defamtion question

[mrgoosell]

I live in Arizona and have a question about defamation. I'll make it as brief as possible. PLEASE READ

I started work for a local company in September of 2013. I was told when I was hired that after three months I would be off training and would receive a raise. After the three months no ease came and I was still on training. Finally in April 2014 I was taken off training and given more job responsibilities. So of course I ask where's my raise. After talking to the manager for about a month I was finally called into the owners office where he told me I wasn't going to receiving a raise and that when I was first hired they misspoke about the raise. I was passed but really didn't say much and later that day the owner fired me because he claimed I was spreading rumors about the company and creating a hostile work environment (none of which are true)

So I've since moved on and applied for different jobs and also for an paid internship which is a big deal. In the last week I got the internship and a job offer both of which have to do a background on me. I really want the internship as it is a once in a lifetime opportunity. And I just got word today that the other job the background guy went and talked to my previous employer. The previous employer said the same thing as I said above. That I was a horrible employee and I spreads rumors and created a hostile work environment. I know the same thing is going to be said for the internship. So my question is I don't want something like this stupid local company messing up my once in a life time internship so what can I do about them spreading defamation about me? Thanks for the help

Ps this is the only job that I've had in this country.

 

[quincy]

I live in Arizona and have a question about defamation. I'll make it as brief as possible. PLEASE READ

I started work for a local company in September of 2013. I was told when I was hired that after three months I would be off training and would receive a raise. After the three months no ease came and I was still on training. Finally in April 2014 I was taken off training and given more job responsibilities. So of course I ask where's my raise. After talking to the manager for about a month I was finally called into the owners office where he told me I wasn't going to receiving a raise and that when I was first hired they misspoke about the raise. I was passed but really didn't say much and later that day the owner fired me because he claimed I was spreading rumors about the company and creating a hostile work environment (none of which are true)

So I've since moved on and applied for different jobs and also for an paid internship which is a big deal. In the last week I got the internship and a job offer both of which have to do a background on me. I really want the internship as it is a once in a lifetime opportunity. And I just got word today that the other job the background guy went and talked to my previous employer. The previous employer said the same thing as I said above. That I was a horrible employee and I spreads rumors and created a hostile work environment. I know the same thing is going to be said for the internship. So my question is I don't want something like this stupid local company messing up my once in a life time internship so what can I do about them spreading defamation about me? Thanks for the help

Ps this is the only job that I've had in this country.

You can have an attorney in your area draft a letter to your former employer, notifying him that if he relates any false and defamatory statements about you to prospective employers, legal action will be considered. That might resolve the problem.

 

[Proserpina]

You can have an attorney in your area draft a letter to your former employer, notifying him that if he relates any false and defamatory statements about you to prospective employers, legal action will be considered. That might resolve the problem.

You're completely correct (doh! )

But in this example, it might make things worse.

As things stand, we have a snotty ex-employer who is apparently saying bad things. If that snotty ex-employer receives a letter warning about possible legal repercussions, they might just go the whole way in the future and say "She was fired under suspicion of theft".

It's impossible to prove either way; the employer can legally fire her because they suspect she stole something, and they aren't required to back up their suspicions. On the other side of the coin, the OP can't prove a negative (that she didn't steal anything).

It's rotten, but it's unfortunately not uncommon. Sleeping tigers, and all that.

(Please excuse the gender roles here if I'm wrong)

 

[mrgoosell]

So what should I do?

 

[quincy]

You're completely correct (doh! )

But in this example, it might make things worse.

As things stand, we have a snotty ex-employer who is apparently saying bad things. If that snotty ex-employer receives a letter warning about possible legal repercussions, they might just go the whole way in the future and say "She was fired under suspicion of theft".

It's impossible to prove either way; the employer can legally fire her because they suspect she stole something, and they aren't required to back up their suspicions. On the other side of the coin, the OP can't prove a negative (that she didn't steal anything).

It's rotten, but it's unfortunately not uncommon. Sleeping tigers, and all that.

(Please excuse the gender roles here if I'm wrong)

No one here can tell you what you should do, mrgoosell. The decision is ultimately yours to make.

However, I will address what Proserpina has said (and what is quoted above) and you can weigh this with whatever else is offered you in this thread by others:

If the former employer had not already related false information about mrgoosell to a prospective employer, I might agree that it could be best to do nothing. But mrgoosell has an internship on the line and what the former employer says could make a difference in whether he gets this internship or not.

These are false statements that, if indeed false, cannot be proved true by the former employer. There is a prospective employer who can support that what was said by the former employer was actually said and, IF the prospective employer passed mrgoosell over for employment based on the false statements, there is economic harm that can be demonstrated.

An attorney letter can be used as a warning and, if the former employer is smart, he will heed that warning. Otherwise a defamation suit could be supportable and winnable (although there is never a guarantee of that - and all facts would need to be reviewed to determine this better).

I think when someone's employment has been terminated, however, and a potential job has been lost and another opportunity could be lost as a result of a former employer's false statements, it is worth, at the very least, an attorney's review. The sending of a letter is a relatively easy and inexpensive first step to take in resolving the issue before more harm is done. A defamation suit would need to be considered more carefully.

 

[Nellibelle]

You can have an attorney in your area draft a letter to your former employer, notifying him that if he relates any false and defamatory statements about you to prospective employers, legal action will be considered. That might resolve the problem.

The OP already mentioned that one of his prospective employers did a background and was told by the former employer that the OP was a "horrible employee, spread rumors and created a hostile work environment."

If the OP doesn't secure his job concerning the 'internship' and is denied employment with the prospective employer that was defamed by his previous employer, he absolutely should consult with an attorney regarding such defamation, since he would have grounds for legal action.

 

[quincy]

The OP already mentioned that one of his prospective employers did a background and was told by the former employer that the OP was a "horrible employee, spread rumors and created a hostile work environment."

If the OP doesn't secure his job concerning the 'internship' and is denied employment with the prospective employer that was defamed by his previous employer, he absolutely should consult with an attorney regarding such defamation, since he would have grounds for legal action.

If mrgoodsell decides to consult with an attorney, he will probably want to do it prior to any communication between the former employer and the company offering the paid internship (if this is still possible). He stands to be best off if the attorney letter can be sent to the former employer in time to prevent harm, which would include the loss of the internship opportunity.

That said, and if you read mrgoosell's post, he stated that the former employer already communicated the falsehoods to one prospective employer but he did not say how the prospective employer reacted to the information. If mrgoosell was offered the position despite the former employer's comments, there is (probably) no reason to take any legal action. There is (probably) no reason to take any legal action if the former employer's comments were not the deciding factor in a denied offer of employment, either.

In a defamation suit, the court will determine if what was communicated can be considered defamatory and, in addition, if what was communicated is per se defamation or per quod defamation. While it is generally considered defamatory per se to make false statements that injure a person in his profession, trade or business, it will be up to the court to make this determination.

With per se defamation, no special damages will need to be alleged. Damages can be awarded based on the presumed reputational injury suffered. If, however, the court finds that what was communicated is defamation per quod, mrgoodsell will need to demonstrate special damages (a pecuniary loss of some sort). If he has been offered a position with the prospective employer, there will be no economic damages to support a suit. If he has been denied employment with the prospective employer for reasons other than the comments made by the former employer, there will also be no economic damages to support a suit.

Although it appears to me from what mrgoodsell has posted that the communication was defamatory, a court could look at the communication as opinion, or there could be something that the former employer has to support his comments, making what he said substantially true. The former employer could also claim his comments were communicated in good faith, and mrgoosell would then need to show they were communicated with actual malice.

In other words, all facts matter, and these facts are always best reviewed personally by an attorney in a person's own area. An attorney in Arizona will review all facts before advising mrgoodsell on whether to send a warning letter to the former employer or not. The attorney will go over the pros and cons. As Proserpina noted, these decisions are not always so clear cut.

I do not see any "absolutely shoulds" or a definite defamation suit. I see only that an attorney review followed by a letter to the former employer could potentially help to resolve the matter.



late edit to add: The statute of limitations for defamation in Arizona (the time within which a suit must be filed) is one year from the date of first publication (or, in some cases, one year from date of discovery).

 

[Shadowbunny]

Question for Quincy and the employment experts (just because I'm curious): Why wouldn't the employer saying OP is "a horrible employee and ... spreads rumors and created a hostile work environment" be considered to be simply the ex-employer's opinion, and protected from defamation action?

 

[Proserpina]

Question for Quincy and the employment experts (just because I'm curious): Why wouldn't the employer saying OP is "a horrible employee and ... spreads rumors and created a hostile work environment" be considered to be simply the ex-employer's opinion, and protected from defamation action?

Off the top of my head, "hostile work environment" has a very specific meaning and does carry with it extremely negative connotations. It's not something you want to be accused of, if you can possibly avoid it.

With that said, I'd hazard a good 99% of people who do post here about HWE don't actually understand what it is, and is not.

 

[quincy]

Question for Quincy and the employment experts (just because I'm curious): Why wouldn't the employer saying OP is "a horrible employee and ... spreads rumors and created a hostile work environment" be considered to be simply the ex-employer's opinion, and protected from defamation action?

Employers have to be careful what they say so that they do not prevent a former employee from being able to work in his chosen field. An employer should have good and supportable reasons for relating to a prospective employer any damaging information about the employee that might make a prospective employer refuse to hire him.

"Pure" opinions are statements that are neither true nor false and that do not imply anything true or false. Saying "It is my opinion" or "I think" before making a statement does not make it an opinion. "Asparagus is a stupid vegetable" is a pure opinion.

Opinions are often best stated with factual reasons supporting why the opinion is what it is, and this can be especially true when you are talking about people (or businesses). For example, if an employer simply says, "I think the employee is horrible," that statement implies that the employer knows something about the employee that others don't. "Horrible" can mean different things to different people (does he eat with his mouth open? is he a rapist?). On its own, it is possible a court could consider that statement an opinion. What will be important is how those who hear the statement react to it. It is what the "community" thinks the statement means that can determine whether it is defamatory or not.

Safer for an employer to say would be, "I think the employee is horrible because I hate tuna fish sandwiches and he eats tuna fish sandwiches" (if the employee does, in fact, eat tuna fish sandwiches). By hearing the basis for the employer's opinion, those who hear the statement have the opportunity to decide for themselves if the reason for thinking a person is horrible is a good one. They can decide for themselves if eating tuna fish sandwiches makes a person horrible.

You can replace "tuna fish sandwiches" with anything at all that is true about the employee (Ohioans/he is from Ohio, gays/he is gay, members of NRA/he is a member of the NRA), and it will still remain a safer statement to make than leaving off why the opinion is what it is.

The statement that concerns me the most is the employer saying that the employee "created a hostile work environment." Although I am sure the HR members of the forum can describe what a hostile work environment is better than I, essentially what the employer is saying is that the employee's behavior or actions severely disrupted the workplace, (generally) because he intimidated another or others, or discriminated against another or others (due to their age, religion, race, etc). Creating a hostile workplace goes way beyond saying the employee is mean or rude or doesn't get along with others.

The "spreading rumors" statement sort of falls between the "horrible employee" and "creating a hostile environment" comments. The employer would want to be able to support that the employee spread rumors (and show there was a problem because of it). "Spreading rumors" is different than someone gossiping. It indicates a possible troublemaker.

But, all statements must be taken in context and all facts must be considered before it can be said if something is defamatory or not. In Arizona, it is considered under their defamation laws defamatory per se (defamatory on its face) to harm the reputation of a person in his profession, trade or business by communicating false statements about them.

So, the bottom line is probably that it is not smart for an employer to risk injuring the reputation of a former employee seeking new employment by making any statement that is not pure opinion or that is not supportably true, and, then, only if there is a good reason for passing on negative information to prospective employers.

 

[Proserpina]

Employers have to be careful what they say so that they do not prevent a former employee from being able to work in his chosen field. An employer should have good and supportable reasons for relating to a prospective employer any damaging information about the employee that might make a prospective employer refuse to hire him.

"Pure" opinions are statements that are neither true nor false and that do not imply anything true or false. Saying "It is my opinion" or "I think" before making a statement does not make it an opinion.

Opinions are often best stated with factual reasons supporting why the opinion is what it is. For example, if an employer simply says, "I think the employee is horrible," that statement implies that the employer knows something about the employee that others don't. "Horrible" can mean different things to different people (does he eat with his mouth open? is he a rapist?). On its own, it is possible a court could consider that statement an opinion. What will be important is how those who hear the statement react to it. It is what the "community" thinks the statement means that can determine whether it is defamatory or not.

Safer for an employer to say would be, "I think the employee is horrible because I hate tuna fish sandwiches and he eats tuna fish sandwiches" (if the employee does, in fact, eat tuna fish sandwiches). By hearing the basis for the employer's opinion, those who hear the statement have the opportunity to decide for themselves if the reason for thinking a person is horrible is a good one. They can decide for themselves if eating tuna fish sandwiches makes a person horrible.

You can replace "tuna fish sandwiches" with anything at all that is true about the employee (he is from Ohio, he is gay, he is a member of NRA), and it will still remain a safer statement to make than leaving off why the opinion is what it is.

The statement that concerns me the most is the employer saying that the employee "created a hostile work environment." Although I am sure the HR members of the forum can describe what a hostile work environment is better than I, essentially what the employer is saying is that the employee's behavior or actions severely disrupted the workplace, (generally) because he intimidated another or others, or discriminated against another or others (due to their age, religion, race, etc). Creating a hostile workplace goes way beyond saying the employee is mean or rude or doesn't get along with others.

The "spreading rumors" statement sort of falls between the "horrible employee" and "creating a hostile environment" comments. The employer would want to be able to support that the employee spread rumors (and show there was a problem because of it). "Spreading rumors" is different than someone gossiping. It indicates a possible troublemaker.

But, all statements must be taken in context and all facts must be considered before it can be said if something is defamatory or not. In Arizona, it is considered under their defamation laws defamatory per se (defamatory on its face) to harm the reputation of a person in his profession, trade or business by communicating false statements about them.

So, the bottom line is probably that it is not smart for an employer to risk injuring the reputation of a former employee seeking new employment by making any statement that is not pure opinion or that is not supportably true, and, then, only if there is a good reason for passing on negative information to prospective employers.

Charlie is most displeased with this post.

 

[quincy]

Charlie is most displeased with this post.

Yes. Tunas always get a bad rap in the press. I probably should have used peanut butter and jelly.

 

[Shadowbunny]

Charlie is most displeased with this post.

The weird little glasses-wearing tuna may be displeased, but I appreciate the education!!

Thanks, Quincy and Pro for the responses.

 

[quincy]

You're welcome, Shadowbunny.