Your reputation may be the most valuable asset you have.

False statements that tarnish your reputation may damage or ruin your career. Such statements may constitute defamation. Contact me to discuss your situation in a free consultation.

Defamation occurs when a 1) false statement; 2) is made to a third-party; 3) about another person; 4) that damages that person's reputation. Defamation in the workplace can occur in a number of ways, including by statements made in false performance reviews. Defamation comes in two forms, libel and slander. Cal. Civ. Code section 44.

Libel is a "false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." Cal. Civ. Code section 45. "A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof." Cal. Civ. Code section 45a. "'Special damages' means all damages that plaintiff alleges and proves that he or she has suffered in respect to his or her property, business, trade, profession, or occupation, including the amounts of money the plaintiff alleges and proves he or she has expended as a result of the alleged libel, and no other." Cal. Civ. Code section 48a(d)(2). 

As explained by the California Supreme Court, libel per se is defined as "any language which, upon its face, has a natural tendency to injure a person's reputation, either generally, or with respect to his occupation." MacLeod v. Tribune Pub. Co., 52 Cal.2d 536, 546 (19590). 

Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:

1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;

2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;

4. Imputes to him impotence or a want of chastity; or

5. Which, by natural consequence, causes actual damage.

Cal. Civ. Code section 46. Statements that fall within the categories listed in Section 46 are deemed slander per se

Examples of possible defamation in the workplace: 

  • Accusing an employee of criminal conduct. 
  • Statements that employee misused company funds and falsified invoices. Kelly v. General Telephone Co., 136 Cal.App.3d 278 (1982).   
  • Written statement that former employee was terminated and replaced with more experienced and knowledgeable personnel such that future services would be better and more efficient. 
  • Statements that an employee was not a competent engineer and a "traitor to the company." 

However, depending on the particular facts, the "common interest privilege" may apply to these examples, which provides that a 1) communication 2) made without malice 3) to a person interested 4) by another person interested are privileged (i.e., not defamatory). Statements made by management to employees are an example of privileged statements. See, e.g., McGrory v. Applied Signal Technology, Inc., 212 Cal.App.4th 1510 (2013). To overcome this privilege, one may show the statements were made with malice--i.e., made with hatred or ill-will toward the employee alleging defamation. Id. at 1538.

This information is not intended to provide legal advice. Because defamation is an intricate and fact-intensive area of the law, one should contact an attorney to ascertain whether particular circumstances constitute defamation