When can you sue your employer for defamation?

When you’re applying for new jobs, it’s crucial that you have good references to vouch for your past performance. But what if you didn’t get along well with your boss, and they say something bad about you? It can be tricky to know how and when to bring a defamation lawsuit.  Private employees may be able to bring a defamation lawsuit against a past employer who shares false information, but government employees have more limited legal options.

What is defamation?

Essentially, defamation is when a person tells a harmful lie about you to someone else.  The statement must be (1) false, (2) harmful, and (3) made to a third party to be defamatory. It is not defamatory for an employer to share truthful negative information about you, and a plaintiff bringing a defamation lawsuit has the burden of proving that the statement was false. An employer is also entitled to share his or her opinion about you; an opinion is not defamatory because it is not provably true or false.

While the basics of defamation are the same across jurisdictions, there are also some nuances to bringing a defamation lawsuit in D.C., Maryland, and Virginia.

Defamation in Virginia:

Virginia defamation law is favorable to employees in that statements about employment matters are generally presumed harmful. Virginia common law considers some statements so bad that they are “defamatory per se,” including:

  1. Accusing someone of a criminal offense involving moral turpitude (i.e. lying, cheating, stealing);
  2. Implying someone is infected with some contagious disease that would exclude them from society;
  3. Implying someone is unfit to perform the duties of an office or employment, or lacks integrity in performing such duties; or
  4. Prejudicing someone in his or her profession or trade.

The last two kinds of statements, implying someone is unfit for employment or prejudicing someone in his or her profession, are particularly helpful for employees seeking to bring a defamation suit in Virginia. In such cases, proving damages is unnecessary–the injury is already presumed.

Virginia law recognizes that a qualified privilege protects an employer’s communications with other interested parties (such as a potential employer). This privilege can be lost, however, if your former employer acted maliciously or with reckless disregard.

Defamation in Maryland:

Maryland also recognizes that communications arising out of employment relationships are protected by a qualified privilege. An employer acting in good faith is immune from liability for disclosing information about an employee’s termination or performance if requested by a prospective employer, the former employee, or by a government/regulatory authority. The employer is presumed to act in good faith but can be liable for defamation if you show clear and convincing evidence of actual malice or intentional/reckless disregard of the truth.

Defamation in the District of Columbia:

As in Maryland, a D.C. employer may not be liable for defamation if the statement is protected by the common interest privilege (i.e. made to a third party as part of an employer’s work duties or functions).

In addition to defamation, D.C. law provides for a similar cause of action called invasion of privacy or false light. Invasion of privacy/false light applies to situations where a person publishes false information that puts you in a false light. To bring a successful invasion of privacy/false light claim, you must prove that the publisher knew or acted in reckless disregard of the matter’s falsity. Here the statement need not be false to be actionable.

A note on defamation for government employees:

Government employees have more limited legal options when it comes to defamation. The government is protected by sovereign immunity, which means that it can’t be sued except for certain kinds of lawsuits. Sovereign immunity applies to both the state and federal levels of government.

There are other legal options, aside from a lawsuit, for a federal employee to pursue a claim for defamatory conduct. You can file a grievance within the agency, a claim with the Office of Special Counsel, or a complaint with the Office of the Inspector General. Additionally, the statements could be included in an EEO compliant if you were targeted due to a protected characteristic such as race, gender, religion, national origin, age, or disability.

Alan Lescht and Associates can help with your defamation case:

Our firm has attorneys who are experienced with workplace defamation in both public and private sectors. For example, in Eby v. DHHS, we won an appeal before the EEOC Office of Federal Operations finding the agency breached a settlement agreement by failing to provide a neutral reference. If you believe you have a workplace defamation claim, give us a call today at (202) 463-6036, email us, or visit our website.

New law affords greater whistleblower protections to federal employees

Recently, a new law went into effect that better protects federal whistleblowers from retaliation by their supervisors. The Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017, unanimously passed by both chambers of Congress, aims to deter supervisors from punishing federal employees for exposing agency mismanagement. It also includes some agency-specific requirements to better protect Veterans Affairs employees’ privacy interests.

How will the law protect federal whistleblowers?

Many federal employees who disclose wrongdoing suffer the indignity of being targeted by their managers after speaking out about governmental waste, fraud, and abuse. Such was the case of Dr. Chris Kirkpatrick, a Department of Veterans Affairs psychologist who sadly committed suicide the same day he was fired in retaliation for whistleblowing. Dr. Kirkpatrick raised concerns about the over-prescription of opioids to veterans at a VA facility that was known to patients as “Candy Land.” Until last week, there was a lack of consequences for individuals engaging in such retaliation, and managers were even rewarded with bonuses and raises for harassing whistleblowers.

The new law, named after Mr. Kirkpatrick, requires that agencies train managers how to handle whistleblower complaints and provide a disciplinary process for retaliating managers.

The law also requires that the VA develop a plan to prevent unauthorized access to employees’ medical records, and it must reach out to employees to make them more aware of available mental health services.

Are you a federal whistleblower?

If you have questions about federal whistleblower protections or retaliation, contact Alan Lescht and Associates today.  Call us at (202) 463-6036, or email us. We offer strategic and results-driven legal services to federal government employees around the world.