The theory of “compelled self-defamation” is generally raised where there has been an employment relationship. Although it may be argued in some other jurisdictions, it is not accepted by courts in Florida.
If the theory were allowed, it could potentially open floodgates of lawsuits against former employers. Countless former employees disagree with their employer’s “reasoning” for firing them, and many, angry over the termination, are motivated to litigate. Under the theory of compelled self-defamation, those fired employees might have legal reason to file suit.
In Florida, however, defamation (libel or slander), requires certain elements: (1) the defendant published a false statement (2) about the plaintiff (3) to a third party and (4) that the falsity of the statement caused injury to the plaintiff. Valencia v. Citibank Intern., 728 So. 2d 330 (Fla. 3d DCA 1999) (citing Seropian v. Forman, 652 So.2d 490 (Fla. 4th DCA 1995)). Integral among those elements is the first — publication — which requires that the defamatory statement be conveyed to a third person. In other words, someone else has to hear it.
In Valencia, a terminated employee asked the Fourth District Court of Appeal to recognize the theory of “compelled self-defamation.” Ms. Valencia’s employer had terminated her for reasons she said were false and had therefore caused her to essentially defame herself by being compelled to disclose those false reasons to prospective employers. Hence the name compelled self-defamation, which the Court described as:
Under the doctrine of compelled self-defamation the publication to a third person is, in essence, eliminated. Under the doctrine, a defendant will be liable for alleged defamatory statements she or he made to the plaintiff in private if the plaintiff is “compelled” to repeat or republish the alleged defamatory statements to a third party.
Id. (citing Lewis v. Equitable Life Assurance Society of the U.S., 389 N.W.2d 876 (Minn.1986). The Fourth District Court of Appeals promptly declined to allow this tort, which, it explained, would essentially create an exception to the “publication” element of standard defamation.
Other options & bad references
So what can a terminated employee do if his or her employer fires them for false reasons? Hopefully, the employer will not relay the information to a third party and instead maintain a neutral reference. If the employer does, however, relay false information, such could be a case of standard defamation, because the publication element would be met. (This does not mean that if he relays false statements at a hearing for unemployment compensation that the employee could sue; statements made during judicial proceedings such as those hearings are almost always afforded privilege from defamation lawsuits.)
In most cases, employees terminated for false reasons in Florida have little recourse. Even if they did have a legal theory to sue their former employer, lawsuits are expensive, and the newly fired employee, now with no or little income, will likely have very little money to aplly toward litigation.
Nevertheless, the elimination of negative references can be essential for a job-seeker. One way to learn what your employer is saying about you — before you even apply for new jobs — is to hire a reference-checking company, such as checkmyreference.com, who will find out for you. If the reference is unfairly bad, one option is to have an attorney write a demand letter to the former employer. No, this will not get you financial rewards, but it will hopefully stop the bad behavior – nipping it in the bud — so you can move forward with your life and get the job you deserve.
If you have been terminated with a negative job reference and would like a demand letter sent to your former employer, contact us for more information.
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