At times employees are confronted with bullying and boorish behavior of their bosses or co-workers. Such a work environment is bad for employee morale and, in turn, may decrease employee productivity and cause employee turnover as well as potential legal claims. Management should stop such bullying or boorish behavior. However, employees should understand that defamation legal claims against the persons making the disparaging remarks under New Hampshire law, have their limits. Generally, an employee would have to allege facts that show the person she accused made the derogatory remarks, did not exercise reasonable care in making them, that the comments were both false and factual and not a statement of opinion, and be able to show she is not barred under worker compensation law in bringing the claim against her co-employee. A statement of opinion could be actionable if it may reasonably be understood to imply the existence of a defamatory fact or basis for the opinion. For example, if an employee was to state to a co-worker that he does not trust the new guy, not only would the damages be likely negligible, it would probably be a statement of opinion plus would be covered under the worker compensation bar from suing co-employees if not an intentional misrepresentation. If a potential new employer of a former bookkeeper of a company spoke to the president of the former company for a job reference and the president stated he did not trust the former bookkeeper, that statement of opinion about the former employee may imply the president has specific reasons to believe the bookkeeper had embezzled from the company so that statement may be the basis for a defamation claim.
Defamation can also occur by innuendo as well as specific assertions. For example, there was a case in 1995 that discussed the defamatory nature of a television broadcast which suggested a man murdered his wife without actually accusing him of murder. Further, a case in 2017 addressed statements that a person filed prior lawsuits which, while true, implied the defamatory meaning that that person was litigious and filed frivolous lawsuits.
It is for those reasons that when employers provide job references for former employees they often choose to only provide dates of employment and job title. However, it is my experience that if a former employee of the company performed well at the company, even if she could not get a positive reference the Human Resource Department, she may very well be able to get a positive reference for a prospective employer from one or more of her bosses. Further, if part of her job involved customer sales or service, she could get references from satisfied customers.
For an employee who feels she was defamed by her boss or co-worker, she should seriously consider further possible damage to her reputation by filing a lawsuit, and, in particular, if the defense will be the statements made were true. If for example disparaging remarks such as “Watch your back with her” are claimed as defamatory in a lawsuit, it would invite the person accused of the defamation to present evidence of disparaged employee’s reputation which would justify why people who dealt with the person should, watch their back. Furthermore, a public lawsuit against a former employer or co-workers could inhibit the ability to find another job.
If may be more prudent to discuss with legal counsel strategies to react to disparaging remarks which could range from finding a new job and raising the issue in an exit interview or to reporting the misbehavior to that person’s boss or the Human Resource Department.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].