When Is A Performance Evaluation A Form of Defamation?
I used to wonder why defamation charges couldn’t be filed against a company for what was said in a performance evaluation, or perhaps even an internal reference check (e.g., by an employee who applied for a promotion).
Now I know the answer; in some states, such a lawsuit may be accepted by the courts and the employee might even win!
Take a minute and consider the facts of the following case.
The employee apparently didn’t like the overall performance evaluation that he was given and he responded by swearing and challenging the supervisor’s review. In response, the supervisor wrote down what the employee’s response was and submitted it to HR, encouraging the company to fire the employee. The company fired the employee, who then sued for defamation (the case took place in Illinois).
Is this defamation? Defamation may be defined as:
false statements published to a third party that harm the individual about whom they are made
The company’s basic defense was that the statements were never published to a third party, as they all stayed within the organization. The court concluded the third party could be anyone, including an internal party, such as HR!
Jury award — $300,000.
Note: the company never asked the employee for his version of the story; never checked with other potential witnesses to verify the behavior; and the employee apparently had no record of prior misconduct.
Source: “Defamation Dangers: Mind Your Memos And Other Internal Docs,” from ahi.com’s Manager’s Legal Bulletin.
This decision appears to really diminish the meaning of “employment at will.” But, it should be a boon for employment attorneys on both sides (hooray!).
Last time I checked, in Missouri internal corporate corporations are generally not “publications” and thus can’t be the basis for defamation claims.
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.”
In response to Chuck’s comment, some conservative courts might well view this claim as a subterfuge for a wrongful termination claim and disallow it under the employment-at-will doctrine.
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.
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.
Update: I did a quick WestLaw search using the names in the linked article and found nothing.
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.
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.