Lots of people say lots of things in the workplace. Employers say insulting words to or about employees, while employees respond back in defense or in kind. While offending words can sting, are they actionable under NJ law? Let’s discuss this topic.
A
For a claim of defamation to be actionable, there must be:
- A false and defamatory statement concerning a person;
- A non-privileged publication (i.e., communication) by another to a third person who actually hears and understands that the communication is about him or her;
- Some elements of fault amounting to intent or possible negligence on the part of the publisher;
- In the case of verbal slander (a form of defamation) other than slander per se (to be discussed), proof of special harm caused by the publication, i.e., material or pecuniary loss, such as the loss of business, employment, or compensation.
The accused may avoid liability by proving that the defamatory statement was true, or that it was protected by an absolute or qualified privilege. For example, statements made during the course of judicial or quasi-judicial proceedings are absolutely privileged, regardless of the defendant’s motives or recklessness in publishing the statement.
An employer and its authorized agents have a legitimate interest or duty in (a) responding to requests for information made by governmental agencies concerning the reasons for an employee’s termination; (b) taking steps to detect the theft of its property by employees and notifying and assisting the police with respect to an investigation; (c) notifying its employees, supervisors, and union representatives of the discharge of a worker and the essential reasons for that disciplinary action; and (d) responding to requests from prospective employers for information about current or former employees.
Protection of the employer and its representatives who hold a qualified privilege will be lost if it is abused. A qualified privilege is abused when:
- The employer knew the defamatory statement made about the employee was false or acted in reckless disregard of whether it was true.
- The defendant knowingly published the defamatory statement to a person he had no reason to believe had a legitimate interest in the matter.
- The publication contained defamatory matter that was not reasonably necessary to the purpose for which the communication was otherwise qualifiedly privileged.
Abuse of privilege must be established by clear and convincing evidence by the person who claims the defamation.
Defamatory Meaning
The threshold question in any defamation case is whether the statement is reasonably susceptible of a defamatory meaning. It is a question of law for the court, which may view the statement in context and consider the publication as a whole. Words which are defamatory in one context may not always be so if their intended meaning is different or they are communicated in jest. In determining whether words are defamatory, the court must accord them the fair and natural meaning that would be given them by reasonable persons of ordinary intelligence. Only when the words in dispute are capable of both defamatory and non-defamatory meanings is the question of whether they are defamatory left to the jury.
If a published statement is susceptible to one meaning only, and that meaning is defamatory, the statement is libelous as a matter of law. Conversely, if the statement is susceptible to only a non-defamatory meaning, it cannot be considered libelous, justifying dismissal of the lawsuit. However, in cases where the statement is capable of being assigned more than one meaning, one of which is defamatory and another not, the question of whether its content is defamatory is one that must be resolved by a jury.
A statement is defamatory if it is false and either (1) injures the reputation of another; (2) exposes him to hatred, contempt, or ridicule; (3) causes him to be shunned or avoided; or (4) subjects him to loss of the goodwill, esteem, and respect previously shown toward him by others.
What is the Difference Between Libel and Slander in a Defamation Case?
Libel is any printed or written (not verbal) defamation of a person, published maliciously and without justification. Unlike slander (except slander per se), libel does not require proof of specific damages.
A letter charging that an employee took money belonging to his or her employer charges the commission of larceny and thus is libelous on its face. A notice advising co-workers that an employee was discharged for failure to follow company instructions may also be libelous.
Slander is any verbal defamation of a person or business entity. The major categories of false oral statements are generally considered slanderous per se, meaning they are actionable without proof of special damages. They include words which: (1) charge commission of a crime; (2) affect a person in his or her business, trade, employment, or office; (3) impute a hideous illness or disease; and (4) in some cases, charge serious sexual misconduct.
Accusations of Criminal Conduct
The traditional rule is that publication of a false statement constituting a criminal offense is slander per se. The offense charged is generally an indictable offense. The modern view is that accusations should be actionable per se only if they involve a major social disgrace or moral turpitude. An accusation of theft or larceny is slander per se regardless of whether the offense is indictable. Where the unavoidable implication of the language used is that a crime has been committed, the statement is slanderous per se. The fact that criminal charges are never filed is not dispositive because the sting of an accusation may be more pervasive when made by insinuation.
Business Employment
Words concerning a plaintiff in his or her business, trade, profession, employment, or office that impute a lack of integrity, honesty, or creditworthiness, without justification, are slanderous per se when they relate to a matter of significance concerning the manner in which the person carries on his or her occupation.
An Opinion is Not Defamatory
With respect to matters of public interest, the Supreme Court has held that only statements of fact can be defamatory. Mere expressions of opinion, which cannot be proven true or false, are generally not actionable.
A recent Appellate Division decision stated:
Only a statement of fact can be defamatory; mere expressions of opinion, which by their nature cannot be proved true or false, are not actionable unless they imply the existence of undisclosed defamatory facts.
Where evaluation of a professional’s competency is of public importance, the opinion privilege generally applies.
Pure opinions that disclose the factual basis of the speaker’s opinion are protected. Mixed opinions that imply undisclosed defamatory facts generally are not protected.
Publication to Someone Other Than the Victim is Essential
Because the law of defamation seeks to protect reputation, the defendant must have communicated the defamatory statement to someone other than the person allegedly defamed, and that third person must actually have heard and understood the communication to refer to the plaintiff. This is referred to as publication.
Publication can be made to any third person, including a corporate employer’s own employees or agents. However, a statement made only to an agent of the accuser, such as an investigator hired by the employer, generally is not publication to a third party. Statements to parents regarding accusations against a teacher may constitute publication.
Privileged Communications Are Not Actionable
In certain situations, public policy requires that individuals be permitted to speak or write freely without fear of a defamation lawsuit.
An absolute privilege provides complete protection, while a qualified privilege provides protection only so long as the privilege is not abused.
Absolute Immunity
Defamatory statements made by public officers or public bodies acting officially, but outside judicial or quasi-judicial proceedings, are generally entitled only to a qualified privilege.
A party to private litigation is absolutely privileged to publish false and defamatory statements during the course of a judicial proceeding if the statements bear some relevance to the proceeding.
Communications to which the privilege does not extend must be so blatant and unreasonable that no reasonable person could consider them anything but irrelevant and improper. Whether the communication has a relation to the lawsuit is a question of law to be decided by the court, and the presumption is that the communication is relevant to the case.
Recklessness in communicating statements of obviously doubtful veracity must approach the level of publishing a knowing, calculated falsehood. Whether the defendant acted recklessly is a substantially subjective determination.
The existence of spite, ill will, indignation, resentment, or vindictiveness does not destroy the qualified privilege where the defendant acted for a proper purpose. The privilege is lost by excessive publication, meaning the defendant knowingly published the defamatory statement to a person not reasonably believed to be necessary to accomplish the protected purpose.
Economic Money Damages
In cases of slander other than slander per se, special damages must be proved. Emotional distress resulting from defamation does not constitute special damages, even if it causes serious physical illness. Likewise, expenses incurred in refuting the defamatory communication are not special damages. Special damages are limited to those reasonably foreseeable or normally resulting from the defamation.
Once special damages are established (or where they are not required), a plaintiff may recover general damages, including damages to reputation, mental suffering, physical sickness, wounded feelings, and humiliation.
Under New Jersey law, a defamation plaintiff may recover punitive damages if nominal damages are established, meaning some injury, loss, or detriment has occurred.
Think you have a case of defamation in the workplace or elsewhere? Are you being accused of defamation as an employer or as an agent of your employer? Please contact Fredrick P. Niemann, Esq. at (732) 863-9900 or email him at fniemann@hnlawfirm.com.
Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.
Fredrick P. Niemann Esq.
Employment Law Attorney Serving These New Jersey Counties:
Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, Warren County