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Employment & Labor Publications COMPELLED SELF-PUBLICATION DEFAMATION IN CONNECTICUT Does Connecticut recognize a cause of action for compelled self-publication defamation? The Second Circuit recently certified this question to the Connecticut Supreme Court in the pending case of Cwelinsky v. Mobil Chemical Co. The Court's decision will finally determine Connecticut's position on this emerging doctrine. In the meantime, employers and employees both have an interest in understanding the basics of compelled self-publication defamation. What Is Compelled Self-Publication Defamation? Compelled self-publication defamation is an emerging cause of action in the employment context. The doctrine imposes liability on employers who give defamatory reasons for terminating or disciplining an employee if circumstances then require the employee to communicate the defamatory reasons to third parties and such communication is reasonably foreseeable. A typical scenario is a job interview where an employee cannot explain her separation from prior employment without communicating the employer's false and defamatory reasons for terminating her. Consider the following example: D, a hospital, terminates P, a security guard, for allegedly mishandling a patient. P's termination letter states that he "displayed bad judgement and did not follow established procedures regarding restraint of a patient." P disputes the truth of the allegations. Subsequently, P applies for similar employment. When potential employers inquire into why P separated from his prior employment, P has no choice but to communicate D's reasons for terminating him. P subsequently sues D for self-publication defamation alleging that D's reasons for terminating him, as set forth in the letter, were false and defamatory, that P was strongly compelled to disclose D's reasons to potential employers and that it was reasonably foreseeable to D that P's job seeking would require him to communicate D's reasons to potential employers. In Gaudio v. Griffin Health Services Corp., the Connecticut Superior Court concluded that these allegations were sufficient to set forth a claim of self-publication defamation. If the Connecticut Supreme Court recognized this cause of action, employers will have to be extremely careful in disciplining and terminating employees and in the reasons they give for such actions. How Does Compelled Self-Publication Defamation Differ From Ordinary Defamation? A defamation action requires an unprivileged communication of false and defamatory statements which are 'actionable per se' or which result in special harm to another. Statements about an employee are 'defamatory per se' if they charge the employee with dishonesty, improper conduct or lack of skill or integrity in his occupation. Ordinarily, the false statement must be communicated to someone other than the employee. However, the doctrine of compelled self-publication defamation is an exception to this rule. Under this exception, the employee does not have to show that an employer communicated defamatory statements about the employee to others. Instead, the employee can state a cause of action for self-publication defamation by showing that circumstances forced the employee to repeat the employer's defamatory statements to others and that it was reasonably foreseeable to the employer that the employee would have to repeat the defamatory statements. Are There Any Defenses To Compelled Self-Publication Defamation? Employers have several defenses against defamation and compelled self-publication defamation: truth, consent and privilege. Truth is an absolute defense to any defamation claim. Thus, it is advisable for employers to document employee performance and fully investigate and document any claims against employees for improper conduct or dishonesty. Employee consent is another defense to defamation. In jurisdictions recognizing compelled self-publication defamation, an employee's voluntary communication of an employer's defamatory statements does not give rise to a cause of action. Instead, an employee must show that she had no reasonable alternative to communicating the defamatory statements. Of course, lying is not an acceptable alternative. An employer's privileged communications concerning an employee will not support an action for defamation or compelled self-publication defamation. For instance, an employer generally may communicate its reasons for an employee's termination or disciplinary action to persons, including the employee, with a legitimate interest in the information. However, employers must be careful to act in good faith. Malicious statements (ones which the employer knows to be false or communicates with 'reckless disregard as to the truth,') will expose an employer to liability for defamation and compelled self-publication defamation. Conclusion If the Connecticut Supreme Court recognizes a cause of action for compelled self-publication defamation, it is likely that employers will face increased liability for the manner in which they terminate or discipline their employees. In the interim, employers may wish to carefully evaluate communications to employees and others concerning employee performance, discipline or termination. |
