I have tried two defamation cases to a jury verdict, although I have handled many defamation cases (and have a worthwhile defamation case I am currently handling). Almost all of the defamation cases I handle arise out of the workplace, whether a current employment situation or a former employment relationship. In my first jury trial of a defamation case, a pharmaceutical technician was accused by the pharmacist at her location of stealing Adderall, an addictive stimulant. As it turned out, Adderall had come up missing at the previous location the pharmacist had worked. After the pharmacy tech was fired under the accusation of theft, Adderall went missing again.
The truth was pretty obvious: The pharmacist was stealing the drug (which explained his hyper personality and karate kicks). The national chain pharmacy knew enough facts to figure it out but hunkered down since my client was more dispensable than the pharmacist. So, it had buried its head and denied the obvious resulting in my client living under the cloud of suspicion and accusations. We filed a slander lawsuit, litigated for about 18 months before the jury took two hours to find for my client and compensate her for the damage to her name.
One of the issues in this case was something the law refers to as a “qualified privilege.” The law recognizes that an employer has a need for its management to be able to share information with each other (and other people who work for it). Sometimes, managers make an honest mistakes about whether an employee is guilty of some offense, and our courts do not want to punish an honest mistake when conversations are necessary to pursue a matter of mutual interest. It can be a bit light walking a legal tight rope.
So, for example, if an a manager honestly believes that an employee is stealing, it must be able to share this belief with human resources or loss prevention personnel even if it is not 100% sure (or even if it is only 60% certain). The qualified privilege says that if an employer (or employee/manager on behalf of the employer) makes a defamatory statement (“she is stealing”) but (1) only tells those who need to know and (2) honestly and in good faith believes the statement to be true, then even if the statement turns out to be false, the employer cannot be held liable.
Yet, the protection of a qualified privilege may be lost by “the manner of its exercise.” As the South Carolina Supreme Court has said:
The publisher must not wander beyond the scope of the occasion. The privilege does not protect any unnecessary defamation. In order for a communication to be privileged, the person making it must be careful to go no further than his interests or his duties require. Where the speaker exceeds his privilege and the communication complained of goes beyond what the occasion demands that he should publish, and is unnecessarily defamatory of the plaintiff, he will not be protected.
Defamation in the workplace is serious business: Ruining someone’s reputation can prevent him/her from earning a living and supporting his/her family. However, it is critical than organizations be able to speak freely on important matters. So, the law must balance various interests, and so whether an employee has a defamation case can be a bit tricky.