June 13, 2018
THIS ARTICLE WAS FIRST PUBLISHED ON HRLAWS.COM’S TENNESSEE EMPLOYMENT LAW LETTER BY BUTLER SNOW’S DAVID L. JOHNSON
Allstate Insurance recently learned about the consequences of workplace defamation the hard way. Four former workers filed a defamation suit against Allstate, alleging the company fired them and wrongfully told hundreds of employees and others that they violated its conflict-of-interest policy. An Illinois jury found that Allstate lied and ruined the employees’ reputations, and it awarded them more than $27 million. That’s real money.
Employers should be wary of defamation claims by both current and former employees. Libel is written defamation, and slander is oral defamation. To prove a defamation claim in Tennessee, a plaintiff must show that the defendant publicized a statement, the statement was false and disparaging, and the statement was made with reckless disregard for the truth. Tennessee also recognizes “false light invasion of privacy” claims. Under such a claim, a statement that’s technically true may still be actionable if it’s highly offensive and places someone in a false light.
There are a number of defenses to defamation claims. Of course, the truth is a defense. But there’s also a general privilege for statements made in the course and scope of employment. Thus, a manager who writes something negative about an employee—regardless of the truth—typically can’t be sued for defamation. Along those same lines, opinions generally aren’t considered defamatory. Also, an employee’s internal report of workplace harassment typically can’t give rise to a claim.
About 20 years ago, the Tennessee Supreme Court refused to allow claims for “self-compelled publication.” In that case, a fired employee sued her former employer, arguing that she was compelled to reveal that she was fired for reasons that she claimed were false. Following the approach taken by a majority of courts in other states, the supreme court found that accepting such an argument “would significantly compromise . . . well-settled principles encompassed by the at-will[-]employment doctrine in Tennessee.”
Here are a few tips to lower your risk of becoming a defendant in a defamation lawsuit:
- Implement and enforce a neutral reference policy. If a third party asks about a former employee, simply respond that company policy allows you to confirm only the employee’s position and dates of employment. Otherwise, a former employee may claim that you are perpetuating false accusations against him and preventing him from securing new employment.
- Tread carefully when telling coworkers about an employee’s departure. Less is more. Rarely do others need to know the circumstances under which an employee was terminated. Particularly if a gray cloud hovers over the departure, you should share necessary details with others only on a need-to-know basis. An employer that suggests an employee was fired for illegal or unethical conduct can put itself at risk.
- Implement an antigossip policy. Monitor the workplace to make sure employees aren’t sharing rumors about others. That may also include keeping an eye on Facebook and other social media posts.
- Train managers not to make statements that could be construed as malicious. The more thoughtful and objective their communications, the better. Venting and exaggerating can cause problems.
Although we don’t see a whole lot of defamation lawsuits arising out of workplace disputes, they certainly exist, and they can be expensive to defend. By taking a few simple precautions, you may be able to dodge a bullet.
David Johnson is a partner in Butler Snow’s labor and employment practice group in the Nashville office. He may be reached at david.johnson@butlersnow.com.
