# The Claim.
To establish a claim for defamation, a former employee must
demonstrate that the former employer published a defamatory
statement about the employee. In other words, an employer
may be liable for defamation if the employer communicated a
statement about the employee to a third person that could be
harmful to the employee's reputation. If the employer cannot
demonstrate the truth of the statement, the employer may be
liable for defamation. Defamation can be oral (slander) or
1. Defamatory Statement.
To be a defamatory statement, a communication must be
capable of defamatory meaning. The communication need not
cause actual harm -- it merely must be capable of impugning
the employee's good name or reputation. Courts will examine
the statement, the context in which it was made, the
audience, and the surrounding circumstances.
An employer may be liable for "defamation by conduct"
if a defamatory statement can be inferred by the employer's
conduct. For example, in one case an employer was found
liable for defamation by conduct when it forced an innocent
employee to resign amidst an investigation for theft, along
with the actual thieves. The employer's actions inferred
that the employee was a thief when, in fact, he was not.
Thus, mere conduct can support a claim for defamation if the
surrounding circumstances permit.
To be liable for defamation, an employer must publish the
defamatory statement. "Publication" does not require a large
audience; a statement made to one person other than the
employee-plaintiff is publication. Thus, announcing over the
loudspeaker that an employee was fired for stealing is a
publication, but so is responding to a request for a reference.
The new theory of "compelled self-publication" holds that an
employer may be found liable for defamation of a terminated
employee without saying a word. If the employee was
terminated based upon evidence that was defamatory, and if
the employee is required to disclose the reason for the
termination to a prospective employer, the former employer
caused compelled self-publication. Liability attaches if it
would be foreseeable to the employer that the employee would
be compelled to provide the information.
# Special Defamation Claims.
1. Defamation by Neglect.
In addition to the above, an employer may be held
liable for defamatory statements made by others if it adopts
them either intentionally or by implication. In most
instances, this occurs where some writing containing a
defamatory statement appears on the employer's property and
the employer does little or nothing to see that it is removed.
Posts on this thread, including this one