It is common for a company to fire and employee and write in the letter of termination that the subject employee was terminated for falsifying company records. Many of these accusations are not true, unfounded, not based on any real facts or exaggerated, turning a simple innocent mistake by an employee into a charge of forgery. The California law provides a powerful tool of a claim for Defamation (general term for Slander and Libel) that can be brought against employers for such false accusations and result in award of damages. Although a number of hurdles, many of which are procedural technical, exist in bringing and prosecuting a claim for defamation, this article discusses a few of the common obstacles and defenses that the employers use when sued for defamation and the truth about those arguments.
Employers often claim that the employee cannot have a defamation claim unless the publication of false information was made to a third party (someone other than the employee and the employer). However, this argument is without merit, as publication occurs when a statement is communicated to any person other than the party defamed (the employee falsely accused). Bindrim v. Mitchell (9179) 92 Cal.App.3d 61, 79. Even internal corporate statements can be considered publications within the meaning of the defamation law. Agarwal v. Johnson (1979) 25 Cal.3d 932, 944. In Agarwal, the court stated that internal company statements regarding the plaintiff's "lack of job knowledge and cooperation" were considered "published" for the purposes of alleging libel.
Employers and especially their attorneys like to argue that "falsifying" is the same as making a mistake. First, it is important ton ote that the code definition of libel has been held to include almost any language which, upon its face, has a natural tendency to injure a person's reputation, either generally, or with respect to his occupation. Schomberg v. Walker, 132 Cal. 224. At least in one case the court held that the statement that plaintiff falsified invoices were slanderous per se in that it charged plaintiff with forgery. This kind of statement clearly implies that the accused employee did so with intent do defraud. Kelly v. General Telephone Company (1982) 136 Cal.App.3d 278, 285.
The defendant empoyer cannot avoid liability by claiming that the employer gave a more innocent meaning to the term "falsify" or any other accusation damaging the employee's reputation, than the employee sees in it. However, the California Supreme Court observed that the language used is to be considered not only in terms of actual words used by also according to the sense and meaning under all the circumstnaces attending the publication which such language may fairly be presume to have conveyed to those to whom it was published. Grover v. Tribune Publishing Company, Inc. (1959) 52 Cal.2d 536, 546.
Further, the fact that an implied defamatory charage or insinuation leaves room for an innocent interpretation (such as considering falsifying to be equivalent to mistake or negligence), does not establish that the defamatory meaning does not appear from the language itself. The language used may give rise to conflicting inferences as to the meaning intended, but thwne it is addressed to the public at large, it is reasonable to assume that at least some of the readers will take it it its defamatory sense. Id. at 549.
Surprisingly, one of the common reasons that employees are terminated is violence accusations. While sometimes those accusations have grounds and are well justified, often an employee is being accused of violent behavior by his co-workers or a supervisor who tries to "frame" him and have him fired for one reason or another.
An employer has a duty to investigate thoroughly and promptly any allegations of violence and other kinds of harassment, even if the employer doesn't believe the allegations to have any merit. Therefore, the employer is likely to find itself in a conundrum: if the employer doesn't believe the alleged victim and doesn't discipline the alleged perpetrator of violence, the company risks being sued by the victim for harassment and/or failure to prevent violence. If, on the other hand, the company take victim's side and demote, transfer or terminate an employee because of violence, the employer risks being sued by the disciplined employee for defamation.
If you have been falsely accused of violence and you are in a process of undergoing investigation, it's crucial that you comply with investigation, convey your side of the story in a clear and credible way and above all - show that you are not angry at anyone - you are not angry at the accuser and you do not wish harm upon anyone. In other words, you have to communicate to the investigator and your employer that by nature you are not a violent person and you don't have temper, even when you are provoked and falsely accused of violence, harassment, and similar violations.
Having an image of a calm, rational, respectful and a non-confrontational person will help your employer justify the decision to believe you, take your side and not take any adverse employment action against you more than many other factors.
Negative job performance evaluations are usually held to be statement of opinion rather than fact, and hence not properly the subject of a defamation action, unless an employer's performance evaluation falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics of behavior. Thus, in one case the court held that no defamation action lies even when the employer's opinions about the employee's performance are objectively wrong and cannot be supported by reference to concrete, provable facts. (Jensen v. Hewlett Packard, Co.) Even calling a teacher at a particular school a "babbler" and the "worst teacher" was found to be a subjective judgment and again - not grounds for defamation. (Moyer v. Amador Valley J. Union High School Dist.)
As stated above, while a statement of opinion is not grounds for defamation, a publication of false fact may be actionable. Thus, while a statement accusing plaintiff of poor performance is clearly a statement of opinion, a statement that an employee made a $100,000 mistake in estimating a business bid is a statement of fact and therefore, if false and published to third parties, is actionable as unlawful defamation. (Gould v. Maryland Sound Industries, Inc.)