Monthly Archives: June 2016

Defamation, Slander & Libel in Employment Law – The Basics

Defamation Employment Law Attorney Libel Slander BasicsDefamation. Slander. Libel. These terms are used so often nowadays that children are familiar with them. How does defamation of character factor into employment law? Employees often feel like they’ve been defamed. But if these phrases mean what we think they do why aren’t there more lawsuits flying around? Can your boss give you a review that totally misrepresents your performance? Can you sue them? More importantly, should you sue them?

Defamation Basics

First of all, “defamation” is an umbrella term within which both “slander” and “libel” exist. Generally, slander is a spoken or oral statement and libel is a written statement.

To prevail in a case for defamation you must prove that a publication was made that is false and causes special damages. More specifically, the following are the essential legal elements of a claim for defamation:

  • False publication of a statement of fact (rather than opinion) that:
    • —in the case of libel (written publication), exposes plaintiff to hatred, contempt, ridicule or obloquy, or which causes him to be shunned or avoided, or has a tendency to injure him in his occupation;
    • —in the case of slander (oral publication), charges plaintiff with a crime, loathsome disease, impotence or want of chastity, or tends directly to injure him in his or her occupation;
  • Actual damage to plaintiff’s reputation (but damages are presumed if the publication is defamatory “per se,” see below); and
  • Causation (the false statement caused the harm).

Statements are defamatory per se (eliminating the need to prove actual damages) if the statements tend directly to injure plaintiff in respect to his office, profession, trade or business.

Proof that the allegedly defamatory statement is true is a complete defense in California.

The Exceptions Are Key in Employment Lawsuits

Slander Employment Law Attorney Libel Defamation BasicsAs with all legal rules, there are various exceptions to defamation. It is not uncommon for an employer to defame an employee, but get off the hook in a lawsuit because the false statement falls within an exception.

Only false statements of fact, not opinion, are actionable as defamation. This is one of the toughest challenges for an employee in defamation case. You essentially have to convince the Judge that the false statements were fact, not opinions. This is not always easy to do.

For example, is a negative performance evaluation fact or opinion? Generally, negative evaluations are usually held to be statements of opinion, rather than fact. That is unless the performance evaluation falsely accuses the employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics or behavior. But these issues are highly subjective.

Another common exception that causes problems for employees is privilege. An employer has a privilege to communicate, without malice, with persons who have a “common interest” in the subject matter of the communication. This obviously includes co-workers and managers at the company.

Because an employer and its employees have a common interest in preserving morale and job efficiency, an employer’s statements to employees regarding the reasons for termination of another employee generally are privileged.

But a common mistake made by employers is repeating the false statement to non-employees. If your employer makes false statements to prospective employers, the police, your family members, this exception may not apply and you can proceed with your case for defamation.

Should You Sue Your Boss for Defamation?

Libel Employment Law Attorney Slander Defamation BasicsThis is a tough question. Whether or not someone should file a lawsuit depends on a multitude of factors: legal, emotional, economic, and moral. If you really want to know if it is in your best interest to file suit against your former employer, you should consult with an employment lawyer.

Generally, there has been a trend away from defamation lawsuits in the employment context. Judges are swamped with employment cases and, in the writer’s opinion, look for reasons to toss them out of court. Therefore, only very strong defamation cases should be filed. Such cases necessitate that the employee has been harmed in a significant economic way.


Filed under Defamation

Evening the Playing Field: CA’s New Fair Pay Act

California New Fair Pay ActThe lack of wage equality amongst genders has been well-documented for some time and, as you may have noticed, has become a staple of candidates’ speeches in election years. And rightly so, for even in 2013 women earned 84 cents for every dollar a man earned. This gap is even worse for African American women (64 cents) and Latina women (44 cents). Pay discrimination of this sort is usually easy to hide by prohibiting or discouraging employees from talking about their pay. The employee’s fear of retaliation may also help to keep this illegal activity secret. California, however, had new legislation go into effect on January 1, 2016, to further curb this kind of activity.

The Original Fair Pay Act

The California Equal Pay Act (“EPA”) was passed in 1949 and had its last update in 1985. Though it helped in addressing the issue of pay inequality, it was not perfect and presented some loopholes that companies were able to use to their advantage. One such instance was the “same establishment” provision which prevented a female working at a facility from comparing her wage to that of a male at a facility at another location. If that was not enough, employers could raise the “any bona fide factor other than sex” defense and its overly broad interpretation to provide excuses for pay discrimination. Meaning they could simply say, “we paid her less because she’s not as fast, qualified, effective, etc., and get around the requirement.

Finally, though the Labor Code has provisions protecting employees that disclose their own wages, there were no specific protections for employees inquiring about the wages of others even if it was solely for the right to be paid equally.

A Leaner, Meaner Fair Pay Act

The California Fair Pay Act, which went into effect this year, will help reinforce the California EPA.  First, it does away with the “same establishment” requirement, so that employees performing the similar work at different locations are paid equally. Secondly, it has narrowed the “bona fide factor other than sex” defense to more specific defenses that the employer will have to use closing the ambiguous loophole from before. Finally, it explicitly prohibits retaliation or discrimination against employees who disclose, discuss, or inquire about their own or other coworkers wages for the purpose of enforcing equal pay under the California EPA.

Pay discrimination is not a fake issue brought up the sake of political debates, but a real thing occurring more than it should.  If you feel as though you are not making an equal amount compared to other employees doing similar work because of your gender, call an employment lawyer.

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