Florida Law for Employer Defamation

posted by Donna Ballman | Aug 11, 2009 6:25 PM [EST] | applies to Florida

Suppose an employer accuses its employee of theft, and fires her for that reason. Suppose the employer then tells prospective employers who call for a reference that the employee was terminated for theft, but the employee can prove that she did not do it. Does the employee have a claim against the employer for defamation?

Florida Employers can be Liable for Defamation

Florida employees may be able to sue former employers for defamation of character. Defamation is where someone makes knowingly false statements, or makes false statements with reckless disregard as to their truth. The false statements must be factual statements as opposed to opinion.

Under Florida law, a statement is libelous per se when it falsely accuses another of a criminal offense amounting to a felony, or conduct, characteristics, or conditions incompatible with the proper exercise of one’s lawful business, trade, profession, or office. If a statement is libelous per se, the employee does not have to prove actual damages. Instead, the law presumes that false statements about the commission of a serious criminal offense or similar conduct causes harm to an individual's reputation. This means you will not have to show that the statements were made with malice.

Non-defamatory Statements

Statements made:

only to the individual;
in court, or
to the unemployment compensation review board (currently called the Agency for Workforce Innovation in Florida) are never defamation.

A statement must be published to a third person to be defamatory. Therefore, statements made by one supervisor to another may not be defamatory, since both individuals are acting as agents of the same employer. The law treats statements made in a judicial setting as "absolutely privileged" and therefore immune from defamation liability. Such statements are immune, even if knowingly false and made out of malice, since Florida public policy puts a higher value on unihibited speech in court then the protection from false accusations made in court.

Statements to people who have a direct or legitimate interest in the matter (such as to the human resources investigator or named witnesses during a disciplinary investigation) are usually privileged, which means the employer is immune from suit based on them. Florida law treats such statements as protected by a "qualified privilege." The qualified privilege is lost if the statements are made with reckless disregard as to their truth, are made outside the circle of those who have a legitimate interest (in other words, are known throughout the workplace or outside the workplace), or are knowingly false. For example, a co-worker who accuses an employee of assault is immune from a defamation suit by the accused, unless the accused can prove that the statement is not only false (witnesses and videotape confirm that it did not t happen), but was made by the co-worker so he or she could get the accused fired to get his or her job.

Employer Defense to Defamation

True statements are never defamatory. The employer who made the statement has the burden of proving that the statements were true. Witnesses, videotapes, invoices, telephone messages, and other documents are evidence in defamation suits as to the truth or falsity of the statement.

An employer is also immune from liability for defamation for responding to reference requests made in "good faith." See: Qualified Privilege Protects Florida Employers from Employee Reference Defamation Suits

Repeating False Statements or Rumors may be Defamatory

If an employer repeats false information, it may be liable for defamation as though it made the original statement. For instance, where a corporate chairman notified the board of rumors circulating about the corporate president, to the effect that he was rumored to have engaged in an insurance kickback scheme, and the rumors eventually left the workplace and were heard at a credit union convention, the corporation was held to be liable for defamation. Similarly, a competitor who spread rumors that another businessman was bankrupt, a Florida court found him liable for defamation.

Even the implication that a person left under a cloud can be defamatory. In one case, where a lawyer was described as having “suddenly resigned”, the terminology implied that he had left under a cloud of suspicion or scandal that harmed his professional reputation, and was determined to be defamatory.

If a corporation knows its employees are spreading false information and takes no action to stop them, it may be liable. If corporate officers are the ones making defamatory statements, the corporation will almost certainly be liable, absent a qualified privilege.

This article was posted by Donna M. Ballman, P.A., 4801 S. University Dr., Ste. 3010, Ft. Lauderdale, FL 33328; Licensed to practice in Florida.

This article is for informational purposes only and is not intended as legal advice or to establish an attorney-client relationship.

External Links

Metropolis Co. v. Croasdell, 199 So. 568 (Fla. 1941)
Klages v. Sperry Corp., 118 L.R.R.M. 2463 (E.D. Pa. 1984)
Randolph v. Beer, 695 So. 2d 401 (Fla. 5th DCA 1997)
Rety v. Green, 546 So. 2d 410, 425-26 (Fla. 3d DCA 1989)
Drennen v. Westinghouse Elec. Corp., 328 So. 2d 52 (Fla. 1st DCA 1976)

Revision History

Aug 17, 2009 1:31 PM [EST] - Edit by Donna Ballman