Joseph Ainley, employment attorney, on Defamation

The Law Offices of Joseph H. Ainley provide services to cover all of your employment-related legal needs. The bulk of our practice is devoted to litigation in cases, for example, where the employee has been wrongfully terminated, or an individual or a group of people have been denied overtime benefits. We also offer employment counsel. Frequently, employees face a situation at work which potentially has profound consequences for them, but they are unsure how best to act. In this context, one issue that is repeatedly of concern is where an employee is offered a severance package in exchange for a release of claims that they employee may have against his or her former employer. In this situation, legal counsel can be invaluable in maximizing the amount of any severance package.  Some of the specific areas in which we are pleased to offer services are the following:

Defamation

The Ainley Law Firm is particularly skilled in defamation, having litigated many cases in which employees have been defamed by management during their employment. An employee may be defamed in one of two ways: by a false statement in writing (libel), and by a false spoken statement (slander). In the employment context, the most common defamatory statement is one which is made in writing. As with other employment-related matters, libel in the employment context is complex and must be pursued carefully with a clear plan of attack. In essence, libel is any false statement in print which has a tendency to injure a person in their occupation or which falsely accuses them of dishonesty. It does not matter whether the statement is phrased as an opinion or as a statement of facts. (Defense lawyers always contend that a statement of opinion cannot be sued upon, only a statement of fact. At Ainley Law, we have succeeded in persuading the courts on every occasion in which the issue has arisen, that a statement of opinion is just as libelous as a statement of fact.) In a case called Jensen v. Hewlett-Packard (1993) 14 Cal. App. 4th 958, the court held that statements in an employeeís performance review could not be libelous because those statements were ìprivileged.î Accordingly, it is important that any claim for libel or slander arise from statements that are made outside the context of a performance review. Recent case law allows plaintiffs to pursue libel claims for false statements made in termination letters, emails, and other documents which are not part of a ìformalî performance review.

Defamation is a powerful weapon because, in most cases, damages are presumed to have been incurred by the plaintiff. That means that a jury is free to award whatever damages it deems appropriate. A defendant, faced with that possibility, has no reliable way to gauge its risk: it all depends upon the jury selected. For that reason, a well-articulated libel or slander claim can be an extremely valuable tool in leveraging the value of a case. However, expertise in the law of defamation in the employment context is hard to find. Even experienced employment attorneys are often unaware of the nuances of defamation. For example, one of the requirements to maintain a claim for defamation is that the statement be published; that is, that the statement be shown to somebody or read by somebody. If the statement is written and then given only to the employee, the defense usually argues that there has been no ìpublicationî for purposes of defamation. However, there is a legal theory called the ìdoctrine of self-publication,î which essentially means that where an employee is given reasons for termination which he or she is likely to have to repeat in a subsequent job interview, then the publication element has been met. At Ainley Law, we always review an employeeís file with great care and, wherever possible, assert claims for libel and slander.