The Boys Are Back in Town!

CELA, the 1200 member strong statewide organization of lawyers dedicated to enforcing employee rights, had its annual convention in Oakland last week.

There was a special first day session on Thursday dedicated only to defamation, which was attended by an overflow crowd. Paul Greenberg was one of the three presenters along with “The Don of Defamation” Chris Whelan and outgoing CELA chair Bernard Alexander.

One of the many highlights of the defamation program was the power point presentation given by Paul Greenberg and co-authored by Jane Tanimura of Greenberg & Weinmann, the editor of the California Employees Defamation Blog.

 Pictured from left to right: Chris Whelan, Paul Greenberg, Bernard Alexander

Making and Responding to CCP 998 Offers in Employment Matters

 June 2014 – In an article published in Advocate: Journal of Consumer Attorneys Associations for Southern California, partner Iris Weinmann gives an overview of making and responding to CCP 998 offers.

See Full Article: Making and Responding to CCP 998 Offers and Appeals

Defamation Liability Related to Workplace Investigations

Frequently, workplace events give rise to a workplace investigation.  The investigation may be conducted by an in-house HR person or a professional outside investigator.  Workplace investigations play a central role in determining whether to discipline or terminate an employee and can have legal consequences for both employees and employers.  An action for defamation can potentially result if false statements are made to the employee’s detriment.  Although an employer may argue that statements made in the course of a workplace investigation are protected, that privilege would usually be conditional at best, meaning it would be lost if the publication was motivated by malice.  Deaile v. General Telephone Company of California (1974) 40 Cal.App.3d 841, 847.  

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Examples of Defamatory Criticism of Work Performance

In an earlier blog entry, we discussed how the publication of false criticism of poor performance, incompetence, or dishonesty—whether made in the context of a performance review or as the employer’s stated reason for the employee’s termination—is defamation per se. An employer may be liable for such defamatory statements subject to a showing of malice. Here are some examples of what California courts have held to be defamatory criticism of work performance:

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Defamation Defense: What is the Conditional Privilege?

California Civil Code § 47(c) grants a conditional privilege against defamation to communications made without malice and on subjects of common interest. This conditional privilege is often used by employers to argue that they should be protected from liability for statements made about employees to other employees in the employer’s organization. Critical to determining whether the conditional privilege is even applicable is 1) whether the allegedly defamatory communication was made on a matter of common interest and 2) whether the employer acted without malice in making the statement. Only if both of these requirements are met can an employer be immune from liability for his or her statements.

Continue reading: Defamation Defense: What is the Conditional Privilege?

Defamatory Defense: What is the Absolute Privilege?

 Another defense to defamation is the absolute privilege. California Civil Code § 47(a) and (b) provide a limited set of circumstances in which an employer is relieved of any liability or responsibility for his statements even if they were published with malice. In general, there are five kinds of statements that are absolutely privileged:

Continue reading: Defamatory Defense: What is the Absolute Privilege?