Fear of liability has caused many employers to refrain from giving references or reasons for terminating employees. Inadequate protection for employers under constitutional and tort law, unrestricted punitive awards, and the lack of a declaratory relief alternative threaten free expression in the workplace. This Note proposes that such inadequacies may be remedied by applying an enhanced definition of negligence and eliminating the conditional privilege in employer defamation cases. The enhanced negligence standard would reduce employer fear of strict liability, create a uniform standard of communication for employers to follow, and insure that liability clearly was established by the higher degree of proof and independent review procedures. Replacing the conditional privilege system with the enhanced negligence standard also would benefit employees by eliminating the more stringent malice requirement and simplifying defamation law. This Note further proposes eliminating punitive damage awards and adopting declaratory relief statutes to provide an efficient, less costly method of resolving defamation disputes. Declaratory relief would resolve the inequities of a negligence standard by providing relief for employees who cannot prove the requisite fault.
Employer Defamation: Reasons and Remedies for Declining References and Chilled Communications in the Workplace,
40 Hastings L.J. 687
Available at: https://repository.uchastings.edu/hastings_law_journal/vol40/iss3/5