Defamation often occurs from statements made by an employer about an employee. Written defamation is libel and oral defamation is slander. In order to be considered legally defamatory a statement or writing must be published to someone other than to the individual employee. For example , if the boss says or writes something that an employee believes is defamatory, unless a third person hears or reads the comments or writings, there is no defamation under the law. This requirement is called “publication.”
In Massachusetts, an employee may recover if he or she can show negligent or intentional publication of a defamatory statement. The term “intentional,” as it is used here, is really self explanatory since it simply means that the employer meant to publish the statement. In other words the employer didn’t accidentally make the statement and he made it with the intent that other people would hear it and believe that the remarks were true. The term “negligent” is a little more subtle, but as a general rule it means that even if the employer didn’t want other people to hear or read the comments he should have known that when he “published” the statement someone would hear or read the statement.
The statement itself, in order to be defamatory, must subject the employee to contempt, ridicule, or hatred, or discredit the employee in the minds of their co-workers, or respectable members of the community. Also the statement as it pertains to the employee must be false. Therefore, if an employee did in fact steal something from the employer and is called a thief by the employer, there is, of course no defamation.
Employers have a “limited privilege” however, to say things about an employee that they have a reason to believe are true. This issue often surfaces at unemployment hearings when an employer describes an employee’s conduct using words that offend the employee. Or when an employer is conducting an employee evaluation and describes the employee’s performance in a critical manner. Not only are employer comments made in judicial or quasi-judicial hearings subject to this “limited privilege,” but employer opinions of an employee’s performance, even if incorrect, are still covered by the privilege.
The above summary is a very general overview of a what can be some very complicated issues concerning defamation in the work place. If you are an employee or an employer, and are facing defamation issues, call an attorney who focuses on employment law. It is important to know your legal rights so that you can make informed decisions.
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