Things to Consider for Defamation Action Based on What a Wisconsin Employer Said

Speak no evil, hear no evil, see no evil...
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Commonly, I get calls  from workers who are interested in a defamation action, based on false statements an employer made.  Defamation is a State-law claim, and I have represented persons for defamation claims under Wisconsin law.

If you are contemplating a defamation action against an employer, consider the things below.  (Please note this post does not provide legal advice; if you want legal advice, you must consult about your specific situation with an attorney who is licensed in the State in which the allegedly defamatory statements were made).

  • Are you within the legal deadline period (and if in Wisconsin, did the employer make the false statement within the last 2 years)?

Wisconsin has a two-year statute of limitations (deadline period) for a defamation claim.  If you are in another State, that State may have a different statute of limitations period for defamation.

You should talk to an attorney about when the employer’s statements were made, to make sure you have time under applicable statutes of limitations to pursue defamation claims or any other legal claims that may apply.

  • Did the employer make a demonstrably false statement?

In order to pursue a defamation action against an employer, you must show the employer made a false statement.

If an employer says you embezzled $100,000 and you didn’t, then that type of accusation is tangible and something that could realistically be investigated and proved false.  However, if the employer said something more subjective (e.g. that you are a “poor worker”), then that sort of intangible comment (e.g. “poor”) is harder to address and prove false.

So, if you are interested in a potential defamation action, the first question you should ask yourself is whether the type of employer statement at issue is subjective, or is objectively quantifiable as true or false.

  • Can you prove the employer made the false statement?

Do you have proof — a document, recording, written statement from a witness who heard the statement, etc.– that proves the employer actually made the false statement?  If you are banking on assumptions alone (e.g. “my employer MUST be making false statements about me to other employers, because that’s the kind of people they are, and when I  apply to other employers no one offers me work”), that will probably not be enough to win a defamation claim.

If you do not have proof of a false statement, it is often the case that the employer will deny making the statement or will say they can’t remember.  If you intend on pursuing litigation for a defamation matter, you should have proof in-hand.

  • Has the false statement mattered– has it cost you a specific opportunity or wages you can identify?

Can you prove you lost a specific opportunity and/or monies, e.g. you lost a new job because of your old employer’s false statements?  If you lost tangible opportunities and monies due to a false statement, then it becomes more feasible to consider a legal action.

  • What was the context in which the statement was made– was it while you were a current or former employee? While you were in a legal proceeding?

If an employer makes a false statement in certain contexts– for example, if the false statement is made during legal proceedings (e.g. during a deposition), or in a public forum– then there are certain legal immunities that may apply and make a defamation action difficult even if you can prove a false statement was made.

As another example, if an employer makes a false statement about a current employee as opposed to a former employee, then a defamation claim could be preempted (blocked) by workers compensation law, depending on the situation.

In short, the context of the statement matters.  Talk to an employee rights attorney licensed in your State about the specific circumstances under which the false statement was made.  (You can search for such an employee rights attorney, by-State, at this website).

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Filed under Employee Tip - Considering a Legal Action, Employee Tip - Problems at Job

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