Tuesday, October 18, 2016

Defamation in the Workplace

Here's a common question: Can I take legal action against my employer for defamation in the workplace? The answer is: maybe.

Under New York law, the elements of a defamation claim are: 
(i) a false statement; (ii) published to a third party without privilege or authorization; (iii) with fault amounting to at least negligence; (iv) that caused special harm or defamation per se.
In order to have a claim for defamation, the employee must be able to prove all four of these elements.  In the employment context, the most difficult element is the second element:  whether or not a special privilege applies to the communication.

New York Courts have long recognized a "common interest" privilege for otherwise defamatory statements within the employment context.  (Lieberman v. Gelstein, 80 NY2d 429 (1992)).  So, for example, a committee determining whether or not a college professor is going to receive tenure or the managers of a business making personnel decisions have some leeway in what they can say about the person, even if it is false.  The rationale for this privilege is that "so long as the privilege is not abused, the flow of information between persons sharing a common interest should not be impeded."  Constantine v. Teachers College, 116528/08 (2010).

But this leeway has limits.  When the offending statements are made "with malice," which means "with spite or ill will," the privilege is waived and you may have a claim for defamation.  Similarly, the privilege is waived if the statements are "made with a high degree of awareness of their probable falsity" (Liberman) and as with "malice," there will be no privilege protection and you may have a claim for defamation.

If you have a possible claim for defamation in the workplace, call Charny & Associates (845-876-7500) and let us give you a free consultation -- we'll listen to the facts and let you know what we think.

Nathaniel K. Charny

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