Defamation standards can be tough to meet
Published 11/05/04

If an employer fires a worker for some wrong doing that the worker did not do and the worker thereafter has to tell prospective employers the reason the worker was fired, the worker may feel he can sue her former worker for defamation.

Such was the issue in the case of Roy Albert White v. Blue Cross and Blue Shield of Massachusetts, Inc. decided by the Massachusetts Supreme Judicial Court this year. In that case White, a former worker of Blue Cross, sued Blue Cross for defamatory statements made to White while he was employed by Blue Cross and subsequently communicated by White to prospective employers.

To prevail on a claim of defamation the worker must establish that the employer was at fault for the publication of a false statement regarding the worker, capable of damaging the worker's reputation in the community, which either caused economic loss or is actionable without proof of economic loss. The publication requirement of defamation requires that the employer communicate the defamatory statement to a third party. White argued that the Massachusetts Court should adopt the compelled self publication defamation doctrine, which has been established by a few other Courts.

The Massachusetts Court refused to recognize this doctrine and upheld the dismissal of White's claim against Blue Cross. The Court noted that White was an employee at will and Blue Cross was not required to give any reason for firing him. However, there is an important public purpose of promoting free flow of information in the workplace. A worker should know why his employer fired him. If the doctrine of compelled self publication defamation was to be adopted the Court noted this would curtail employers from telling the workers why they are being fired or why other possible corrective action was being taken against them.

In this particular case White had been fired because Blue Cross had received a complaint from Winchester Hospital to the effect that White, while in the presence of representatives from other hospitals, had divulged the details of a confidential financial settlement between Blue Cross and Winchester Hospital .

White denied that this was true and further stated he did not even know the details of that settlement and argued that Blue Cross should have done a further investigation before firing him. The Court pointed out that Blue Cross in dealing with White as an at will employee did not have to give him a reason for firing him and even if the reason it gave for firing him turned out to be unsupported by the true facts White had no legal claim against Blue Cross.

This decision should give Massachusetts employers some comfort level that they cannot be sued for telling the worker why they were being fired. The Massachusetts Court seems to following a general legal trend in this regard and it is quite possible that a New Hampshire Court might also refuse to adopt the doctrine of compelled self publication defamation.

An employer should be mindful however that if it decides to intentionally lie about the reason why it fired a worker and the worker sues the employer, the judge or jury may find the employer's testimony in that litigation less credible because of the previous lie.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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