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California Employees Defamation Blog

Written by Paul Greenberg and edited by Jane Tanimura

Why an Employees Defamation Blog?

In the course of our 25 years representing employees, we have found a great need to protect the reputation and privacy of our clients whose rights were trampled upon in the course of unjust treatment at work. We have noticed that employees often tend to be unaware of their reputational and privacy rights. This is understandable given that the law on defamation and privacy is more complex than other areas of employment law, which in itself is one of the more complex and challenging areas of the law.

Your reputation and privacy are fundamental, and you should know that your employer does not have the right to make false statements about you or unjustifiably snoop into or publicize your personal affairs. We hope this blog will be informative to you and shed light on possible legal rights you might have against your employer and/or an individual who has violated your reputational and privacy rights.

An Alternative to Defamation: False Light Invasion of Privacy

A close ally to defamation is a claim for false light invasion of privacy. While both claims are designed to protect people from offensive facts stated about them, the difference is that defamation concerns statements of fact that are actually false, whereas false light is about false implications of fact. In other words, false light is more about the impression created by the publication rather than its veracity. False light may be more appropriate than a claim for defamation in cases where there is no direct false statement, but there is at least a publication of information that leaves a false impression that would be highly offensive to a reasonable person.

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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 maliceDeaile 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.

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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:

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About Paul Greenberg and
Greenberg & Weinmann

paul greenberg

Paul Greenberg is managing partner of Greenberg & Weinmann, a law firm that is committed to advancing justice in the workplace and protecting employee rights. For over 25 years, (the last 20 with partner Iris Weinmann), he has handled legal claims on behalf of employees, including over 50 defamation cases that have resulted in significant compensatory and punitive damages and Labor Code section 1050 penalties, in both state and federal court. Greenberg & Weinmann has successfully litigated defamation claims to verdict and received favorable appellate court decisions upholding or reinstating employee rights with respect to their defamation claims. Greenberg & Weinmann is based in Santa Monica, California but litigates statewide.

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The information contained above is intended for purely informational purposes.
It does not in any way constitute legal advice and should not be relied upon as such. 
Use of such material does not, in any way, constitute an attorney-client relationship; only an express signed agreement can create such a relationship.

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