Slander with no financial harm?

[Cross Hair]

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

I am part owner of a business dealing with a problem employee. In the middle of 2016 I promoted another employee to a supervisor position, at first the problem employee (who currently is working under a written reprimand) told me it was a great decision, the guy deserved the promotion. Later after he spoke with his wife he came back to me an accused me of age discrimination and unfair treatment. I ran thru the laundry list of issues with his job performance issues and explained out why he wasn't the right candidate for the supervisor position.

Since then he has been going around and telling other employees and even someone I know outside of the business that I told him I wanted him gone because he was too old and makes too much money. Nothing is further from the truth, and I have spoke with him once already about it and told him to stop saying it, yet in the last couple of weeks he has repeated the lie to two people that I know of.

At this point there has been no financial impact on me or our business over his comments, but the potential is there and frankly I don't appreciate the lies he is telling. Is there any kind of legal action I can take that would force him to stop? Such as something like a restraining order against verbal comments?

 

[Ohiogal]

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

I am part owner of a business dealing with a problem employee. In the middle of 2016 I promoted another employee to a supervisor position, at first the problem employee (who currently is working under a written reprimand) told me it was a great decision, the guy deserved the promotion. Later after he spoke with his wife he came back to me an accused me of age discrimination and unfair treatment. I ran thru the laundry list of issues with his job performance issues and explained out why he wasn't the right candidate for the supervisor position.

Since then he has been going around and telling other employees and even someone I know outside of the business that I told him I wanted him gone because he was too old and makes too much money. Nothing is further from the truth, and I have spoke with him once already about it and told him to stop saying it, yet in the last couple of weeks he has repeated the lie to two people that I know of.

At this point there has been no financial impact on me or our business over his comments, but the potential is there and frankly I don't appreciate the lies he is telling. Is there any kind of legal action I can take that would force him to stop? Such as something like a restraining order against verbal comments?

Why haven't you fired him?

 

[quincy]

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

I am part owner of a business dealing with a problem employee. In the middle of 2016 I promoted another employee to a supervisor position, at first the problem employee (who currently is working under a written reprimand) told me it was a great decision, the guy deserved the promotion. Later after he spoke with his wife he came back to me an accused me of age discrimination and unfair treatment. I ran thru the laundry list of issues with his job performance issues and explained out why he wasn't the right candidate for the supervisor position.

Since then he has been going around and telling other employees and even someone I know outside of the business that I told him I wanted him gone because he was too old and makes too much money. Nothing is further from the truth, and I have spoke with him once already about it and told him to stop saying it, yet in the last couple of weeks he has repeated the lie to two people that I know of.

At this point there has been no financial impact on me or our business over his comments, but the potential is there and frankly I don't appreciate the lies he is telling. Is there any kind of legal action I can take that would force him to stop? Such as something like a restraining order against verbal comments?

If you have good reasons for promoting one employee over another employee, and this problem employee is spreading falsehoods about the reasons for your decision to promote the other employee over him, I too am curious why you have not fired him.

Do you fear this employee will retaliate by filing an age discrimination lawsuit? How old is this employee?

Do you fear he could be dangerous to you or others if fired?

For defamation, saying to others that you are illegally discriminating against employees based on age would be defamatory if false. You and your company are being accused of violating the law. Harm to an individual or business reputation does not require a showing of economic harm (although evidence of economic harm makes defamation claim damages easier to support).

I am not seeing that a defamation suit stands to be your best course of action, however, or worth the high cost of pursuing. A defamation suit potentially can lead to greater harm to your company's reputation than any harm caused by the employee's spread of defamatory lies to others he works with. It is possible/probable that the other employees see this problematic employee as merely a disgruntled worker who was rightly denied promotion.

If speaking with the employee and explaining why he was not promoted has not stopped the flow of defamatory speech, it might be time to give this employee a final warning before firing him. I would discuss the termination of employment with a lawyer in your area FIRST, however, to make sure you are not giving this employee any ammunition to use against you in court, should he decide to file suit.

Unfortunately, there is nothing really that you can do to prevent him from speaking out against you, and there is nothing you can do to prevent him filing a legal action against you and your company.

Good luck.

 

[Cross Hair]

To answer the question of why the guy hasn't been terminated the short answer is as the minority owner I have never had full control over that aspect of our business, yet I am the one that deals directly with the employees. The majority owner is insulated from the day to day employee issues and has always been fearful to terminate anyone, even when I have shown just cause. In the last year we have been looking to sell the business and he is even more reluctant to cause any issues (such as a suit) that could affect any possible acquisition.

The employee mentioned is 61, but age has never been an issue, we have two employees older, another the same age and I myself am just four years younger. The guy has been with us for almost twenty years but the last few years his performance and attitude has gone to hell. As an employer we have been way to tolerant and it is biting us in the ass.

 

[quincy]

To answer the question of why the guy hasn't been terminated the short answer is as the minority owner I have never had full control over that aspect of our business, yet I am the one that deals directly with the employees. The majority owner is insulated from the day to day employee issues and has always been fearful to terminate anyone, even when I have shown just cause. In the last year we have been looking to sell the business and he is even more reluctant to cause any issues (such as a suit) that could affect any possible acquisition.

The employee mentioned is 61, but age has never been an issue, we have two employees older, another the same age and I myself am just four years younger. The guy has been with us for almost twenty years but the last few years his performance and attitude has gone to hell. As an employer we have been way to tolerant and it is biting us in the ass.

Wel, I guess if the majority owner is reluctant to fire any employee and is reluctant to cause any issues that might result in a lawsuit, your options are limited. It appears you are stuck with the employee and must put up with his nonsense.

Good luck.

 

[ALawyer]

You Need Actionable Advice from an Experienced Employment Lawyer

Wel, I guess if the majority owner is reluctant to fire any employee and is reluctant to cause any issues that might result in a lawsuit, your options are limited. It appears you are stuck with the employee and must put up with his nonsense.

Good luck.

Before you do anything further, or risk aggravating what may become a volatile situation, make sure your management is on board with whatever action you would propose. It sounds as if the majority shareholder is very reluctant to terminate the employee -- and I might suggest that he or she has very good reasons to be cautious.

It can be very, very expensive to defend against a wholly unwarranted claim of age discrimination -- even if you ultimately win the case -- where the employee is in a protected class (here well over 40).

Factual matters like age discrimination are rarely resolved on motions for summary judgment and thus defending a lawsuit could be expensive as it would have to progress thru depositions and trial in many states.

In some states attorneys fees are also recoverable by a wronged employee, so the stakes could get extremely high as a plaintiff's lawyer knows that the risk to the defendant employer will continue to increase the longer the matter continues as legal fees mount. While most reputable lawyers will refuse bogus cases, very often the facts are not all that clear. And not all lawyers are reputable. So if a less than stellar lawyer isn't busy but sees a colorable claim -- even though it is relatively weak -- they just may take it.

That is why speaking to your boss, and then having both of you speak to an experienced employment law lawyer makes sense. So might obtaining EPTL -- Employment Practices Liability Insurance -- for your business.

 

[quincy]

Before you do anything further, or risk aggravating what may become a volatile situation, make sure your management is on board with whatever action you would propose. It sounds as if the majority shareholder is very reluctant to terminate the employee -- and I might suggest that he or she has very good reasons to be cautious.

As to being cautious when terminating an employee's employment, there are equal risks to keeping an out-of-control employee in one's employ.

The other employees may start to wonder why the problematic employee is not being disciplined if his claims of discrimination are false. The lack of action on the part of management can make other employees start to question leadership and perhaps start to believe the falsehoods.

The integrity of management is being questioned, which is harmful to Cross Hair as manager and harmful to the reputation of the business.

As a note on filing a discrimination claim: The problem employee has, under Ohio law, six months to file a claim from the date of the alleged discriminatory practice - the promotion of the other employee, in this case. If the promotion occurred in mid-2016, a claim under Ohio law could now be time barred. Under federal law, an employee generally has 300 days.g

]That is why speaking to your boss, and then having both of you speak to an experienced employment law lawyer makes sense. So might obtaining EPTL -- Employment Practices Liability Insurance -- for your business.

I agree with what is quoted above. In fact, I recommended in my first post that Cross Hair consult with an attorney in Ohio before taking any action.

I would hope the business is already properly insured but, yes, liability insurance is important.

 

[Cross Hair]

Thank you for the replies.

The guy making false statements claims has already spoke with his attorneys and they agree it could be an age discrimination case, he told me this the first time I told him he needs to stop spreading false statements. I know for a fact his "attorneys" are his neighbors who are both retired lawyers, if he actually spoke with them or not I have no idea, the guy has a tendency to lie and try to manipulate.

From our side we do have a law firm on retainer but I have never spoke with them about employee issues. We are properly insured as well.

I am glad to learn there is a time limit to file an age discrimination suit, that is something I did not know, thanks for that info Quincy. The majority owner is aware of all the issues and agrees they are problematic to the day to day operations yet is still reluctant to let me take action other than giving the guy a written reprimand. The reprimand addressed his job performance and negative attitude, no mention was made of spreading slanderous statements, but I did address that verbally with him.

I should mention the majority owner has been essentially retired for twelve years so isn't here on any kind of regular basis, managing from afar certainly makes situations like this challenging since he isn't a part of the day to day activities. We have a company president in place and myself running the business, but I get zero support from the president, but that's a letter better suited for Dear Abbey. Our business went thru a lawsuit ten years ago filed by what was then our third partner, we won on all counts but it cost us $650k over three years to defend ourselves, so I understand why the majority owner is fearful, and now with the thoughts of selling the business we certainly don't want to be tied up in a lawsuit. It's just very frustrating to operate a business from a position of fear. I guess for now I will continue to document things as they develop.

Maybe I need to reverse my thinking, maybe I should sue the business for fostering a hostile working environment toward me. Can I sue myself? lol

 

[quincy]

.... Maybe I need to reverse my thinking, maybe I should sue the business for fostering a hostile working environment toward me. Can I sue myself? lol

People have sued their parents, Satan, God, and Santa Claus ... so suing yourself is not necessarily out of the realm of possibilities.

In fact, an attorney in Illinois did accidentally sue himself several years ago, much to his embarrassment.

But, all things considered, it is probably not the best of your options.

Discussing exactly what your (other) options are with your attorney seems to make the most sense. You have definitely been placed in a difficult situation.

Good luck.