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Defamation
Employees may assert claims for defamation against a former or current employer based on statements
made at or before the time of termination or to prospective employers after termination if the statements
were false, non-privileged statements of fact that expose the employee to "hatred, contempt, ridicule or
obloquy which causes him to be shunned or avoided or has a tendency to injury him in his occupation"
(written statements, or libel) or "charges the employee with a crime, loathsome disease, impotence or
want of chastity, or tends directly to injure him in his or her occupation" (verbal statement, or slander).
The employee must prove actual damage to his or her reputation unless the statements were defamatory
"per se," that is, they tend to directly injure the employee "in respect to his office, profession, trade or
business . . . by imputing to him general disqualification in those respects which the office or other
occupation peculiarly requires or charge the (employee) with a crime."
Truth is a defense to defamation, and statements of opinion, such as performance reviews, even if
objectively wrong, are not defamatory unless they accuse the employee of criminal conduct, lack of
integrity, dishonesty, incompetence or reprehensible person characteristics or behavior. In addition, an
employer is protected, or "privileged," if it communicates false statements about the employee to persons
with a common interest, such as co-workers or prospective employers, if it is done without "malice," i.e.
without "a state of mind arising from ill will, evidencing a willingness to vex, annoy or injure another
person." Statements by co-works are generally privileged in the same way.
Aside from common law defamation, the California Labor Code also declares it a misdemeanor for an
employer who, by any misrepresentation, prevents or attempts to prevent a former employee from
obtaining employment. The employer is subject to treble damages in a civil suit filed by the employee.
Prudent businesses attempt to limit their liability for post employment misrepresentations and
defamation by confining statements about former employees to the dates of his or her employment and
the title of the last position held. In some cases employers have been held liable to successor employers
where they recommended a former employee for employment without reservation where the employee
was known to pose a risk of harm to third parties.
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