A common worry that many people have after leaving a job is “can an employer say why I was fired?” The short answer is basically as long as what they are saying is true, your former employer can say why you were fired.
The First Amendment says:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Courts in the US have construed the rights under the first amendment broadly as to lean towards preserving rather than restricting speech. However, the rights under the first amendment are not absolute. Courts have upheld laws that serve to effectively restrict speech. One of these types of laws is called defamation.
Defamation is an old common law claim. Defamation is where a person communicates a false statement to one person about another third-person that creates a negative or false impression about that third-person. There are two forms of defamation, libel and slander. Libel is where the communication is made through written or printed words, pictures, or in any form other than by spoken words or gestures. Slander is where the false statements are communicated by spoken words or gestures.
Different standards apply to public and private figures. Private figures need only show that the defendant was negligent with respect to the truth or falsity of the statement, writing, etc. Public officials and public figures typically must show that the defendant acted with actual malice. This means they must show the defendant knew that the statement was false, but the defendant published it anyway. Most day to day people are probably considered private figures, but that can change. If you were involved in a newsworthy incident leading to your termination it might make you a public figure.
Defamation laws differ from state to state. In most states there are what is called defamation per se statutes. This means that for certain types of defamatory statements, damages are presumed and do not have to be proven. Defamation per se is for statements that the community has deemed to be so obviously harmful to the reputation of the person falsely accused that the person defamed does not have to be show any as to specifics how the false statement harmed them. Under Georgia defamation law, for instance, a statement is defamatory per se if it:
- charges another person with a crime punishable by law;
- charges another person “with having some contagious disorder or with being guilty of some debasing act which may exclude him from society;” or
- refers to the trade, office, or profession of another person, and is calculated to injure him.
False statements about the reason for termination, or false statements about work performance, or false statements about workplace incidents may be considered defamatory per se.
An important thing to know about defamation is that not every false statement is actionable. In line with the concept of expansive First Amendment protections, statements of pure opinion can not be defamatory. For example, Betty Boss saying “Suzy was fired because she was such a jerk”, may not be defamatory even if it is false. Suzy’s jerkiness might be seen as Betty’s opinion. Saying “Suzy was fired for stealing $100 from a cash register on July 30” is a statement of fact, and would probably be actionable if false. One of the major tests to distinguish whether a statement is fact or opinion is whether the statement can be proved true or false in a court of law. Mixed statements of fact and opinion may also be defamatory.
As always, talk to an attorney in your jurisdiction. Attorney Benjamin Kandy is barred in the State of Georgia and is more than happy to speak with you about employment issues like defamation or wrongful termination.
This is not legal advice. This page does not create an attorney-client relationship between the reader and Attorney Benjamin Kandy.