Backfired Firings – Do’s and Don’ts to avoid being sued for libel, slander and defamation.
The discharge that would have gone smoothly can turn into a nightmare if you say the wrong things to the wrong people about why you did what you did.
Obviously, certain people need to know that the discharge has occurred. This group of people may include fellow employees as well as third parties like personnel at customers and suppliers. The real question is what information do you provide beyond saying the person is no longer with the organization. Most often this issue arises at points of contact from prospective future employers.
Clearly, all employers seek to avoid being sued for wrongful termination. To avoid being sued for libel, slander and defamation, here are some Do’s and Don’ts:
- Be certain you have conducted a thorough investigation and have the facts about the reasons for discharge.
- When discussing the termination with others be factual. Do not characterize the circumstances. A statement that “staff turnover in his department was 25% over the last year” is better than “he couldn’t get along with anyone.”
- Personnel file contents should be limited to factually accurate statements.
- Tell only people who need to know the details/reasons for the discharge.
- Avoid making an example of the fired employee. Even though you believe you have a widespread theft problem, you do not need to tell everyone that you caught a thief stealing. Let the discharge itself do the talking.
- Before you initiate criminal prosecution, be careful about what you turn over to the prosecutor’s office. It should be completely accurate and provable.
- Do not disclose to anyone information that you acquire on a confidential basis. No one needs to know that an employee failed a drug screening test.
- Understand the impact that disclosure will have on the discharged employee. Do you really want or need to brand someone as having engaged in sexual harassment?Remember that juries will sympathize with the employee. The words “company,” “employer” and “corporation” are appealing targets when used in records that may one day be disclosed in litigation.
