or behavior, a bad performance review will not be the basis of a libel suit.  The qualified privilege has been held to apply even when the employer’s evaluation was objectively wrong and could not be “supported by reference to concrete provable facts”

•    Statements made by an employer in employment references.  Section 47(c) of the California Civil Code allows an employer to disclose certain information about a person’s employment to interested parties including a potential new employer.  For example, references and any other information a previous employer communicates, upon a potential employer’s request, that relate to the employee’s “job performance or qualifications” and whether the former employer would rehire the employee

•    Co-Workers. In general, employees may not sue co-workers for defamation based on their conduct relating to “personnel actions” such as terminations, performance evaluations or work assignments

•    Discussions about employee grievances and resolving the grievance

•    Discipline or discharge letters

More information on consent, truth and opinion defenses can be found here.

Read more

Postmates pays $8.75 million to settle worker misclassification lawsuit

California courts have been dealing with a growing number of worker misclassification cases that have resulted from the expansion of the gig economy. In one such lawsuit, a federal judge recently approved…

READ ARTICLE

Misclassified property workers awarded $2 million in overtime lawsuit

A recent case serves as an important reminder about the protections that California labor laws provide to workers. Employers can be liable if they misclassify their workers and fail to comply with…

READ ARTICLE
Venture capital firm co-founder resigns amid sexual harassment scandal

Venture capital firm co-founder resigns amid sexual harassment scandal

Silicon Valley has recently been hit by a series of complaints about inappropriate behavior in the workplace. Not long ago, Uber CEO Travis Kalanick stepped down amid allegations of sexual harassment within…

READ ARTICLE
San Francisco attorney wins $2 million in whistleblower lawsuit against city

San Francisco attorney wins $2 million in whistleblower lawsuit against city

A former deputy city attorney won a wrongful termination and whistleblower lawsuit against the city of San Francisco. The San Francisco Superior Court jury awarded Joanna Hoeper over $2 million for lost…

READ ARTICLE
SEEN ON
bloomberg
sfgate
kpix
cnnmoney
marin-ij
dailypost
news10