Defamation and Negative Performance Reviews

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.)