Overall the best way to avoid any mishaps, defamation
lawsuits, or other civil liabilities is for the human resources departments or
other former employers to ensure that they review all outgoing information with
a legal advisor before proceeding freely with information. The mistake of not passing on vital
information or realizing harmful statements can have serious repercussions for
a business and need to be taken seriously at all times. Businesses that have employee handbooks need
sure that those items and company policies are reviewed by the human resources
departments and a legal advisor on a regular basis to maintain compliance.
The Veterans Administration has changed the policy that any
settlement awards of over $5,000 for defamation or similar cases must be
referred to the Washington D.C. Headquarters for final approval according to
the current VA Secretary David Shulkin (Slack and Sallah).
“Michael Carome, a doctor and director of the health research group at
Public Citizen in Washington, said removing records from personnel files and
providing neutral references create potential danger beyond the VA” (Slack and Sallah).
Final research on the current activities relating to subject
of defamation and disclosing information that is pertaining to a job or the
safety of others led to my finding of an article in USA Today that discusses
the Veterans Administration and the past inability of the agency to disclose
information about doctors to perspective employees and boards of review for the
licenses granted to doctors. The article
says “In some cases, agency managers do not report troubled practitioners to
the National Practitioner Data Bank, making it easier for them to keep working
with patients elsewhere. The agency also failed to ensure VA hospitals reported
disciplined providers to state licensing boards” (Slack and Sallah).
My final case of example is Lewis v. Equitable Life Assurance Society of the United States. This case was sent to the Court of Appeals of
Minnesota because the Equitable Life Assurance Society of the United States
felt that they didn’t need to pay all the amounts that were awarded to the four
plaintiffs by a different court with a jury (Lewis v. Equitable Life Assurance
Society of the United States). The final judgement before appeal granted the
plaintiffs awards for breach of contract and defamation and included awards for
compensatory and punitive damages. Judge
Randall issued a final decision that was slightly modified in favor of
Equitable Life Assurance Society which stated “Although the jury could still
have found actual malice based on the first standard, by allowing the jury to
focus on Equitable’s attitude towards the truth of its grounds for termination,
the court permitted the jury to find defamation liability merely for wrongful
termination. I do not agree that these were harmless errors.” (Carole
LEWIS, et al., Respondents,v.The EQUITABLE LIFE ASSURANCE SOCIETY OF the
UNITED STATES, Appellant). He basically stated that for the reasons
stated he reversed the trial court on the defamation claim. He also goes on to
say that the “respondents have established no more than a breach of their
employment contract, for which punitive damages is not available” (Lewis v.
Equitable Life Assurance Society of the United States).
The case of Jerner v.
Allstate Insurance Company showed us that not disclosing information about
a potentially violent former employee can lead to a lawsuit. Allstate Insurance Company failed to disclose
information about a former employee that had brought a gun to work, was
released in a corporate restricting, and then resulted in the death of three
supervisors at his new job (Jerner v. Allstate Insurance Company). The lawsuit was settled for an undisclosed
amount of money in the Florida Circuit Court.
However, it demonstrates the way in which employee violence is an issue
when communicating with a former employer for a reference and how the results
can turn tragic and costly in time, money, and loss of lives. There are other reminders for us in using
certain terms like “going postal.” The
“going postal” term is derived from a term in reference to the tragedy in
Oklahoma in August of 1996 when a postal worker walked into an Oklahoma Post
Office and killed fourteen coworkers before turning the gun on himself and
committing suicide (Smith, Gambrell & Russell, LLP).
Opportunity Commission, Amicus
Curiae, v. Shell Oil Company was a case that Charles T. Robinson, Sr. was
fired by Shell Oil Company and filed a discrimination lawsuit against Shell Oil
Company through the Equal Opportunity Commission that was under Title VII of
the Civil Rights Act of 1964 (Robinson v. Shell Oil Company). During the time the case was in a pending
status, Robinson applied for a job with another company, that company contacted
Shell to verify the employment reference, and Robinson claims that Shell gave
him a negative reference in retaliation for filing the law suit (Equal
Employment Opportunity Commission, Amicus Curiae, v. Shell Oil Company). Under the Title VII provision of the law it
is “unlawful for an employer to discriminate against any of his employees or
applicants for employment who have availed themselves of Title VII’s
protections” (Robinson v. Shell Oil Company). However the ruling of the lower court was
over turned by the Supreme Court “In an unanimous decision, authored by Justice
Clarence Thomas, the Court ruled that because the term “employees,”
as used Title VII of the Civil Rights Act of 1964, includes former employees,
Robinson may sue Shell for its allegedly retaliatory post-employment actions.
Justice Thomas wrote for the court that barring such protection to former
employees while current employees have it, “would provide a perverse
incentive for employers to fire employees who might bring claims” under
Title VII” (Robinson v. Shell Oil Company).
During my research I selected a variation of prior cases to
review as examples. The cases selected
were Davis v. Board of County Commissioners
of Dona County, Equal Employment
Opportunity Commission, Amicus
Curiae, v. Shell Oil Company, Jerner
v. Allstate Insurance Company, and Lewis
v. Equitable Life Assurance Society of the United States. These cases offered a broad scope of what can
happen when a company tries to defame a person that is being reviewed for
employment by another company. The case
of Davis v. Board of County Commissioners
of Dona County was chosen to show that a government entity is allowed to be
sued and can be found liable for damages in cases when the actions are not in
line with policies to have future employers contact the central hiring
authorities like a human resources department not the direct supervisors or
mangers of the perspective employee in question. The faults and damages committed in the case
were direct results of the actions of a supervisor that managed an individual
and resulted in the sexual harassment and sexual assault of a patient that was
in a psychiatric ward in New Mexico. The
former employee had letters from the management that said he was a trustable
person with no immediate wrong doings in principle to his former job. He started with harassment of a patient and
over a period of a few weeks moved it to sexual assault and abuse. The court found for the plaintiff in New
Mexico’s Court of Appeals and overturned a decision by a lower court (Davis v.
Board of County Commissioners of Dona County).
The third and final employee is a regular violator of the
establish rules of Stuff Mart and has disciplinary actions taken against the
employee while working for Stuff Mart.
This is an employee that provides the most difficult of challenges when
talking to a future potential employer because of the variation of rules from
company to company. Many corporations
and companies have similar rules, but they can also differ in many areas. The employee may have violated the dress
code, showed up late to work five minutes six times in a one month period, or
disagreed with the hours that they were working and went to higher level
management to have a change in the schedule which circumvents the leadership in
Stuff Mart and may have had to be written up for that action. Human resource departments need to exercise
great caution when it comes to derogatory write ups, especially if they are for
violations of company policies that are not related to nefarious charges that
can have criminal impacts on a person. A
person may be a poor fit for one company, but turn into the employee of the
year for another employer. Undermining
the abilities of a person because they violate company policies that are not
criminal in nature can lead to a defamation lawsuit and cost Stuff Mart money
and time for the simple slip of a tongue.
The second employee that has displayed numerous outburst,
yelled at customers, raised the fist in anger, and seems in need of anger
management needs to be approached with only what is written and can be released
if questions from a future employer come to pass. The human resource department must depend on
sound judgement and tactful diligence when speaking about an unruly former
worker. The written reviews, derogatory
write ups, or anything else that was retained about the employee doesn’t need
to be shared unless there were agreements signed that the information could be
shared with potential future employees.
An employer needs to ensure that legal reviews anything that has been
written and might be possibly shared with other companies. The sharing of information can also be
related to what type of job the former employee is applying for. If the employee is going from a customer
service type job to one that is in a warehouse and has no customer interactions
the employee might not have anger issues similar to the ones displayed when
they worked at Stuff Mart.
The first employee is an alcoholic. Stuff Mart’s Human Resources needs to make
sure that when asked about previous employment the questions that they answer relay
information that was relevant to the job that the employee did while working at
Stuff Mart. If the employee has an
alcohol problem they cannot divulge the information unless the employee had a
DUI and accident while working for the company.
This would have public records made available and be allowed information
if it related to the purpose of driving a company vehicle. They may wish to avoid informing the
potential employer if the employee was fired for showing to work intoxicated
unless there was an arrest of the employee at the area of work due to being
unruly and there is written evidence of a police report that is available
through public information. Answering
only specific questions and referring to the actual written accounts like
annual performance reviews would be best.
Stuff Mart’s Human Resources Department must ensure that
they are the people to talk to any future employer of the soon to be fired
employees to prevent slander or libel defamation lawsuits from impacting their
company. Another area that the
department must be prepared for is the way to address each of the employees
past when questioned about their previous positions at Stuff Mart.
Defamation is established when an employer or former
employer makes false statements against you in relation to the job performance
or reasons that you left the former employee.
If a successful case is proving against a company for defamation “you
may be awarded damages not only for your financial losses, but also for your
emotional distress. A winning party might even be awarded punitive damages, to
punish the employer for its wrongdoing” (Guerin). Stuff Mart must ensure that it is diligent in
documenting, relaying, and conveying all information in a fair and balanced way
to the current employees that will be fired and the future companies that will
call when the employees go to find jobs at other businesses. Future employers want to know that they are
making good decisions when hiring for their companies, but it cannot be at the
price of a bad decision from Stuff Mart’s Human Resources Department.
In relation to the Stuff Mart case, the concerns from their
human resources department is that of having defamation lawsuits brought
against the company if they disclose anything that cannot be proven if asked by
a future employer of the soon to be fired three employees. This would put a stain on Stuff Mart and
damage the image of the human resources department as a well-focused and able
team in choosing and maintaining quality employees for Stuff Mart.
Defamation isn’t a crime, but is considered a tort that
labels it as a civil wrong instead of a crime.
Defamation is a term used to describe a statement that can hurt or
damage a person’s reputation. Defamation
that is written is called libel and defamation that is spoken is called
slander. When a person believes that they have been defamed the ability to file
a civil lawsuit is allowed in the law and varies from state to state. To prove that you have been defamed in a
civil lawsuit you must be able to show that the statement has been published, is
false, injurious, or unprivileged against yourself. Defamation can come from something that was
written, someone speaking of you with contempt to injure your image, by drawing
a picture that portrays you in an unwelcoming fashion, or even a simple gesture
that means to harm you. When reviewing
the way in which you feel that you have been defamed it is best to remember
that a “written statement last longer than spoken statements, most courts,
juries, and insurance companies consider libel more harmful than slander” (Doskow).