Comments on: When Is A Performance Evaluation A Form of Defamation?

By: Summary of My 12/8/05 Radio Interview: Are “Dis-eased” Employment Processes Costing You $$$$$$? - Charles A. Krugel

Sat, 29 Sep 2007 00:31:45 +0000

[...] Casualty Company. The direct link to George Lenard’s (George’s Employment Blawg) discussion is here. The HTML version of the decision can be found here. This narrowly construed case holds that [...]

By: Dennis Nolan

Dennis Nolan — Thu, 22 Dec 2005 00:41:47 +0000

I read the case and remain a bit puzzled. The reported comments hardly seem defamatory, but if they are, there’s no explanation why the jury rejected the qualified privilege. I suppose we have to assume that the comments were made maliciously or were distributed more widely than the privilege would allow. If so, the court’s holding that communications within a firm can constitute “publication” is hardly revolutionary. As the court’s opinion indicates, it’s almost black-letter law.

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

By: George Lenard

George Lenard — Wed, 21 Dec 2005 19:15:38 +0000

Dennis: Thanks for the comment. The case is at 823 N.E.2d 184.

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.

By: Dennis Nolan

Dennis Nolan — Wed, 21 Dec 2005 17:19:28 +0000

Update: I did a quick WestLaw search using the names in the linked article and found nothing.

By: Dennis Nolan

Dennis Nolan — Wed, 21 Dec 2005 17:15:18 +0000

Apart from the question of publication, an employer has the benefit of a qualified privilege. Absent malice or distribution of the comments to people with no need to see them, there would be no liability. What was different about this case? The article to which you link is pretty vague. On the basis of that description, there doesn’t seem to be any defamation or any publication outside the privilege. Do you have a cite to the court opinion?

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.