Employment Post-Termination Defamation and Disparagement Claims: Avoiding Liability, Limiting Damages

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Wednesday, April 13, 2022

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Course Materials

This CLE webinar will advise employment counsel on recent decisions on liability post-termination involving claims of defamation or disparagement. The panel will provide an overview of the types of defamation claims and the likely scenarios in which employer liability exists and when former employees may have successful claims. The panel will discuss best practices for employers regarding job referrals, evaluations, and termination notices.

Description

When an employment relationship ends, both employers and employees can feel that the situation was unfair or unjust in some way. What each party says publicly and privately about the other can be the subject of defamation claims and potentially significant damage awards.

Recent cases have resulted in multi-million-dollar awards to employees that sued former employers for defamatory disclosures on termination paperwork. These cases are cautionary tales for employers; there is a difference between a frank disclosure and a harmful exaggeration or lie. Employers who are legally required to report the reasons for an employment termination should implement proactive measures for accurate, but prudent filings that satisfy any regulatory agency's requirements and minimize the likelihood of defamation lawsuits.

Employers also seek defamation claims against former employees, often based on reviews published on the internet. Websites typically refuse to remove potentially defamatory statements, based on both First Amendment and Section 230 of the Communications Decency Act, which can lead to damage to the employer's reputation. Employers should be careful about pursuing all sorts of perceived defamatory statements as recent anti-SLAPP decisions have allowed defendants to seek dismissal of defamation cases in situations where the action attempts to infringe on a person's right to petition or to speak or associate freely in connection with a matter of public concern.

Some employers try to include non-disparagement language in employment contracts as well as severance agreements. In a case before the National Labor Relations Board, it was found that such restrictions violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by restricting employees' rights under Section 7 of the NLRA. Under Section 7, employees have the right to choose to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection," such as discussing wages, benefits, and other terms and conditions of work with other employees. Section 8(a)(1) restricts employers from interfering with employees attempting to exercise their Section 7 rights.

Listen as our expert panel discusses recent cases related to employment and defamation. The panel will address how employers should document grounds of termination, when employees or employers have the best potential for a defamation case, and what type of non-disparagement language will be enforceable against employees during and after employment.

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Outline

  1. Defamation
    1. Elements
    2. Damages
    3. Employee claims
    4. Employer claims
  2. Non-disparagement language
    1. NLRB standards
      1. Employment agreements
      2. Severance agreements
  3. Best practices
    1. Personnel records
    2. Termination notices

Benefits

The panel will address these and other key issues:

  • When does an employee have a defamation claim due to information on termination documentation?
  • What should employers consider when pursuing a defamation claim against an employee based on internet posting/reviews?
  • What clauses can be included in an enforceable non-disparagement clause in an employment agreement? Is there enforceable language that can be included in a severance agreement?

Faculty

Elkins, Michael
Michael Elkins

Founder
MLE Law

Mr. Elkins is 20 year, nationally quoted labor and employment and sports law attorney. His labor and employment...  |  Read More

Lebel, Philippe
Philippe A. Lebel

Senior Counsel
Proskauer Rose

Mr. Lebel represents employers in all aspects of employment litigation, including wage and hour, wrongful termination,...  |  Read More

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