Can We Sue a Former Employee for Defamation?

 

The short answer is yes, but the real question at the end of the day is should an employer sue a former employee for defamation.  If a former employee makes a false statement about his or her former employer publicly, the business owner (corporation, partnership, individual, etc.) could have the basis for a defamation lawsuit. Employers who are able to establish that defamation from a former employee has caused them harm may able to obtain compensation for the resulting damages. In many situations, however, defamation can be difficult to establish. Therefore, it is important to obtain the assistance of an attorney if you are looking to pursue legal action.

What is Defamation? 

Defamation occurs when a person makes an intentional false statement that results in harm to another individual (i.e., injures the individual’s reputation). If these statements are made orally, they are called slander. If these statements are written, they are called libel. In the case of employment situations, defamation often occurs after a worker has been terminated. A former employee might share false information about a previous employer and consequently damage the first employer’s reputation in the industry. 

Texas Law and Workplace Defamation

In accordance with Texas law, establishing a successful defamation action requires establishing several elements:

  • The defendant (in this case a former employee) publishes a statement of fact that referred to the plaintiff (in this case the employer)
  • The statement was defamatory
  • The statement was false
  • With regard to the truth of the statement, the defendant (1) acted with actual malice, (2) was negligent, or (3) was liable without regard to fault
  • The plaintiff suffered injury

The greater the degree to which a statement concerns “moral turpitude,” the stronger a defamation case will likely be. A false statement about an employer’s character is more likely to cause damage. 

Defamation on the Internet

The internet has greatly increased our ability to communicate and has also increased our ability to defame individuals in harmful ways. This can be particularly damaging to employers who depend on their reputation to succeed in the competitive business world. Many times, websites refuse to remove defamatory statements. As a result of federal law promoting free speech, the burden for removing an offensive post is placed on the poster rather than the individual who hosts the website. As a result, to have defamation removed from a website, a person often must pursue legal action against the poster. If the identity of the poster can be determined, legal action is often required to remove the statement. That said, employers should be careful about pursuing all sorts of perceived defamatory statements.  Recent anti-SLAPP decisions in Texas allow defendants to seek dismissal of defamation cases in situations where the action attempts to infringe on a person’s right to petition or to speak or associate freely in connection with a matter of public concern.

So back to the question asked at the beginning – should an employer sue a former employee for defamation?  And the typical lawyer answer is that it depends.  It is not something that should be pursued lightly and there are numerous issues to consider.

A defamation claim is not an everyday employment law matter and requires an attorney with litigation experience. The attorneys at Simon | Paschal PLLC are seasoned employment law attorneys who are also experienced litigators.  Should a former employee damage your organization’s reputation, contact us today to schedule a consultation.

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