Often time employees feel that negative statements, that have been made about them, regarding their job performance or regarding some particular interaction with the client, are so negative that it actually defames their character or their reputation. The concern always, from the part of the employer, is that you do not want to be doing things that are intentionally putting yourself in a position where you are vulnerable to a lawsuit. Defamation can both include slander that is verbally spoken, as well as written statements that could be impugning somebody’s character.
There are categories of defamation where you are required to prove actual damages and certain categories where you are not required to prove actual damages. One of the categories of defamation involves negative statements which relates to someone's job or livelihood. However, for the employer, exceptions to the defamation rules and the defamation law exist with regard to performance evaluations. For example, when it comes to evaluating an employee's performance, if done discretely, you are going to have a privilege in the law that enables you to speak about an employee performance. Of course there is nothing to prevent an employee from bringing a claim for defamation against you. The question always becomes whether you have a viable defense and you need to examine the relationship of the people who are actually engaged in the writing of the negative words, as well as any discussions that were heard. Did the discussions or the writing go beyond just the employer? Was it disseminated to the public? Was it disseminated to somebody outside the particular employee group? Those are kinds of concerns that need to be addressed.
If you have any doubt about what to write in an employee performance review, or if you have any doubt whether to issue someone a written letter of warning which might in some way impugn their reputation in terms of their job, misconduct or some type of fraud, you might want to consider contacting an attorney upfront. Once that letter or that poor performance review is out there, you can’t retract it. So the down side of doing it without an attorney is you can’t undo that action. Getting upfront advice and information is always key to avoiding litigation. We would highly recommend if you are on the fence about something or if you have any doubt you can contact an employment lawyer who can help you navigate through that area.
This informational blog post was provided by Kim Berg, an experienced White Plains, NY Employment Attorney.