Serving Employees And Employers

Advising Employees And Employers Throughout The Bay Area

Last updated on February 22, 2021

Confidentiality, privacy and the freedom from having negative statements made about one is expected in any workplace. Violations of privacy and the making of negative statements both may have the effect of damaging an individual’s reputation, career and peace of mind. Wondering about your situation and what the specifics may mean? Read on.

Are all negative statements made about an employee actionable?

Only false statements made to others about an employee are actionable. The statement must be false, nonprivileged, made to persons other than the employee and that either (in the case of a written statement) exposes the individual to hatred, contempt, ridicule, humiliation or which causes the individual to be shunned or avoided or has a tendency to injure him in his occupation; or (in the case of a verbal statement) it charges the individual with a crime, loathsome disease, impotence or want of chastity, or tends to directly injure the employee in his occupation.

Can employers be held liable for the defamatory statements made by their employees?

An employer may be held liable for the defamatory statements regarding an employee made by the employee’s supervisors, coworkers and managers as long as the statement is made in the course and scope of the employment. While some statements between an employee’s coworkers and upper management or prospective employers may be considered privileged communications in that they are made to advance or protect the interests of the person making the statement or the person to whom the statement is made, the privilege is lost if the statement is made with malice. Malice for these purposes is any statement that is motivated by hatred or ill will toward the employee, or that is made with reckless disregard of the truth.

What are the legally recognized privacy interests that form a claim for invasion of privacy?

Privacy interests are generally of two classes: informational privacy and autonomy privacy. The first class protects the dissemination or misuse of an employee’s sensitive and confidential information, such as employment records and medical conditions. For example, an employee who is HIV positive may have a claim against his coworker who spreads that information among all of the employee’s coworkers causing many to harass the employee at work. Autonomy privacy protects individuals making personal decisions or conducting personal activities without observation. An invasion of privacy claim under the second class may arise where employees are required to undergo visually monitored urinalysis testing at their place of employment.

In California, privacy interests also include the freedom of intimate association with others, such as family and marriage, and the freedom of expressive association, whether political, social or cultural.

Are all invasions into private matters actionable?

In order to be actionable, the individual must have a reasonable expectation of privacy regarding the interest invaded, and the invasion must be serious and must result in harm or loss to the individual. An individual’s reasonable expectation of privacy is measured objectively against existing community norms, including the customs of fellow citizens and the employee’s occupation.

Still Have Questions? Speak With An Attorney Today.

If you are an employer who has been charged with slandering a current or former employee, if you are an employee who has been unable to obtain other employment because of negative false statements made by your employer or its employees, or if you are an employee who has experienced backlash by coworkers because of widely disseminated private information about you, call the DeVito Law Group today for a consultation: 415-888-8215.