If an employer terminates an employee due to false allegations of misconduct, a defamation claim might be part of the legal action against the employer. For instance, if an employer fires an employee for sexual harassment based on a false accusation from a co-worker or supervisor, and there is adequate evidence to prove the accusation is false, there may be grounds to file defamation claims against both the co-worker and the employer.
In these cases, the employer and co-worker may raise a qualified privilege as a defense against a defamation claim, arguing that the reporting of wrongdoing (i.e., sexual harassment) —although defamatory— is legally protected, and, therefore, the trial court should dismiss the defamation claim.
In New Hampshire, the application of the qualified privilege is complex. Understanding how this defense works and how it is applied in employment-related defamation cases is critical for both employers and employees involved in such disputes. This article will explore the concept of defamation in the employment context, the legal defense of qualified privilege, the burden of proof in these cases, and key New Hampshire case law that has shaped the application of qualified privilege.
I. Defamation in the Employment Context
Defamation occurs when a person or entity makes a false statement about another that injures that person's reputation or standing in the community. In the workplace context, defamation claims often arise when an employer or co-worker makes false accusations about an employee that harm their professional reputation. These accusations can lead to terminations, demotions, or other adverse employment actions, further exacerbating the harm caused.
For an employee to succeed in a defamation claim, they must typically prove the following elements:
A false and defamatory statement: The statement must be false, as truth is a defense to defamation. The statement must also be defamatory, meaning it would harm the employee's reputation, exposing them to public hatred, contempt, or ridicule.
Publication of the statement: The statement must be communicated to a third party, such as a colleague, a customer, or the public.
Fault: In employment defamation claims, the employee must prove that the employer was at fault for making the defamatory statement. This could involve showing negligence or malice, depending on the circumstances.
Harm to reputation: The employee must demonstrate that the defamatory statement resulted in harm, such as a loss of employment, damage to personal relationships, or a tarnished reputation. If the employer or employee acted with malice or ill will, damage to reputation is presumed.
Defamation claims can be particularly tricky in the employment context because employers and co-workers often need to communicate certain information about employees. For instance, an employer may need to share information about an employee's performance with other managers or HR personnel. A co-worker may need to report to a supervisor information about an employee's conduct, including but not limited to violations of the law like harassment and discrimination. If the communication is false or reckless, it can lead to a defamation claim.
II. The Defense of Qualified Privilege
Employers facing defamation claims in the workplace may invoke the qualified privilege as a defense. This defense allows certain statements that would otherwise be defamatory to be protected from liability under specific circumstances. In the context of employment, a qualified privilege may apply when an employer or employee makes a statement about an employee that is communicated to someone with a legitimate legal interest in the information, such as another employee, a supervisor, or a regulatory authority.
Examples:
An employee reports sexual harassment by a coworker. The internal HR team, executives, and external investigators have a legitimate interest in understanding the facts surrounding the harassment complaint. The co-worker's statements, even if later found to be untrue, may be protected by qualified privilege because they were made in the course of a lawful investigation and communicated to individuals with a direct role in addressing the issue.
If the co-worker's statement are unfounded or exaggerated based on the results of the investigation, such a statement may be protected by qualified privilege as long as the co-worker acts in good faith, for a justifiable purpose to address potential workplace misconduct.
In the context of a performance review, if the manager communicates to HR that an employee has demonstrated poor work performance or violated company policies, this communication could be covered by qualified privilege, provided the manager's statements are made in good faith based on factual information (e.g., performance reviews, documented incidents) and for a legitimate purpose (such as determining the employee’s future within the company).
In the context of workplace safety, if a supervisor makes a statement to OSHA reporting that an employee repeatedly violated safety protocols, this statement is protected by qualified privilege if made in good faith and with reasonable grounds to believe the statement is true. The purpose of the statement is to comply with regulatory obligations to ensure a safe workplace.
A. Application of Qualified Privilege in Employment Situations
In the employment context, qualified privilege often applies when employers or co-workers communicate information about an employee to another party who has a legitimate interest in the matter. For instance, employers may be required to disclose information to potential future employers or government agencies during an investigation or regulatory process.
“It is true that an occasion is conditionally privileged when the circumstances induce a correct or reasonable belief that (a) facts exist which affect a sufficiently important interest of the publisher, and (b) the recipient's knowledge of the defamatory matter will be of service in the lawful protection of the interest.” Jones v. Walsh, 107 N.H. 379, 381 (1966). “However, to come within that privilege the defamatory communication must be made to a person whose knowledge of the defamatory matter because of his social or legal duty or his interest thereto is likely to prove useful in the protection of that interest.” Id.
A classic example of this is when an employee files a complaint alleging harassment, and the supervisor must communicate the allegations to HR personnel, legal advisors, or even external authorities. “[P]rotecting employees' complaints of sexual harassment to their employees with a qualified privilege represents a straightforward application” of Jones v. Walsh. Caouette v. OfficeMax, Inc., 352 F. Supp. 2d 134, 143 (D.N.H. 2005). The communication of these allegations, even if later determined to be false, may be protected by qualified privilege, as long as the statements are made in good faith, for a justifiable purpose. Chagnon v. Union-Leader Corp., 103 N.H. 426 (1961).
A. Legal Framework for Qualified Privilege in New Hampshire
New Hampshire recognizes a qualified privilege for statements that would otherwise be defamatory. The New Hampshire Supreme Court has defined a qualified privilege as follows:
A qualified privilege exists for otherwise defamatory statements if the facts, although untrue, were published on a lawful occasion, in good faith, for a justifiable purpose, and with a belief, founded on reasonable grounds of its truth, provided that the statements are not made with actual malice. Chagnon v. Union-Leader Corp., 103 N.H. 426 (1961).
This means that even if the reported violations made by an employer or employee are untrue and defamatory, they may still be protected under the qualified privilege defense if they meet the following conditions:
Lawful Occasion: The statement must be made in a context that is legally permissible. For example, statements made during an internal investigation into employee misconduct or made to regulatory authorities might be covered by the privilege.
Good Faith: The employer or co-worker must have acted in good faith, meaning they genuinely believed the information they were sharing was accurate and necessary for the situation.
Justifiable Purpose: The statement must serve a legitimate purpose, such as protecting the interests of the employer, co-worker, or the public. For instance, an employee may have a justifiable purpose in notifying a supervisor about potential sexual harassment by a co-worker.
Reasonable Grounds to Believe the Statement is True: The employer or co-worker must have reasonable grounds for believing the statement they made was true, even if it later turns out to be false.
III. Burden of Proof in Defamation Claims Involving Qualified Privilege
When an employer asserts a qualified privilege defense in a defamation case, the burden of proof is initially on the employer to establish the existence of the privilege.
In Duchesnaye v. Munro Enters., the New Hampshire Supreme Court explained the production burden identified Chagnon: “the burden to prove the existence of a conditional privilege [is] on the defendant.” Duchesnaye v. Munro Enters., 125 N.H. 244, 253 (1984).
Whether a qualified privilege applies in a particular case is a factual determination that should be made by the trier of fact—usually the jury. Pierson v. Hubbard, 147 N.H. 760, 764 (2002). If the employer successfully establishes that the qualified privilege applies, the burden then shifts to the employee (plaintiff) to prove that the employer acted with actual malice. Chagnon v. Union-Leader Corp., 103 N.H. 426 (1961). Actual malice is generally defined as knowledge that the statement was false or a reckless disregard for whether the statement was true or false. If the employee can successfully show malice, the qualified privilege will be defeated, and the employer will be held liable for defamation.
In 2010, I tried a defamation case before a jury and prevail. The defendant raised the qualified privilege and was unsuccessful. The matter was appealed to the New Hampshire Supreme Court where my client prevailed again. See attached opinion Albert J. Berthiaume & a. v. Andrew Swett.
V. Conditional Privilege and the Pleadings Stage
Although courts may consider the issue of qualified privilege at the pleading stage, it is not appropriate to decide the merits of the defense based solely on the pleadings. The New Hampshire court has ruled that a determination of the applicability of a conditional privilege requires the presentation of factual evidence, and it is not suitable for resolution through a motion to dismiss alone. Pickering v. Frink, 123 N.H. 326 (1983)
In Pickering, the plaintiff brought a libel action claiming that the defendants attempted to terminate his employment as fire chief by publishing false and defamatory statements against him. The defendants moved to dismiss the plaintiff's complaint on grounds that their speech was absolutely privileged because they spoke against the plaintiff through a petition addressed to a local governing body calling for the removal of a public officer. The trial court granted the defendants’ motion to dismiss on grounds that the defendants had an absolute privilege. On appeal, the plaintiff argued that the defendants had a conditional privilege. The Pickering Court agreed with the plaintiff and held that the defendants had a conditional privilege that afforded them more protection than the standard identified in Chagnon v. Union-Leader Co. See Pickering, 123 N.H. at 328 (holding that “once the defendants demonstrate that they were exercising their constitutional right to petition for the removal of the plaintiff from public office nothing short of proof by the plaintiff that the defendants actually knew the statements contained in the petition were false will suffice to justify holding them liable.”). The Pickering Court further explained that a determination of the applicability of a conditional privilege was a factual determination that “should be made, at the earliest, on a motion for summary judgment after the parties have had the opportunity to support or refute the allegations in the pleadings.” Pickering, 123 N.H. at 332.
Therefore, the employer raising the defense cannot move to dismiss the employee's defamation claim on the pleadings alone. The parties have to conduct discovery first.
VI. Conclusion
Defamation claims in the employment context can be complicated by the defense of qualified privilege, which can protect employers and employee from liability even when their statements about employees are defamatory. New Hampshire law recognizes a qualified privilege defense, but this defense is not automatic. Employers must first show that their statements were made in good faith and for a justifiable purpose. At the same time, employees who are the subject of defamatory statements must understand that the burden of proof can shift if the employer satisfies its initial burden. Employees must demonstrate that the employer acted with actual malice to defeat the privilege and prevail in their defamation claims. Actual malice is a higher burden of proof. Given that the fact finder (usually a jury) determines whether the conditional privilege is to be applied, it is important to carefully evaluate the facts of the case.
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