In May, suspended New Orleans Saints linebacker Jonathan Vilma filed a defamation lawsuit against Roger Goodell, NFL commissioner, in a federal district court in Louisiana. Vilma seeks to recover damages for alleged defamatory statements made by Goodell in a series of press releases and reports that were issued in March 2012.
In particular, the Complaint alleges that in a March 2,2012 press release, Goodell stated that Saints executives, coaches and defensive players violated the NFL’s “bounty Rule” during the 2009, 2010 and 2011 seasons. Also on March 2, Goodell also disseminated a “report” to all 32 NFL teams that detailed the Bounty Program and raised allegations of misconduct by Vilma, including an allegation that that prior to the Saints playoff game in January 2010, Vilma offered $10,000 in cash to any player who knocked out opposing quarterback Brett Favre. Vilma also takes issue with a March 21, 2012, press release by Goodell that details the punishment to be imposed on the Saints and their personnel and a Memorandum of decision Goddell sent to all 32 NFL teams.
According to Vilma, Goodell’s statements about him in these press releases and reports “forever falsely taint and permanently damage Vilma in the eyes of NFL clubs, media, fans and sponsors, as a player who brazenly disregards NFL rules and intentionally attempts to injure his opponents.”
Vilma’s lawsuit is interesting in various ways. Certainly, the high visibility of the parties and the nature of the underlying allegations make for compelling headlines and talk show discussions. In addition, the notion of suing an employer for defamation raises interesting issues for employers outside of sports. Many employers may not appreciate that there is risk in making negative comments about employees and former employees, especially if the comments are made to individuals outside the company. Some scenarios that lead to problems include making accusations of fraud, theft and misconduct to customers, competitors, and prospective employers to name a few.
For example, in Cockram v. Genesco, Inc., a store clerk who was fired after mistakenly giving a receipt containing a racial slur to a black customer had the right to sue her former employer for defamation. The employee entered a generic phone number into her cash register when assisting a customer with a return of shoes, and alleged that she was unaware that a former employee had programmed the store’s database to associate that phone number with a fake customer address that contained racial slurs. This address was then printed on the receipt; the employee signed the receipt, and gave it to a customer. After the story gained media attention, the employer fired the employee and issued a statement that the employee “was responsible” for the action and that it was “shocked and sickened.” The employer later released a statement that another employee might have been involved, stating that “inappropriate references were entered by employees” into the store’s database. Although the district court held in favor of the employer, an appellate court reversed the decision and remanded the case for further proceedings. The court of appeals held that the employee had a claim for defamation because the employer’s statements could lead people to believe that the employee intentionally printed the slur on the receipt and was among the employees who entered the content into the store’s database.
The elements necessary to establish a claim of defamation are based on state law. In Georgia, to establish a claim for defamation, an employee must demonstrate that he or she was mentioned in a false statement made by the employer (written, including pictures and signs, or oral) and either heard by or published to a third party, and that some type of damage was suffered. Damage is assumed to be present when the statements in question associate an employee with the commission of a crime, with having a contagious disorder or being guilty of some debasing act, or with negative references about the employee regarding his or her trade or profession.
Defenses to a claim for defamation are that the statement is true or that the statement is privileged. Certain types of communications by employers regarding their employees are privileged, including
- Communications concerning employees, if disseminated on a need to know basis.
- Communications about the character or qualifications of an employee or former employee made to a prospective employer.
- Statements that relate to a private, internal investigation.
If the communication is privileged, the burden is on the employee to prove that the speaker had malice.
Because the economy is making it difficult for people to find employment, employers should be extremely careful not to disparage former employees to prospective employers. Here are some suggestions to avoid problems when dealing with job references:
- Try to obtain an employee’s consent to disseminate information to future employers along with a release from all claims arising from the release of such information.
- Consider adopting a policy that limits the amount of information to be given in response to reference checks. Avoid offering-up unrequested information or providing information that is not objective or verifiable.
- Limit the number of employees who are authorized to provide responses to reference checks.
- Only share comments about an employee’s performance to individuals who have a legitimate business purpose or interest in receiving the communication (including comments made within the company).
- Make truthful statements that are factual.
Although defamation claims by employees against employers are not as common as discrimination claims, they can be just as costly. Employers should take precautions to avoid unnecessary litigation.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.