San Francisco Employment Lawyer: Defamation Per Se and Wrongful Termination

False statements and accusations (defamation) by one employee or a supervisor against another employee are not uncommon at California workplace and often lead to the unfounded and unsubstantiated discipline, suspension, demotion and even termination of employment of the victim of defamation. The tort of defamation involves a publication of facts that is false, defamatory, unprivileged, and has a natural tendency to injure an employee’s reputation or cause special damages. Taus v. Loftus (2007) 40 C4th 683, 720. The “publication” element in this definition doesn’t mean that the defamatory statement must actually be published in writing in some kind of newspaper or brochure. For the purposes of alleging a defamation action, publication occurs when a statement is communicated to any person other than a party defamed. Kelly v. General. Telephone Co. 136 Cal.App.3d 278 (1982).

defamation at California workplace

Defamation per se is a special kind of defamation which does not require the claimant to prove special damages / economic harm as a result of the statements made as otherwise required when bringing an action for defamation. Statements are defamatory per se if they tend to directly injure plaintiff in respect to his office, profession, trade or business, by imputing to him general disqualification in those respects which the office or other occupation specifically requires or charge the plaintiff with a crime.

Thus, stating that an employee made a $100,000 mistake in estimating a bid is defamatory per se because it would tend to injure plaintiff by imputing incompetence in his or her trade. Gould v. Maryland Sound Industries, Inc. (1995) 31 CA4th 1137, 1153-4. Likewise, accusing an employee of conduct that constitutes a crime, such as embezzlement or forgery, is slander per se. Kelly v. General Tel. Co. at 284.

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