Category Archives: Defamation

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

California Employers Cannot Demand Your Social Media Passwords

Giving Facebook Passwords to Boss Illegal in California

Should your boss be able to access your Facebook, Twitter, or LinkedIn page?  What if he demands that you give him your password to such sites as a condition of employment? Believe it or not, many employers in California are demanding that their employees give them access to their social media platforms. If the employee doesn’t comply the employer will show them the door. Is this legal? Not anymore. On September 27 2012, California Governor Jerry Brown just signed into law a bill passed in the California legislature:

Assembly Bill 1844 by Nora Campos (D-San Jose) prohibits employers from demanding user names, passwords or any other information related to social media accounts from employees and job applicants. Employers are banned from discharging or disciplining employees who refuse to divulge such information under the terms of the bill. However, this restriction does not apply to passwords or other information used to access employer-issued electronic devices. The bill further stipulates that nothing in its language is intended to infringe on employers’ existing rights and obligations to investigate workplace misconduct…. Proponents of Assembly Bill 1844 say this is a common-sense measure that will bring clarity to a murky area of employment law and stop business practices that impede employment.

I predict that the litigation under this new law will surround whether or not the employer is investigating workplace misconduct. When is an employer investigating? What are they investigating? Is there a formal process for this? California courts will have to settle all of these questions.

Moreover, this bill only applies to California. What about the rest of the country? The Password Protection Act of 2012 is a federal bill that is a making its way through the House of Representatives. In addition to forbidding employers from requesting passwords, it would prohibit employers from discriminating or retaliating against a prospective or current employee based on her refusal to provide access to personal accounts.


Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at or call his office at 949.667.3025.

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Filed under Company Property, Defamation, Freedom in the Workplace, Human Resources, Privacy at Work Rights, Social Media

Disparging Your Employer on Twitter

Disparging your employer on twitterA National Labor Relations Board report released last week attempts to explain the changing legal standards for social media usage in the workplace. It highlights a few of its administrative decisions regarding Twitter, Facebook, and other social media platforms.  One of the decisions interested me enough to re-post it here.

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Filed under Defamation, Discharge & Layoffs, Human Resources, Labor Law, Retaliation, Social Media