When it comes to defamation claims in Texas, several elements are required, including “the publication of a false statement of fact to a third party.” Generally, that doesn’t include instances of self-publication—when the defamed person himself relays the defamatory statements to a third party.
In a recent case, the Texas Supreme Court refused to recognize the theory of compelled self-defamation (self-publication). In doing so, it reinforced the at-will employment doctrine while at the same time protecting employers from employees who may self-defame to run up damages for a future lawsuit.
“Geoffrey,” a refinery tech worker for an Exxon contractor, tested positive for marijuana after a random drug test. According to company policy, he would remain “inactive” and unable to work until he passed certain rehabilitation requirements.
Incredulous of the test results, Geoffrey went to a private doctor the next day to take another drug test. This time, the test came back negative. However, his employer didn’t accept the results because the test wasn’t sanctioned by their drug program.
Geoffrey never completed his employer’s rehabilitation program and remained “inactive,” though he was never formally terminated. He filed a lawsuit alleging defamation—specifically self-defamation—because he was compelled to disclose allegedly defamatory statements regarding his drug-test results to prospective employers.
The Texas Supreme Court ruled in favor of Exxon Mobil and shut down the theory of self-publication. It found self-publication incompatible with Texas’ at-will employment system because it would force employers to investigate before taking action against an employee. Furthermore, self-publication would stifle evaluations in the workplace because employers would act to protect themselves from defamation claims rather than provide candid feedback.
The Texas Supreme Court’s ruling provides employers that perform drug tests an extra layer of protection by making it more difficult for employees to sue them for defamation in the event of a positive test result. Additionally, this ruling has the added benefit of making evaluations and communications about employee performance more open and honest.
Regardless of the ruling in this case, you should still take the proper precautions when drug-testing your employees or providing evaluations.
- Know the self-publication laws in your state. Although self-publication isn’t a recognized claim in Texas, it’s alive and viable in other jurisdictions.
- Evenly apply your drug-testing or substance abuse policy. The employer in this case had an established drug policy as well as a way for employees to engage in a rehabilitation program. Even if you have a thorough policy in place, be sure to apply it evenly to all employees to avoid discrimination suits.
- Be careful when providing information as a reference for former employees. The ruling refused to recognize self-publication by employees but didn’t address situations in which employers are the ones communicating with third parties.
Employment laws are nuanced and constantly evolving. If you have questions about navigating employee drug-testing, evaluations, and references, contact an experienced labor and employment firm to help you.
Jacob M. Monty–the managing partner of Monty & Ramirez, LLP and editor of Texas Employment Law Letter–practices at the intersection of immigration and labor law. He can be reached at firstname.lastname@example.org or 281-493-5529.