CONDUCT UNBECOMING: HOW TO AVOID …

1 HR ADVISORMARCH/APRIL 200520 CONDUCT unbecoming : HOW TO AVOID defamatory CONDUCT Arthur P. Murphy, Esq. and Quinn H. Vandenberg, just completed a comprehen-sive investigation of employeetheft of company funds, includinginterviews with several of the ac-cused thief s coworkers, deter-mined that he committed thecrime, locked him out of his office,terminated his employment andhad him escorted off the premisesby security. You just saved thecompany from a thief, right? Prob-ably, but you also may have ex-posed the company to a large dam-age award in a defamation byconduct lawsuit filed by the termi-nated , disciplining, sus-pending, and terminating employ-ees are part of the daily activities ofHR Professionals.

2 To accomplishthese tasks without severe reper-cussions to the company in theform of litigation, HR Profession-als should prepare themselves forthe ever-increasing legislative andjudicial oversight of the work-place, which includes training thecompany s managers and supervi-sors. One of the thorniest issuesfacing HR professionals in today scomplex workplace is defamation:defamation in the actual process ofterminating an employee, defama-tion in the rendering of negativereferences, defamation when disci-plining employees, or defamationin the investigation of most HR professionals,learning how to AVOID making def-amatory statements and trainingthe company s managers and su-pervisors have been critical com-ponents of his or her job.

3 Whiledefamation typically takes the formof oral or written statements, inthe last few years, an increasinglycommon cause of action broughtby terminated employees againsttheir former employers is defama-tion based upon the employer sconduct. In particular, HR profes-sionals and those who typically areresponsible for investigating prob-lems in the workplace should alsobe aware of the potential for thecompany s CONDUCT toward thesuspected employee to form thebasis of a claim of defamation A recent trend amongststate courts has been to find thatmere CONDUCT alone, even absentdefamatory oral or written state-ments, could support a claim WHAT IS DEFAMATION?

4 In general, defamation is a causeof action that attempts to com-pensate a plaintiff, , disciplinedor terminated employee, from in-jurious statements to his or herreputation. Generally, a disci-plined or terminated employeemust show he following in orderto prove that his or her employerdefamed him or her: (a) a falseand defamatory statement con-cerning another; (b) an unprivi-leged publication to a third party;(c) fault amounting at least tonegligence on the part of the pub-lisher; and (d) either actionabilityof the statement irrespective ofspecial harm or the existence ofspecial harm caused by the publi-Arthur P. Murphy is the managing partnerof Murphy, Hesse, Toomey & Lehane,LLP, a law firm in Massachusetts special-izing in representing management in laborand employment H.

5 Vandenberg is an associate atMurphy, Hesse, Toomey & Lehane,LLP, who emphasizes in labor and em-ployment as well as general litigation, busi-ness law, and corporate governance. 2005 Thomson/West. This publication was created to provide you with accurate and authoritative information concerning the sub-ject matter covered, however it may not necessarily have been prepared by persons licensed to practice law in a particular are not engaged in rendering legal or other professional advice, and this publication is not a substitute for the adviceof an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other authorization to photocopy, please contact the Copyright Clearance Center at 222 Rosewood Drive, Danvers, MA 01923, USA(978) 750-8400; fax (978) 646-8600 or West's Copyright Services at 610 Opperman Drive, Eagan, MN 55123, fax (651) outline the specific material involved, the number of copies you wish to distribute and the purpose or format of the unbecoming : HOW TO AVOID defamatory CONDUCT HR ADVISORMARCH/APRIL 200521cation.

6 3 This means that to es-tablish a claim for defamation, aformer or disciplined employeemust demonstrate that the em-ployer communicated a statementabout the employee to a thirdperson (publication)4 that couldbe damaging to the employee order to prevail in his or herdefamation suit, the employeemust prove that the communica-tion is capable of a defamatorymeaning and that the communi-cation was understood in this def-amatory sense by the order for a communication tohave a defamatory meaning, theemployee must show that thecommunication impugned theemployee s reputation. To under-stand what types of CONDUCT resultin actionable and defamatory con-duct, it is essential to understandthat communication has beenused to denote the fact that oneperson has brought an idea to theperception of another.

7 6 Addi-tionally, communication can beunderstood as written, spoken,or otherwise as long as the recip-ient understands what it is tryingto In order to establishthe defamatory meaning requiredto prove defamation, courts typi-cally require that the plaintiffshow that a third person (possiblya coworker) understood the sig-nificance of the CONDUCT as defa-matory, , injurious to the em-ployee s the employees can show theabove elements, then the employ-er can still prevail in the case if itcan demonstrate the truth of thestatement (which is a defense todefamation so long as the truestatement is not misleading), orshow that it obtained the employ-ee s consent (which typically in-volves defamatory references),9 orestablish that it was privileged inmaking the statement, , that itmade the statement for a legitimatebusiness reason to a person or per-sons with a legitimate business rea-son for receiving such WHAT TYPES OF COMMUNICATIONS RESULT IN ACTIONABLE CONDUCT ?

8 Any CONDUCT that could imputeincompetence, stupidity, unwor-thiness of continued employ-ment, or dishonesty to the em-ployee might be Reviewing recentcases in several state courts indi-cates that defamatory conductmay include the way in which anemployee is terminated during anon-going investigation12 or theway in which an employee is es-corted around a building during Courts also havefound that when an employee wasgiven a polygraph test and thendischarged, the employer s con-duct gave other employees the be-lief that the discharged employeehad engaged in wrongful Other cases addressingwhether an employer s conductcould constitute defamation in-clude the following.

9 Searching orpacking up an employee s office,15deactivation of a key card,16 inter-rogations or drug tests witnessedby other employees, and demo-tions or Althougheach case dealing with defamationby CONDUCT is fact-specific, thepurpose of this article is to alertHR professionals to certain actionsthat could lead to possible defama-tion by CONDUCT suits if coworkersobserve the employer s actions andconclude from these actions thatthe disciplined or terminated em-ployee had done something dis-graceful or following lessons derivedfrom the reported cases may helpHR professionals minimize thepossibility of an employee bringinga successful defamation by In addition to understandingthe lessons that follow, one of thefirst steps that HR professionalsshould take is to determine wheth-er their state courts recognize def-amation by CONDUCT .

10 While somestates including Massachusetts,Maryland, Pennsylvania, and Wis-consin have shown a willingness toadapt their states defamation lawto non-verbal CONDUCT , many oth-er states, including New Jersey andMinnesota, have explicitly rejecteda cause of action based upon defa-matory CONDUCT . Moreover, HRprofessionals should be aware thatsome states that have previouslyavoided deciding whether to rec-ognize a specific cause of action fordefamatory CONDUCT are now ad-dressing the LESSONS FOR HR PROFESSIONALSL esson One: HR Professionalsshould always plan and prepare be-fore taking any action concerninginvestigations, suspensions, disci-pline, and terminations.