Depth Reference Information From Other Employers example essay topic

Table of Contents I. Introduction II. Definition, Types, and Examples of Defamation. How Employers Can Protect Themselves IV. How Employees Can Protect Themselves V. Conclusion VI. References I. Introduction The inability for certain individuals to find employment is oftentimes blamed on the previous employer that individual had. Nowadays many employers are being blamed and sue by former employees for giving negative references that have hindered their ability to find new employment with other agencies.

Mark R. Hornak comments on this problem that employers are facing in his article titled, Avoiding Defamation in the Workplace, Giving References, and Disciplining Employees While Avoiding Liability, by stating: This blame often evolves into a lawsuit for defamation, although the theories of intentional infliction of emotional distress, interference with contract, invasion of privacy, and discrimination have all been used to make a former employer pay for an ex-employee's misfortune. Employers are now very hesitant when asked to give any type of reference on a certain individual. This can cause another type of dilemma for the new employer for they might end up hiring the wrong person for the job. There are risks involved when giving references or disciplining employees.

Many employers worry that giving a reference or disciplining an employee will result in a potential defamation claim. They also have the additional worry of being held liable by another company or employer for hiring the wrong individual based off of the reference given by them. "Many employers refuse to comment on the job performance, and will only verify dates of employment, job titles and possibly salary. Yet those same employers would welcome in-depth reference information from other employers". (Rosen, Lester S.) A legal claim for defamation can entitle a person to recover for emotional damages and punitive damages. (Hurd, David, 1998) In order to avoid and / or reduce the defamation claims being filed by employees; organizations must understand the different faces and definitions of defamation, how to properly handle situations that arise, and know your rights as an employer.

II. Definitions, Types, and Examples of Defamation In order to prevent any lawsuits or grievances for defamation, it is very important for all organizations to understand the various classifications that fall under "defamation". Defamation can either be oral (slander) or written (libel). In order for a defamation claim to be established, all that is needed is the allegation that an untrue statement about a particular person was expressed or believed to be expressed to a third party.

(Hornak, Mark R. September, 1999) "Libel exposes or subjects you to hatred, contempt, ridicule, or disgrace, or causes you to be shunned or avoided, or injures you in your occupation". (Hurd, David, 1998) "Slander is an oral statement that tends to injure you in respect to your office, profession, trace or business. The statements generally suggest that you lack integrity, honesty, incompetence, or that you possess other reprehensible personal characteristics". (Hurd, David, 1998) It does not take much for one to feel as if they have been defamed, if you perceive that a statement about you has injured your reputation in any way a legal claim can be filed.

"The communication need not cause actual harm - it merely must be capable of impugning the employee's good name or reputation". (Hornak, Mark R. September 1999) In order for an employer to be held responsible for any type of defamation, the defamatory statement must be "published."Publication" can simply be talking about an employee to another person; a large audience is not needed. One person is considered to be too many already. (Hornak, Mark R. September 1999) There is another concept to publication, it is also known as "compelled self publication."Compelled self publication" is when an employer can be held liable for defamation of a terminated employee without even speaking a word.

A person is considered to commit "compelled self publication" when they are forced to disclose the events that lead to their termination based upon defamatory evidence to another prospective employer. "Liability attaches if it would be foreseeable to the employer that the employee would be compelled to provide the information". (Hornak, Mark R. September 1999) There are other types of defamation where it really doesn't involve another employer requesting information about a specific individual. One such example is "defamation by neglect". Defamation by neglect can be established when another person makes a derogatory comment about an individual and the employer adopts it whether it is intentional or not. This type of defamation mainly occurs when a derogatory comment concerning an individual is published and the employer does little or nothing to make sure it is removed.

(Hornak, Mark R. September 1999) An example of "defamation by neglect" is the case of Tacket vs. General Motors Corp., F. 2d 1042 (7th Cir. 1987), Thomas Tacket, a supervisor for General Motors sued GM for not removing a sign within the confines of their building. The sign referred to an incident that had happened previously but there was insufficient evidence to link Tacket to the entire incident, so he was simply transferred to another department. A sign, containing defamatory statements about Tacket, was first posted in the plant but soon taken down within days.

Another sign soon replaced the first, but this time it was stenciled on the wall. That sign stayed on the wall for approximately seven to eight months. Tacket expressed that the company's failure to remove the sign was an indication that GM was adopting the statements the sign read. General Motors was held liable for any and all damages resulting from that incident.

(Hornak, Mark R. September 1999) Employers can also be held liable for defamatory statements that are inferred by action rather than words alone, this is often referred to as "defamation by conduct". (Hornak, Mark R. September 1999) An example of this is the case of Berg vs. Consolidated Freight Ways Inc., 421 A. 2d 831 (Pa. Super. 1981).

In this case Berg was the employee that discovered a theft ring involving his immediate supervisors and other employees. Although he denied any involvement with the theft activities, he was still given the option of resigning or being terminated. Berg chose to resign from his position at Consolidated Freight Ways Inc. By being forced to resign along with the actual thieves, the employer's conduct suggested that Berg was involved with the scheme. Berg was defamed by Consolidated Freight Ways Inc. just by their sheer conduct. (Hornak, Mark R. September 1999) .

How Employers Can Protect Themselves There are certain defenses that an employer can utilize in order to prevent from being held liable for defamation of character. The Absolute Defense of Truth states that if a statement is true and can be verified, than a claim for defamation of character will not be supported. (Hornak, Mark R. September 1999) "If a true statement is made in a context that could cause a reasonable inference that is false, however, the statement may lose its protection". (Hornak, Mark R. September 1999) This suggests that if the statement is true but there is some implication that could mislead someone to interpret it as something else, then the absolute defense of truth will not protect them from being held liable.

Whenever there is some type of judicial proceeding involving an employer, the statements made there are absolutely privileged. (Hurd, David 1998) "Most proceedings involving wage or job related claims are judicial in nature, and statements made in those hearings are privileged". (Hurd, David 1998) This technically means that your employer is allowed to say just about anything they want about you, whether it is true or not, without the worries of being held liable. In order for an employer to be protected under the absolute privilege, all of the following conditions must be met: 1. The statement was made in a judicial proceeding. 2.

The statement had some connection or logical relation to the judicial action. 3. The statement was made to achieve the objects of the litigation. 4. The statement involved litigants or other participants authorized by law. (Hurd, David 1998) Under the qualified privilege, employers are allowed the liberty of giving out defamatory references.

This privilege attaches only if the employer follows the following conditions: 1. The reference is made with good faith believing in truth of the statements 2. The reference serves a legitimate business need. 3. The statements are made only to persons with legitimate interest in hearing the reference.

4. The reference is made only on a proper occasion. (Hornak, Mark R. September 1999) In order to enjoy this privilege, all of the conditions above must be met. If an employer does not abide by all of the conditions listed, then a claim for defamation may be in order. If an employee gives written consent to an employer to provide references, that employer is also protected under this privilege. (Hornak, Mark R. September 1999) IV.

How Employees Can Protect Themselves An employee can also take several steps to ensure that their reputation is protected when searching for a new place of employment after being terminated by the previous employer. "It is illegal for an employer to make a misrepresentation which prevents or attempts to prevent a former employee from getting a new job". (Hurd, David 1998) A misrepresentation by an employer can be something as simple as a gesture of some sort that could make another person interprets that in a negative manner. Proving that your previous employer "blacklisted" you to another agency is very difficult and sometimes impossible to do. Oftentimes, you will never know other than the fact that you were not offered a position that seemed promising or you are suddenly terminated after being recently hired.

(Hurd, David 1998) One of the best things a person can do to prevent blacklisting is to ask your employer for a written recommendation or job referral prior to being terminated. By doing this, you are protecting your reputation and not allowing your previous employer to ruin any future opportunities you may have with another agency. In an ideal situation, it is best if you write the letter of recommendation yourself. When writing the letter, be honest and emphasize your strong points. (Hurd, David 1998) "You will be surprised what you ex-employer will be willing to sign if he or she is presented with the choice at the moment that you are being terminated.

The employer that doesn't like you still wishes to avoid a confrontation, or worse, a threat to legal action, and will make concessions to you in order to make you disappear". (Hurd, David 1998) If your employer refuses to sign any letter of recommendation for you, be sure to let any new prospective employers know that you left your previous employer on bad terms and a good referral from them is unlikely. By furnishing this information to any new prospective employers, they will anticipate a bad referral thus lessening the impact of anything detrimental that could be said about you. By informing any new prospective employers about the possibility of a bad reference from your previous employer, you have committed compelled self publication.

The statements made to your prospective employer will be admissible in court to establish the fact that your were forced to defame yourself by disclosing any false statements that were made about you. V. Conclusion Filing a claim for defamation of character against an organization is quite serious. Many organizations now try to avoid that at all costs due to the losses that they can incur. One of the main losses being their own reputation, the loss of an organization's reputation could cause that entire organization to shut down. If more organizations take the time to properly train all of the management staff about the various definitions of defamation of character, a lot of problems can be avoided. Until organizations properly learn what exactly is defamation of character and fully understand their privileges, this will continue to be a problem in the workforce.

VI. References Hornak, Mark R. (1999). Avoiding Defamation in the Workplace, Giving

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Defamation & Blacklisting. Retrieved August 1, 2003 from web Rosen, Lester S.
Use Your References Well. Retrieved July 25, 2003 from web.