Stormy Daniels, an adult film star, is suing a sitting U.S. president for defamation. She claims she had a brief affair with Donald Trump in 2006 and was paid to keep quiet about it on the eve of the 2016 election. President Trump tweeted his thoughts about her credibility, and the defamation lawsuit followed. Roy Moore, the unsuccessful Republican candidate from Alabama who ran to replace Jeff Sessions in the U.S. Senate, is suing four of his accusers for defamation and conspiracy, alleging their claims about his sexual misconduct toward them when they were teens were lies aimed at discrediting him.
With “fake news” the catchphrase of the day and name-calling permeating our social media feeds, some employers accused of inappropriate conduct may be wondering whether they should heed the familiar refrain of the schoolyard chant “Liar, liar, pants on fire” and sue ex-employees for defamation. After all, you may argue, you never said or posted any of the things the employee is attributing to you. But before you head down the path of a defamation claim, you should be aware that it’s a slippery slope.
The Danger of Counterclaims
No one likes to be accused of bad behavior unless he belongs to a heavy metal band and being a bad boy helps his image. Translating a false allegation into a viable legal claim of defamation is difficult for employers. There are always strategy issues to consider, particularly if other litigation is pending. The employee in any discrimination claim is always viewed by the jury as David to the employer’s Goliath.
Right or wrong, employees are cast as the underdog, simply fighting for their dignity and justice. That’s the scenario that plays out in many high-profile cases, including the Stormy Daniels/Donald Trump saga. Often, a jury will see counterclaims against an employee for defamation as piling on and adding insult to injury, which can backfire if the jurors decide to punish the employer.
Employees May Have Qualified Privilege
A second consideration is qualified privilege. When an accuser makes a statement in an administrative charge or a court filing, it’s generally “protected,” and she will be subject to immunity. Limited exceptions apply—e.g., when someone commits perjury—but immunity is often granted. Further, whistleblower protections apply to employees who complain to an agency about unlawful conduct (e.g., reporting unsafe conditions to the Occupational Safety and Health Administration, or OSHA). If the employee is complaining about working conditions, Section 7 of the National Labor Relations Act (NLRA) may come into play.
When trying to hold an employee accountable for untrue or inflammatory statements, an employer has quite a few pitfalls to navigate. The law makes it easy for employees to file a claim, regardless of whether it’s supported by facts.
Defamation Claims Can Be Difficult to Prove
Even simple defamation—uncomplicated by whistleblowing or other issues—can be difficult to prove. If you decide it makes strategic sense to file such a claim against an employee, the legal mechanics can be daunting. A 2013 Iowa Supreme Court case, Gale Bierman and Beth Weier v. Scott Weier and Office Solutions, Inc., sets out the state law applicable to libel and slander claims.
Scott Weier published a book “based on [his] life” in which he accused his ex-wife and her father of “lying, abuse and suffering from mental illness,” thus triggering the lawsuit. Unlike many employment law claims, the case was fairly clear-cut, and there were no inherently protected statements analogous to the complaints an employee would make to an administrative agency or a court. Although it involved the publication of a book, the opinion addresses many concerns an employer filing a defamation suit might face.
Traditionally, a defamation claim includes the following elements: (1) publication of a statement that (2) was false and malicious, (3) concerned the person who filed the defamation claim, and (4) caused damage. Defamation is the umbrella term, with libel involving written statements and slander involving oral communications.
There are also distinctions between libel per se and libel per quod. Libel per se means the challenged statements can be deemed a violation of law without proof of malice, falsity, or damage. Libel per se claims might involve statements that someone was a drug addict or beat his partner or, as in the Weier case, that Satan was working through her. Libel per se could also include allegations that a manager assaulted or sexually harassed an employee or coerced her into having sex. Libel per quod traditionally involves less serious allegations and requires the accuser to prove all the elements of a defamation claim, including that some injury, such as reputational damage, occurred.
Keep in mind that employees speaking about matters of public concern generally won’t be subject to defamation claims. To prove a defamation claim against someone whose allegedly defamatory statements involve matters of general or public interest, you must be able to establish actual malice (i.e., the speaker’s intent to harm). An employee defending a defamation claim can easily argue that both public policy and statutory law require her to report issues involving discrimination, safety, or criminal behavior. All of that is enough to make any employer’s head spin and convince it to give up trying to prove defamation, even if it occurred.
While defamation exists as a viable claim in Iowa and defamation per se is easier to prove when two private entities are involved (as opposed to public entities or the media), a wide array of factors complicates potential defamation claims. Public good is a strong defense to a defamation claim and can quickly shift the argument in the employee’s favor. Further, the law hasn’t quite caught up with the practical differences between a published report in a newspaper with limited circulation and tweets that often reach thousands of followers in a mere moment.
To file a defamation claim is to head down the rabbit hole in any employment case. Such claims can be useful in politics but are overly complex for most employers.