What To Do If Your Employer or Former Employer is Saying Something False About You
by: Donna M. Ballman
Donna M. Ballman, P.A.
5001 S. University Drive, Suite G
Ft. Lauderdale, FL 33328
Your employer has accused you of stealing. You can prove you didn’t do it. Not only did they fire you, but you can’t get another job because everyone knows about it. What should you do?
Answer: You may be able to sue your former employer for defamation of character. Defamation is where someone makes knowingly false statements, or makes false statements with reckless disregard as to their truth. The statements must be factual statements as opposed to opinion.
Under Florida law, a statement is libelous per se when it accuses another of a criminal offense amounting to a felony, or conduct, characteristics, or conditions incompatible with the proper exercise of one’s lawful business, trade, profession, or office. This means you will not have to show that the statements were made with malice.
Statements made only to you, in court, or to unemployment are never defamation. Statements to people have a direct or legitimate interest in the matter (such as to the human resources investigator or named witnesses during a disciplinary investigation) are usually privileged, which means you can’t sue based on them. If the statements are made with reckless disregard as to their truth, are made outside the circle of those who have a legitimate interest (in other words, are known throughout the workplace or outside the workplace), or are knowingly false, the privilege may be waived and you may be able to sue. An example would be where a co-worker accuses you of assault, all the witnesses and the videotape confirm that it didn’t happen, but you are fired for assault anyhow.
True statements are never defamatory. While truth is a defense that the person making the statements will have to prove, it is a good idea to have some proof that the statements are untrue before you file suit. Witnesses, videotapes, invoices, telephone messages, and other documents should be gathered as soon as possible.
Some people think they can repeat false information as long as they say it is a rumor or they can’t swear it’s true. That doesn’t protect them from a defamation suit. For instance, where a corporate chairman notified the board of rumors circulating about the corporate president, to the effect that he was rumored to have engaged in an insurance kickback scheme, and the rumors eventually left the workplace and were heard at a credit union convention, the corporation was held to be liable for defamation. Where a competitor spread rumors about a businessman that he suspected the businessman was bankrupt, he was liable for defamation.
Even the implication that a person left under a cloud can be defamatory. In one case, where a lawyer was described as having "suddenly resigned", the terminology implied that he had left under a cloud of suspicion or scandal which harmed his professional reputation, and was determined to be defamatory.
If a corporation knows its employees are spreading false information and takes no action to stop them, it may be liable. If corporate officers are the ones making defamatory statements, the corporation will almost certainly be liable.
If you’re not sure what the employer is saying about you, hire a professional reference checking company, preferably one that uses court reporters since it’s illegal to tape conversations without permission in Florida. Once you find out what they are saying, you can decide what to do.
If you think your employer is defaming you, contact an employment attorney to discuss what you can do to protect yourself.