If an employer willingly makes false accusations against an employee or former employee that is malicious in nature, they can be held liable for defamation. When that accusation or statement is written, it is called libel. A false accusation made orally is considered slander. Defamation can be difficult to prove and the burden of proof falls on the victim. Most defamation cases involve employers who have given a former employee a damaging recommendation to a prospective employer. Proving that the employer acted with malice is a challenging task.
The Burden of Proof
There are five key areas that a victim of defamation must prove for a successful lawsuit. Although these elements vary from state to state, they are generally consistent in these areas.
- The employee must prove that the employer made a false accusation or statement maliciously, with the intent to damage the employee’s reputation or chances for employment with another company. Opinions and statements that are hurtful or true are not considered defamation.
- The employee must show that the employer actually published or stated the derogatory statement to another person, either in writing or orally. The employee can also claim self publication if the employer made the false accusation to them as a reason for termination, which then requires them to give as a reason for dismissal to future employers.
- The employee must prove that the employer knew, or should have known, that the accusation was false when they published it. If an employer makes an accusation based on a rumor that they failed to investigate, then they may be held liable for defamation.
- A victim of defamation must also prove that the accusation or statement made about them was not privileged. A privileged statement is one that may be derogatory about the employee, but is given without malice to a prospective employer.
- Defamation claims must prove that the plaintiff was harmed by the statement. Employers who reveal information about criminal activity or say that an individual is not qualified or skilled to perform a job could be held liable for defamation. To prove harm occurred, the employee must show that the remarks cost them the opportunity for employment.
Seeking Legal Counsel and Representation
If you believe you have been a victim of defamation, it is imperative to consult with an experienced and reputable employment lawyer. Red Bank, NJ, Marlton, NJ, Newark, NJ, New York, NY, and Philadelphia, PA employment lawyers at McOmber McOmber & Luber, P.C. have been representing defamation victims for over 40 years. We understand how damaging defamation can be and how difficult it is to prove that libel or slander has occurred. We are dedicated to helping our clients gather vital witness and documentation to support their claims.
It is crucial to the success of your case to present as much physical evidence as possible. Since most defamation takes place in private conversations, it can be hard to prove that an employer acted with malice. Our team of skilled New Jersey employment lawyers know how to obtain witness testimony that can prove the employer acted maliciously, which hurt the former employee’s chances of getting hired by a new employer.
