Employers are always hesitant to give references on employees because they fear a defamation lawsuit. What employers can say about former employees is protected, to a certain extent, by privilege.
First, we'll look at the concept of defamation and then at how someone can use qualified privilege as a defense against a charge of defamation, and finally at how qualified privilege affects employers.
What is Defamation?
Defamation is the act of harming the reputation of another by making a false statement to another person. The act of defamation may be a false written statement or a false oral statement, through charges of libel and slander. Libel is the legal term for a written defamatory statement; slander is the legal term for an oral statement.
In the U.S., the person making the accusation of defamation (the plaintiff), the person who has allegedly been defamed in a civil case, has the burden of proof. In order for a statement to be defamatory, it must be both false and communicated to others. The plaintiff must also show that harm has been done to the plaintiff's reputation, usually measured in economic terms. You may have seen $1 awards to defendants for frivolous cases in which there was no economic damage.
Qualified Privilege as a Defamation Defense
Privilege is a special legal right or immunity granted to a person or persons. Qualified privilege is immunity (protection) from the penalty of a lawsuit, usually a lawsuit for defamation, for acts committed in the performance of a legal or moral duty and acts properly exercised and free from malice.
Qualified privilege is usually used in cases where the person communicating the statement has a duty or interest to make the statement. The person making the statement must show that he or she has made the statement in good faith, believing it to be true and that the statement was made without malice.
Actual malice in the context of defamation is making public a statement that the person knows to be false and acts with reckless disregard for the statement's truth or falsity. If malice can be shown, qualified privilege is not a protection against defamation. Malice malice in a defamation case would be knowing that the information is false but acting with "reckless disregard" for the truth.
One example of qualified privilege is the immunity of members of the press from defamation charges for statements made in the press in good faith unless it can be proven that they were made with malice. Other examples when qualified privilege is used are:
- Proceedings of regulatory agencies, sessions of legislatures, and governmental bodies
- Fair criticism in a review
- Statements made in self-defense or to warn others of harm or danger
Other Defenses Against Defamation
Here are several other defenses against a charge of defamation.
The truth is said to be the best defense against a defamation claim; if the statement against another can be shown to be true, then it isn't defamation. Most defamation defenses center on proving that the statement is true. For example, if a person can be proved to be an embezzler, there is no defamation.
A statement of opinion, even if it's harmful, is usually not considered defamation. An example would be a statement in an editorial or comment section of a newspaper.
Consent by the plaintiff (the person harmed) is another defense. Giving an interview is not considered consent.
Absolute privilege applies specifically to members of lawmaking bodies for statements made "on the floor" of their legislative bodies. Other examples of absolute privilege are political speech and ads and communication between spouses.
Don't confuse qualified privilege with absolute privilege, which protects the person from lawsuit no matter how wrong the action might be and even if the action is committed with malice or an improper motive.
Qualified Privilege and Employers
An example of qualified privilege is the immunity from defamation for statements made in the course of an employer's duties. The most common example of the type of qualified privilege is an employer's communications with others as a character reference for a current or former employee.
In a 2012 case, the 4th Circuit Court of Appeals ruled against a plaintiff who said that qualified privilege didn't apply, in part, because of the alleged malice of the employer.
Tips for giving a reference for a former employee and avoiding a defamation lawsuit:
- Tell the truth. Use your records on the employee to back up any statements you make, to be sure you have proof.
- No personal comments. Answer the question asked but don't volunteer additional comments or information. "Just the facts" here.
- Best tip: Get consent from the employee or former employee. Get a consent form from every employee, to establish your right to give information and to help you if you're called into court.
Disclaimer: The information in this article is intended to be general in nature and is not intended to be legal advice. Qualified privilege in employment situations is handled differently in each state. Employers should check with legal counsel before giving references or information about current or former employees.