Defamation Risks in the Workplace: References, Complaints, Investigations, and California’s New Protection

I'm Jen Shaw. We spend our days helping employers sort through messy workplace situations, often in real time and often with a lot on the line. On this podcast we'll walk through those issues. What's coming up? What actually matters? Where employers get into trouble and what to do next. No theory, just practical guidance you can use. We're going to talk about defamation today. This comes up all the time you guys when people are involved in workplace complaints and they say to me, "Hey, can I sue the complainant for retaliation or discrimination or defamation?" Because I didn't do anything wrong and they defamed me by making this complaint. They made me look really really bad and I'm not really really bad. I always say to them, "Of course, I cannot give you legal advice. I'm a neutral investigator. Sorry, I can't be more helpful." But here's the truth. Defamation is a hard thing to prove. We're going to talk about it here today because the truth is defamation can arise from everyday workplace communications. We need to make sure as employers that we are not stepping on rakes when we don't need to. So here's the thing. You have to figure out what areas might create risk for you in the workplace when it comes to defamation. However, I don't want you to be so afraid of defamation that you stop communicating, right? The goal is careful factual need to know communication. Now, in case you are about to get bored, we're going to talk about the Blake Lively case against Justin Baldoni. Okay, it's from that movie, The End of Us. Is that what it's called? The End of Us? It's The End of Us? I think that's what it's called. Anyway, I've had a long day and we're at the end of June and I need to figure out what I'm going to do for the Fourth of July because I want to celebrate the 250th anniversary of this country and I'm not quite sure how to do it. So I've been spending a lot of time today trying to figure that out. Anyway, in the meantime, I've also been thinking about workplace communications and let's talk first about the basic defamation concept because this is where Blake Lively is going right now. As you probably read, she settled most of her claims with Justin Baldoni, but now she's pursuing something called the 471 claim under the California Civil Code. Talk about that in a minute. So what is defamation? Defamation generally involves a false statement of fact about someone that is communicated to another person and causes the first person harm. Okay? So when you hear the word slander, that is spoken defamation. When you hear the word libel, that is written defamation. So defamation is sort of the umbrella and slander and libel are under that umbrella. Opinions actually usually do not constitute defamation because remember we said it has to be a false statement of fact. So if I say Jen is a convicted felon and that is not true, that could be defamation would certainly cause harm to my reputation. But if we say I think Jen is the worst lawyer we've ever worked with, well that's a matter of opinion. You may hurt my feelings and I may really be sad about that, but you're not making a statement of fact, right? You're saying I think it's my opinion. So opinions are usually protected. Now one of the things that you've probably heard about defamation is that truth is an absolute defense. Okay? Meaning if I say President Trump was convicted in the New York court of criminal offenses, that is actually true. That is not an opinion, right? That's not defamation, but you have to be very careful because truth can be hard to prove. Okay? So at least it can be expensive to prove. Let me put it that way. So what are some common defamation scenarios that can come up in the workplace? Things like we fired him because he stole from us. She falsified records. He harassed several employees. They are unstable. They committed fraud. She abandoned her job. He is dangerous. She made false complaints. He was terminated for misconduct. Okay, now you can see that some of these statements are opinion, right? He is dangerous. That's not necessarily a factual statement unless he's standing there with a weapon and he's aiming it at you, right? Then we might be able to make that statement. But many of these statements can be considered that you're making a statement. If that's like when we say he harassed several employees, well, harassment is a legal term. So if you write that in an investigation report, that's a legal conclusion. You don't want to write he harassed several employees. You might say his conduct toward several employees violated the employer's equal employment opportunity policy. Now you've got something factual, right? But if you say it constituted harassment or discrimination or retaliation, well, then you're basically making a legal determination. That's going to be a potential problem. Okay, the other things that come up are references. This is actually something Joe and I have talked a lot about. Should employers give references? Okay, and we actually did a little debate about this and employers lawyer a couple of months ago. You know, I've talked about employers lawyer on this podcast. You guys know, that is a what Joe and I did is we started a new non-traditional law firm for employers that don't have access or don't want to retain lawyers, right? For a flat couple hundred bucks a month, you get to come to office hours at twice a week and you get forms and models and templates and training programs and you get one-on-ones with Joe and me. That's what it is. So when I talk about what Joe and I are doing or employer's lawyer, that's what it is. We did it to give back to the HR community because we feel like a lot of HR folks do not have access to services and this is one way we could do it. And it's been good, right? You know, it's been fun. It's helpful. It's useful. So that's what I'm talking about if you're new to the podcast. So Joe and I were talking in one of our office hours sessions about whether employers should give references. And I guess the most conservative of course advices, no, don't give references. Just say you have a policy, you don't give references. And then that way you can never be sued for defamation. But of course the other way you can never be sued for defamation is to tell the truth, right? So when somebody asks you, would you rehire the person? You can say, no, I would not. And we have the California civil code that says you are privileged. You can not be sued for making a statement like that. If you decide you would not rehire someone, you can say I wouldn't rehire them. And that's okay. I think and Joe and I both came down to the same place in the end. You should give references. Your good employees deserve references. And the employer community deserves to know if you had a bad egg. All right? But what you have to do of course is be very short and very succinct and very factual. You don't want to say anything that is inflammatory or that you know for sure that you don't know for sure is true. All right? So it's really important that you have a consistent reference protocol that you have a practice. This is how we check references. This is what we do. This is how we talk to people, how we document what other people have told us. It's very important to have a protocol. You also have to remember that not only is it dangerous to say too much, it can be dangerous to say too little if somebody has engaged in some kind of workplace misconduct. And you don't tell a future employer about it. And then they hire the person. And then the person does the same thing with that person. And then you have a problem. All right? So if you're going to create a reference protocol, how do I want you to do that? First of all, you should have centralized references. Don't let managers and supervisors provide what we call, you know, personal references. That doesn't really exist. Okay? It doesn't work that way. Any reference you provide for someone with whom you have worked is a work reference at that point. You want to definitely confirm the dates of employment and the positions. You want to avoid speculation or labels or unnecessary detail. You want to just give the facts when somebody asks you for a reference. You're going to always want to create documentation about who you provided the reference to and what you said and who you spoke to in the date and all of that. You want to be especially careful if you're talking about anything like employment, conduct or a claim of harassment or theft or violence or something about dishonesty. You really need to be very, very careful about what you're saying. You know, if you did an investigation and you documented that, yes, we believe it's more likely that that the person stole, then that's what you say in the reference. You don't say they violated the penal code, which is what one of my clients did recently. Okay, that's what's respect to references. What about investigations? All right, listen, investigations require a lot of communication, but you all know that not everyone needs every detail, right? So with this, this should receive enough information to answer your questions, but they don't get a full narrative. Accused employees should receive enough information to respond meaningfully, but you don't give a copy of the complaint. Investigations reports should stick to factual findings and don't be in flammatory, right? Don't use words like "very" clearly, absolutely, definitively. That's not factual. Don't broadcast what the allegations were before you make any findings and make sure you give confidentiality and no retaliation warnings, right? And you make sure people know, listen, we cannot guarantee you confidentiality. We ask that you maintain discretion and that you don't talk about this with anyone else because we're trying to preserve the integrity of the investigation and you're protected against retaliation for participating in this process. And if you feel that anyone has violated our no-retellation policy, you should reach out to me right away, right? That kind of thing. So there's a lot that can happen with defamation that comes out of investigations. Now let's talk about Blake Lively and Justin Baldoni, all right? In the case, you know, Blake Lively filed a complaint with the California Civil Rights Department against Justin Baldoni and some other folks related to him. I'm not going to go into a ton of detail. She says that he harassed her and retaliated against her. He then filed a complaint, all right, for defamation, right? Saying, hey, you defamed me when you made those allegations. Well, there's a section under California Civil Code, section 47.1 that says, look, you are privileged. You have a privilege when you talk about things like sexual harassment or retaliation or sexual assault. And if you complain about that conduct without malice and you have a reasonable basis for doing so, you can't be sued for defamation, all right? And in the same area of the code, they say that you are privileged. You can't be sued for answering the question, would you rehire this person again, right? So if a defamation suit is brought because somebody made a protected complaint like Blake Lively did about Justin Baldoni, he sues her for defamation. She wins, okay? In this case, she settled. So that's going to be an interesting issue. Does she get to sue for attorneys, fees and costs and trouble damages, which is three times the amount that she's actually owed, peed under damages, etc. This statute is very important, 47.1. And it's a little bit confusing. I hope I've described it right today. I think I have. But it gives people the protection like Blake Lively to say, listen, I made a good faith complaint. You can't come after me just because I didn't go to court and get a jury verdict, right? That's not okay. So however, even section 47.1 doesn't allow you to say anything to anyone in any manner about anything, right? You still have to be acting in good faith and it has to be made in good faith and you want to be talking about facts, all right? So how can you avoid liability for discrimination? What can you do? Well first of all, don't overstate things, right? Forget about the hyperbole. We don't need it. So if somebody doesn't need to know, don't tell them. If you don't know what happened, for sure, don't say you do. Like that's important. You have to as an employer be able to distinguish among allegations and findings and opinions. Okay, those are three very different things. The safest communications, of course, are those that are factual, that are limited in scope, that are consistent with your policy and your practice and that are always tied to a legitimate business need. Not your desire to get back at someone. Okay, that is not ever going to be a legitimate business need. So phrases I'd like to hear more than the ones I mentioned at the beginning of this podcast. We received a concern and we reviewed the matter. The company addressed the issue consistent with our policies. We are not able to discuss personnel matters. The employee is no longer working with the organization. The company made a decision based on the information available at the time. Please direct your request for a reference to our HR department. Here is their phone number. All right, so everything we talk about on this podcast, you guys, is meant to be practical and helpful and keep you out of trouble. All right? If you ever have ideas or suggestions about things I should talk about or things you'd like to be to cover, if you'd ever like to be a guest on the podcast, reach out to me. You can email me at J. Shaw at Shawloggroup.com. I would love to hear from you. Make sure that you send a link to this podcast to anybody who you think would enjoy it. We love having new people and we just really appreciate the opportunity that you give us to spend your precious 15 or 20 minutes with us once a week. So thanks so much everybody. It really is truly an honor and a privilege. Keep doing your best work. I'll see you next time. Shawloggroup, we solve workplace problems. Real-world guidance for real workplace decisions. The workplace wake-up podcast is produced for general educational and informational purposes only. The views expressed are those of the speakers and do not constitute legal advice or create an attorney-client relationship. The law is complex and constantly changing. Therefore you should contact an employment lawyer in your jurisdiction for advice regarding your specific situation.