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Employee Defamation in New York

In New York, defamation is a false statement which exposes a person to public contempt, ridicule or disgrace or causes others to think badly of the person defamed. 

In an employment context, defamation occurs when an employer makes a defamatory statement about an employee that causes harm to the employee’s career.  Your employer may have defamed you if a supervisor made a false statement that implied that you:

  • were insubordinate
  • embezzled funds
  • were dishonest
  • were irresponsible, incompetent or lazy
  • committed a crime
  • had mental problems
  • had a drug or alcohol problem

In order for an employee to prove defamation, it must be established that a false statement was made by the employer and that it either caused special harm or constituted defamation per se.

Special harm is defined as a monetary loss caused by the injury to one’s reputation.  Defamation per se means that the statement itself was so damaging that monetary damages don’t have to be proven.  It occurs when a defamatory statement implies that a person is guilty of a criminal activity, has an offensive disease, is unchaste, is a homosexual, or when the false statement tends to injure the defamed person’s trade, occupation or business.

There are two types of defamation: libel and slander.  Libel occurs when false statements are written or printed, while slander occurs when malicious or scandalous words are spoken.

There are a number of defenses to employee defamation claims.  One defense available to an employer applies when an honest opinion is expressed about an employee, even if the opinion is not favorable.  The statement of the honest opinion is constitutionally protected and is therefore not considered to be defamatory.

Privilege is another defense available to employers.  In New York, there are two types of privilege: qualified and absolute.

In order to encourage open communications at work, a qualified privilege applies to statements made to employees and others by employers and co-workers regarding matters of a common business interest.  If a qualified privilege applies, an employee must prove that the employer’s statement was made with malice.

In other cases, statements made by an employer are protected by an absolute privilege for public policy reasons, even if the statements were made with malice.  Absolute privilege applies to employer communications made in a number of contexts, including:

  • statements made during Division of Human Rights proceedings
  • statements made on unemployment applications
  • statements produced in response to a subpoena.

The damages that may be recovered on a defamation claim in New York include compensation for actual injuries arising from the defamatory statement.  Punitive damages, which are awarded as a form of punishment, may also be awarded in some cases.

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