Can an employee be guilty of slander/libel?

[Member2000]

What is the name of your state (only U.S. law)? Wisconsin.

Assume an employee's direct supervisor has no decision making authority to terminate an employee, but the supervisor makes false claims (oral and/or written) regarding such employee to a higher member of management. Then, assume this higher member of management terminates the employee's employment based upon these false statements from the employee's direct supervisor.

Has the supervisor slandered the employee? If so, would the supervisor (not so deep pockets) have a personal liability to the employee?

Would the company (deep pockets) have a liability to the employee because the supervisor was acting on behalf of the company when the supervisor made false claims against such employee?

 

[quincy]

Is this a test question?

Some states recognize a conditional privilege called an "intracorporate privilege" that protects employer/employee communications from civil actions, when what is communicated is of legitimate interest and concern to those to whom it is communicated. This privilege is covered in Wisconsin's statute §895.487(2).

Because this is a conditional privilege, it can be lost if what is communicated can be shown to have been communicated with actual malice (communicated with knowledge that what was said is false, or with a reckless disregard for its truth, and with a deliberate intent to cause harm), or with express malice (ill will, spite or hatred).

The Wisconsin Supreme Court discussed this privilege in Zinda v Louisiana Pacific Corp, a 1989 invasion of privacy suit brought by an employee against his employer over information disclosed about the employee in a company's internal newsletter. The Court held that the information communicated in the newsletter was protected by privilege because the communication was between the employer and "persons having a common interest in the employee's conduct." Intracorporate privilege was again discussed in Gibson v Overnite Transportation Co, a defamation action brought over false statements made by a former employer in an employee reference. In this action, the privilege did not apply and the employee won his suit.

So, to answer your questions in the order you asked them: Possibly, possibly and possibly. It depends on all of the facts.

 

[Member2000]

Is this a test question?

Some states recognize a conditional privilege called an "intracorporate privilege" that protects employer/employee communications from civil actions, when what is communicated is of legitimate interest and concern to those to whom it is communicated. This privilege is covered in Wisconsin's statute §895.487(2).

Because this is a conditional privilege, it can be lost if what is communicated can be shown to have been communicated with actual malice (communicated with knowledge that what was said is false, or with a reckless disregard for its truth, and with a deliberate intent to cause harm), or with ill will, spite or hatred.

The Wisconsin Supreme Court discussed this privilege in Zinda v Louisiana Pacific Corp, a 1989 invasion of privacy suit brought by an employee against his employer over information disclosed about the employee in a company's internal newsletter. The Court held that the information communicated in the newsletter was protected by privilege because the communication was between the employer and "persons having a common interest in the employee's conduct." Intracorporate privilege was again discussed in Gibson v Overnite Transportation Co, a defamation action brought over false statements made by a former employer in an employee reference. In this action, the privilege did not apply and the employee won his suit.

So, to answer your questions in the order you asked them: Possibly, possibly and possibly. It depends on all of the facts.

Assume the direct supervisor has a personal dislike for the employee and intentionally tries to get the direct report fired by providing false information to senior management. Specifically...

A. Supervisor makes an ambigous (or open ended) request of the employee.

B. Employee completes the task using existing training/knowledge in compliance with how the task has been done historically by himself and other employees.

C. Supervisor approves the work of the employee so that it may be distributed to other employees.

D. Supervisor later claims to be unsatisfied (after approving the work).

E. Employee makes required adjustments until supervisor satisfaction is obtained.

F. Supervisor reports to senior management that the employee was insubordinate and disregarded the assigned work - presumably to have employee removed from the position due to a personal dislike for the employee.

G. A pattern of the above (A-E) is developed.

Would this be enough to show malice on the part of the supervisor and therefore not be subject to intracorporate privilege?

 

[quincy]

I don't know. Possibly. Possibly not.

 

[TigerD]

Then assume that more information will be dribbled out in the next posting.

Then assume that the teacher has a question about the OP's homework and he has to come back and start the process again.

ASSUME
ASS=U=ME

DC

 

[quincy]

Should I just give Member2000 the next "possibly" answer now, then, to save us both some time?

 

[Member2000]

Then assume that more information will be dribbled out in the next posting.

Then assume that the teacher has a question about the OP's homework and he has to come back and start the process again.

ASSUME
ASS=U=ME

DC

Not homework - real situation.

 

[cbg]

Real answer = Possibly, possibly not.

 

[quincy]

Member2000, to expand on the "possible" answer a bit (or actually a lot), seeing as how this is not a test answer I am providing:

Whether there is evidence enough for a finding of malice would be up for a jury to decide, and it is impossible for me to tell you how a jury would weigh the evidence. But, because malice goes to the state of mind of the speaker at the time the statements were made, I can tell you that proving actual malice is extremely difficult for any plaintiff to make. In fact, there are very few cases where actual malice has actually been proved.

You have several areas in your described situation that would require careful review by an attorney in your area. One area to review is whether the statement communicated was, in fact, defamatory and, if defamatory, could the statement be seen as "per se" defamation ("insubordination" can be viewed in different ways depending on the context). If defamatory, a review must be made to determine if the defamatory statement was protected by an intracorporate privilege. If protected by this conditional privilege, it must be determined if evidence enough of malice exists to defeat this privilege and make the statements and the supervisor vulnerable in a defamation suit.

If the statements can be considered defamatory, what the court would then look at is if any privilege exists. When an employee communicates to an employer about a matter of common interest, an intracorporate privilege often protects the communication. The court would look at whether there was a legal or a moral (or even a social) duty for the direct supervisor to communicate with management about the conduct of an employee (you) under his supervision.

In your described situation, although the information was apparently volunteered by the supervisor which can lead to questions of malice, it appears that a duty exists and that the communication could be protected by an intracorporate privilege.

If it is shown that there is a duty to communicate and the communication was relevant to the common interest and therefore protected by privilege, the next question becomes whether the statement communicated was believed to be true by the person who communicated it at the time it was communicated.

And herein lies what I believe to be your most difficult area of proof.

Without clear and convincing evidence that your direct supervisor was communicating knowingly false information to senior management, you would lose any defamation action you may be considering, because the intracorporate privilege would hold.

I think the odds of a successful defamation suit, based ONLY on what you have posted here, would be awfully slim. Take the facts of your situation to an attorney in your area for a review.