The newsletter report is unduly alarmist. Employers needn’t fear that routine evaluations, handled prudently, will expose them to liability.

I am working on a more detailed case note for the firm web site, and will link it from the Blawg when it is ready.

Thanks for reading; comments raising good legal points such as yours did
are always much appreciated.

If a supervisor maliciously put defamatory comments in an evaluation, or if an employer distributed them to those not in HR or in the chain of command, it would be hard to have any sympathy.

Another point I neglected in the previous comment: sometimes one can’t tell the extent to which the outcome of a case like this is the result of poor lawyering.

In other words, perhaps it could have been won on the very same facts had it been presented differently.

Difficulty appreciating this possibility is especially true when reading only a brief news story, rather than the full opinion. But appellate opinions tend to be written to make the conclusions appear much more inevitable than they actually were, so even they must sometimes be taken with a grain of salt.

Also, the common law of defamation includes the concept of “qualified privilege,” which would typically apply in such a situation. It would require proof the statements were made with knowledge they were false or reckless disregard for their truth or falsity.

Nonetheless, the advice in the article is sound. Always better safe than sorry.

Another good tip is to write in terms of what you actually know to be true, not what you conclude.

For example, document that “employee X REPORTED that she saw employee Y steal from the company,” not that “employee Y stole from the company.”

Also, statements couched as opinion, not fact, are safer. Better to say that “I BELIEVE employee X is telling the truth about employee Y stealing” than that “employee Y stole.”