Are employer's statements protected from a defamation claim under the qualified privilege.
Second, you will need to determine if the employer's statements are protected under this defense, which will negate a defamation action. In general, to maintain a defamation action, a person must show that the factual information was false, that it was published to a third party, that there was harm on account of the release of this false information, and that the statement was made without adequate research into the truth or falsity of the statement. Except for per se defamation (mentioned below), the person would also have to show damages on account of the harm. Employers, however, have a qualified privilege defense regarding alleged defamation claims brought by employees; an employer is free to make a statement about the activities of its employees arising out of their employment and concerning matters of common business interest -- even if the employer is proved wrong about his or her suspicion about the employee's alleged illegal conduct. The employee may defeat this protection by proving that the employer made the statement out of actual malice towards the employee. To show malice, the employee must establish that the employer knew that the statement was false or with acted with reckless disregard of its truth or falsity. Also, the employer's qualified privilege defense does not shield him or her from per se defamation. This form of defamation deals with bold statements that on their face are false and defamatory, such as the employee is a thief (or has engaged in other criminal conduct), has a loathsome disease, has an immoral character among others. It is unnecessary for an employee who establishes a per se form of defamation to prove damages.
Is the employer abusing its qualified privilege and/or otherwise acting outside of its protection?
Third, if according to the above, you find that the employer is abusing its qualified privilege and/or otherwise acting outside of its protection, Virginia has a statute that prevents employers from interfering with an employee's attempt to secure employment. Virginia Code section 40.1-27 Preventing employment by others of former employee, provides: "No person doing business in the Commonwealth, or any agent or attorney of such person after having discharged any employee from the service of such person or after any employee shall have voluntarily left the service of such person shall willfully and maliciously prevent or attempt to prevent by word or writing, directly or indirectly, such discharged employee or such employee who has voluntarily left from obtaining employment with any other person. For violation of this section the offender shall be guilty of a misdemeanor and shall, on conviction thereof, be fined not less than $100 nor more than $500. But this section shall not be construed as prohibiting any person from giving on application for any other person a truthful statement concerning the character, industry and ability of such person who has voluntarily left." This provision can be useful to you in preventing false information from being disseminated about you in addition to maintaining a successful defamation claim. Keep in mind that Virginia has a one year statute of limitations in which to bring a defamation action.
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