CHANGES TO THE LAW OF DEFAMATION IN THE CONTEXT OF EMPLOYEE REFERENCES.

Providing references regarding a current or former employee can be treacherous for any employer. In recent years, employees dissatisfied with the information provided have sought their pound of flesh by suing the former employer under common law defamation. In general terms, Oklahoma law defines defamation as a false communication that “tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”

Apparent from this definition is the fact that truth is an absolute defense to a claim of defamation. However, in the context of statements made in providing an employee reference, the truth is often difficult to establish. This is so because, ordinarily, the information provided is in the form of opinion rather than a statement of fact. Therefore, employers have become ready targets for those former employees that don’t like the references given.

Until recently, an employer’s defense to a former employee’s defamation action was based on common law. At common law, truth was an absolute defense and employers enjoyed a qualified privilege concerning employee references. This qualified privilege was dependent upon the employer’s ability to show that: i) the statements were made in good faith; ii) they were made to uphold an interest or duty of the employer; iii) they were limited in their scope to the purpose for which they were being made; iv) they were made upon a proper occasion; and v) they were made in a proper manner and to proper parties only.

These two common law defenses have been recently absorbed into Oklahoma statutory law by the passage of House Bill No. 1462 (signed into law June 9, 1995) (“Statute”). Under the Statute, an employer enjoys a presumption that disclosure of information concerning a current or former employee’s job performance to a prospective employer was made in good faith, so long as the disclosure is made either: i) upon request of the prospective employer and with the consent of the current or former employee, or ii) upon request of the current or former employee. Though the Statute expressly provides that the employer’s presumption of good faith can be lost upon a showing by the current or former employee that: i) the disclosure was false and the employer knew of the falsity, or ii) the employer acted with malice (e.g. ill-will or express design to cause harm) or reckless disregard for the truth (e.g. failure to make an adequate investigation) in making the disclosure, it appears implicit in the statute that the presumption might never arise unless the requisite “consent” and “requests” are obtained by the employer prior to disclosure. Unfortunately, the statute is far from clear in this regard.

The Statute is also unclear in other crucial respects. For example, what form must the required “consent” and “requests” take to give rise to the presumption; may the “consent” and “requests” be obtained as part of the job application or must they be obtained nearer in time to providing the information; will a single generic “consent” or “request” suffice over multiple specific “consents” or “requests”. All these questions remain to be answered through the trial and error of employers and former employees. For present purposes, the most conservative approach may be the safest.

Steven K. Metcalf

This Newsletter addresses recent items of interest in various areas pertaining to the construction industry. While the Newsletter may alert you to potential problems or changes in the law, it does not attempt to offer solutions, opinions, or advice concerning specific problems. Such legal advice or opinion can only be given by an attorney after careful consideration of the facts unique to a given situation. Inquiries concerning this Newsletter or its subject matter should be directed to its contributors, Steven K. Metcalf, Esq. at (918) 430-3703 or William H. Spitler, Esq. at (918) 430-3704.