There is an interesting defamation case that has been filed in Texas. Dakota Meyer, a former U.S. Marine who received the Medal of Honor is alleging that BAE Systems OASYS defamed him to a prospective employer by saying that he has a drinking problem, poor work habits, and is mentally or emotionally unstable.

Meyer worked for the defense contractor after his service, including his heroic rescue as a young corporal of 36 fellow soldiers by driving his humvee into a fire fight and killing at least eight insurgents. He claims that he was defamed and harassed after he complained about the company sending high-tech equipment to Pakistan — noting that our own troops often lack the equipment and find insurgents who are better equipped then they are in the field. He alleges that the company responded by ridiculing him and his service, including his famous rescue.

He says that a BAE Systems manager told a prospective employer that Meyer “was mentally unstable, that Sgt. Meyer was not performing BAE tasks assigned and that Sgt. Meyer had a problem related to drinking in a social setting.” The supervisor, Bobby McCreight, is named in the lawsuit and is still employed by BAE.

Meyer said he learned about the bad mouthing when he tried to obtain a job at a former employer, San Diego-based Ausgar Technologies.

Ironically, today we are covering this very issue of defamation as part of our torts class. These cases often arise either out of comments made to fellow employees or prospect employers. The former situation often involves the question of “intracorporate privilege.” That privilege treats employees in a company as essentially a single entity. Thus, there is no publication when one part of the company speaks to another. However, this privilege only exists in the scope of employment, so employees spreading rumors or malicious accounts are often denied the privilege. It protects employees working in regular channels or as part of their positions. This can include reporting concerns to a designate official to handling unstable or dangerous employees. For example in Doe v. Gonzaga Univ., 143 Wn.2d 687, 24 P.3d 390, 397 (Wash. 2001), rev’d on other grounds, 536 U.S. 273, 153 L. Ed. 2d 309, 122 S. Ct. 2268 (2002), the privilege was rejected because “it could be reasonably found that Julia Lynch was not acting in the ordinary course of her work as an office assistant when she told another student that John Doe has injured Jane Doe during a sexual relationship.”

The issue of speaking to outsiders can raise a different matter. A former or current employers is allowed to share their opinion of an employee, including their view that the employee was lacking skills or discipline. See Zerr v. Johnson, 894 F.Supp. 372 (D. Colo. 1995) (rejecting a defamation suit against a school principal). However, to the extent that such views are based on suggested or stated facts, it can become defamation if untrue. (Truth is a defense to defamation). One issue that can bar such lawsuit is consent. Some companies have employees sign a release authorizing the former employer to provide references. There is also a qualified privilege in most states where (a) the employer believed in good faith that the information is true, (b) the information served a legitimate business purpose, and (c) it was provided only to an appropriate person who had a legitimate business interest in receiving the information.

Companies and universities often post these rules and the relevant state law. Here is Arizona State University’s posting for example:

ARS §23-1361 provides that it is not unlawful for an employer to provide to a requesting employer information concerning a person’s education, training, experience, qualifications, job performance, professional conduct or the reason for termination to be used for the purpose of evaluating the person for employment. The information may be provided orally or may be provided in writing. A copy of any written communication must be sent to the employee’s last known address; however, a copy of any correspondence need not be sent to the employee if the employee is seeking another job within Arizona State University, regardless of campus.

Qualified Immunity

Although it is difficult to give a precise definition of defamation (because courts frequently describe it in different terms), generally a defamatory statement is one which tends to injure a person’s reputation or to diminish their esteem, respect or good will. Defamation does not include what is generally called pure opinion. For example, a statement that the employee is truly obnoxious has been held to be not defamatory. Also, a statement that one would not rehire an employee has also been held to be not defamatory. The term “reckless disregard” means that the communicator entertains serious doubts as to the truth of the information provided to the third party.

To summarize, an employer is immune from civil liability in connection with providing information to a prospective employer unless all of the following are found to exist:

1. The information is false;
2. The information tends to bring the employee into disrepute, contempt or ridicule;
3. The information is acted upon to the harm of the person by the prospective employer; and
4. The communicator knows the information is false or entertains serious doubts about its truth.

Absolute Privilege

The statute establishes an absolute privilege for communications concerning employees made by an employer to a governmental body or agency and which are required by law or which are furnished pursuant to written rules or policies of the governmental body or agency. Under an absolute privilege, there is no liability for a defamatory statement under any circumstances.

Notably, companies are under pressure to check all references since they can be sued for negligent hiring if there was something in an employee’s past that would have alerted the company to the problem or risk.

In the case of Meyer, he is alleging that there was no drinking or other problems and that this was the result of malice. Malice is often treated as an exception to privileges under defamation cases. It is the type of case that is usually difficult to resolve before the completion of discovery and all facts are read in favor of Meyer if BAE moves to dismiss. He is alleging both slander and tortious interference with contract.

Here is the complaint: Meyer complaint

Source: BBC