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The publication, whether oral or written, 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. Employers often argue that they are immune from liability for these statements based on the defense of “conditional privilege,” which grants immunity against defamation for communications made on subjects of mutual interest (i.e. publisher makes the defamatory statement to a person who has a common interest in the subject matter of the statement).
Many employers often misinterpret this conditional privilege as some kind of absolute privilege. Far from it, the conditional privilege can be overcome if a plaintiff shows that the communication was either motivated by malice, or an abuse of the conditional privilege.
Malice is a complicated concept and one that judges and lawyers often get wrong. Generally, for purposes of showing an abuse of the conditional privilege, malice only requires a showing of a state of mind arising from hatred or ill will evidencing a willingness “to vex, harass, annoy or injure.” Burnett v. Nat. Enquirer, Inc. (1983) 144 Cal.App.3d 991, 1009; Mocom v. S.F. Shopping News (1935) 4 Cal.App2d 284, 2909; Davis v. Hearst (1911) 160 Cal. 143, 157-163. Some common ways to demonstrate malice is by showing that:
Subject to a showing of malice, the employer may be liable for defamatory statements he or she published about an employee’s work performance.
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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