November 01, 2004
Judicial acceptance of “compelled self-publication defamation” as a cause of action is far from unanimous. Most recently, the courts of Massachusetts and Connecticut joined the debate by declining to recognize the doctrine of compelled self-publication defamation and fell into line with the decisions of the highest courts of Alabama, Hawaii, Tennessee and Washington.3
The courts of New York also have not reached a consensus regarding whether the doctrine should be recognized under the law, or when it is recognized, how it may be applied. Thus, employers should take the risk of liability for compelled self-publication defamation into consideration with all terminations of employment, particularly those terminations involving employee misconduct or unsatisfactory performance.
In this article, we discuss the status of the doctrine of compelled self-publication defamation in New York and suggest precautionary measures employers can take to protect against such claims.
At common law, a plaintiff establishes a prima facie case of defamation by showing (1) a defamatory statement of fact, (2) regarding the plaintiff, (3) the publication of the statement to a third party, and (4) injury to the plaintiff.4 Usually, the defendant satisfies the publication element by demonstrating communication of the alleged defamatory statement to a third party. In some circumstances, the defamed plaintiff is the one who publishes the alleged defamatory statement; however, communication by the plaintiff of the defamatory statement generally does not satisfy the publication requirement and is not actionable.5
In Lewis v. Equitable Life Assurance Soc’y, 389 N.W.2d 876, 888 (Minn. 1986), the Minnesota Supreme Court recognized the theory of compelled self-publication as an exception to that rule. In Lewis, an employer had discharged the plaintiffs for “gross insubordination.” During subsequent job interviews, the plaintiffs were asked the reason for their departures from their previous jobs and in response, disclosed the “gross insubordination” rationale. Under these circumstances, the court found that the plaintiffs’ only two options were to tell prospective employers that they were discharged for “gross insubordination” or to lie. However, the court noted that “fabrication... is an unacceptable alternative.”6 Thus, the court held that the plaintiffs had been “compelled” to repeat the allegedly defamatory reason for their dismissals, even though the company neither published nor stated such reason to any of the plaintiffs’ prospective employers. The court found that the publication element of the defamation claim had been satisfied because, according to the court, it was foreseeable to the employer that the plaintiffs would have no reasonable means of avoiding republication of the allegedly defamatory statement to prospective employers. In fact, the office manager of the former employer admitted that it was foreseeable that the plaintiffs would be asked to reveal the reason for their discharge. Thus, the court stated that the plaintiffs had been compelled to repeat the allegedly defamatory statement. The court concluded that the resulting damages were fairly viewed as the direct result of the employer’s actions.
Taking a contrary position, the court in White v. Blue Cross and Blue Shield of Massachusetts Inc., 442 Mass. 64, 68 (2004) recently declined to adopt the doctrine of compelled self-publication, noting that such adoption would be “ill advised” and pointing to the doctrine’s unpredictable effect on at-will employment. In White, the plaintiff, a former employee of Blue Cross, was discharged for allegedly divulging the details of a confidential financial settlement. The plaintiff conceded that his former employer had not communicated the allegedly defamatory statements to any third party, but he asserted that he was compelled to state the reason behind his discharge and that such compulsion was reasonably foreseeable by Blue Cross. The Massachusetts court recognized that the situation of this plaintiff was similar to the plaintiff in Lewis, and that the former employee may have suffered harm because of the self-publication. However, the court also noted that the plaintiff had other alternative causes of action he could pursue. Such possible causes of action included bringing a defamation action against the alleged originator of the defamatory statement communicated to a third party.
No Consensus in New York
New York courts that have considered the doctrine of compelled self-publication defamation have not yet reached consensus regarding its recognition or its applicability. Noting that there is “scant law” on this issue, in Van-Go Transport Co., Inc. v. New York City Board of Education, 971 F. Supp. 90, 102, 104 (E.D.N.Y. 1997), Judge Trager stated that “it seems reasonable to assume that the New York Court of Appeals would adopt the doctrine in a form that allowed for liability where, such as in the instant case, there was a high degree of compulsion that required the reporting of the defamatory matter.”7
In Van-Go Transport Co., Inc., the defendant sent the plaintiffs, who were transportation companies, a letter setting forth allegations of bribery. As part of New York City’s bidding requirements, the plaintiffs were required to report such allegations of criminal misconduct on a questionnaire, which was then incorporated into a system, and thus, those allegations would appear in every subsequent bid for a contract by the plaintiffs. The court found, based upon these facts and assuming that New York would adopt a cause of action for compelled self-publication, that the publication requirement was satisfied because the plaintiffs had pled both elements of the cause of action. Id. at 104. In particular, the plaintiffs alleged that they were required to repeat the alleged defamatory reason for their failure to receive the school bus transportation contracts when submitting a new bid, and that it was foreseeable to the defendants that such compulsion would occur.8
In Wright v. Guarinello, 165 Misc. 2d 720, 723- 724 (Sup. Ct. Kings Co. 1995), a New York trial court also suggested that the doctrine of compelled self-publication should be recognized, especially given a situation where the alleged defamatory statement must be reported by the former employer. In Wright, the plaintiff was a care worker for a social service agency providing services for individuals with developmental disabilities. The plaintiff was discharged due to misconduct, specifically based upon an accusation that he had inflicted both physical and psychological abuse upon a patient with developmental disabilities. Although the plaintiff denied the charges and the patient subsequently identified four attackers, none of whom was the plaintiff, his employment was terminated. Pursuant to state law and regulation, the former employer was required to report all incidents of abuse. The court noted that, in short, the plaintiff was faced with revealing the circumstances behind his dismissal and surely being rejected from consideration for future employment,or concealing the grounds for his discharge only to be detected through the state required report of abusers. The court said:
Nothing in the 100-year history of “at will” employment permits an employer to go beyond the boundary of ending one employment by inventing a knowingly false charge that it can foresee will foreclose any future employability, where the circumstances bespeak a strong compulsion by the employee to self-publish the stated grounds. A license to fire at will does not carry with it permission to poison with immunity.
Id. at 725 (emphasis added).
There is, however, a contrary view in the state courts that rejects compelled self-publication defamation. Notably, the First Department in Wieder v. Chemical Bank, 202 A.D.2d 168, 170, 608 N.Y.S.2d 195 (1st Dep’t 1994), appeal denied, 83 N.Y.2d 759, 639 N.E.2d 417, 615 N.Y.S.2d 876 (1994) denied the plaintiff’s request to recognize a tort of defamation by compelled self-publication. The court did not set forth the facts of the case or provide any analysis with respect to this holding.
New York courts have not yet reached a consensus regarding the recognition of compelled self-publication defamation. Accordingly, because currently there is at least some risk that courts in New York would recognize this cause of action, employers would be wise to take precautions to avoid the risk of liability. Taking into consideration the New York decisions that have allowed claims of compelled self-publication defamation and the reasoning applied by the courts in other states that recognize the doctrine, employers have faced liability when the plaintiff can show that compelled self-publication of the alleged defamatory reason for termination was foreseeable on the part of the employer. Focusing on these factors, employers should exercise reasonable care when stating reasons for employee dismissals.
For example, in J. Crew Group, Inc. v. Griffin, 1990 U.S. Dist. LEXIS 15835 (S.D.N.Y. 1990) the court stated that it did not need to determine if the self-publication exception comported with state law because the facts of the case did not establish the elements of compelled self-publication. Thus, the employee’s defamation claim was dismissed for failing to satisfy the publication requirement. In that case, the employer stated in a letter to the plaintiff that the plaintiff’s “performance was woefully deficient” and that the plaintiff had not fulfilled his assigned duties. Id. at *3. However, the letter further stated that the employer was characterizing the termination of employment as having been necessitated by a change of corporate direction, in order to minimize the plaintiff’s embarrassment. On those facts, the court found that the plaintiff had not been compelled to repeat the allegedly defamatory statements in the letter because the plaintiff could easily repeat the alternative reason the employer provided and doing so would not have been dishonest. Furthermore, the court determined that the former employer did not know or have any reason to know that the plaintiff would republish the allegedly defamatory statements contained in the termination letter, because an alternate explanation had been provided. The court noted even if the doctrine of compelled self-publication were applicable under New York law, it would not apply here.
Based on J.Crew Group, Inc., employers may consider whether a prospective employer may request the reason a former employee was discharged and that a discharged employee could argue that such a request constitutes compulsion to republish the alleged defamatory statement. When an employer must terminate the employment of an employee for misconduct, or other potentially reputation harming reasons, the employer should exercise reasonable care in stating the reasons for dismissal. In all cases, if the employer provides a reason for a dismissal, the employer should make every effort to provide an accurate statement of the reason for dismissal, while also avoiding unnecessary details or characterizations underlying that reason that the employee might later claim are defamatory.
Employers also may wish to examine their procedures for investigating employee misconduct, or other improper behavior, to ensure that investigations are carried out with the degree of thoroughness and care necessary to support the conclusion reached. Employers also may wish to institute procedures to ensure that any reason given for employment termination is supported by a reasonable basis.
For similar reasons, employers should consider formulating an appropriately tailored procedure for responding to inquiries from prospective employers as to the reasons for an employee’s dismissal. For example, employers often institute procedures limiting the information that they will provide to prospective employers to the employee’s dates of employment, positions held and final salary. Alternatively, with respect to problematic dismissals, if the employer makes any statement whatsoever, the employer may wish first to get the employee’s agreement to the exact wording to be used in such a statement. This is often accomplished by way of a separation agreement with the employee as part of the consideration for a general release of claims.
- For a discussion of employee defamation claims and the defense of qualified
privilege, see Jeffrey S. Klein and Nicholas J. Pappas, “Employee Defamation
Claims,” N.Y.L.J., June 5, 2000 at 3.
- See White v. Blue Cross and Blue Shield of Massachusetts Inc., 442 Mass.
64 (2004), citing cases Lewis v. Equitable Life Assurance Soc’y, 389 N.W.2d
876, 888 (Minn. 1986); Theisen v. Covenant Med. Ctr., Inc., 636 N.W.2d
74, 83-84 (Iowa 2001); Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62,
70 (Mo. 2000); Hedgepeth v. Coleman, 183 N.C. 309, 313-314 (1922).
- See White v. Blue Cross and
Blue Shield of Massachusetts Inc., 442 Mass. 64 (2004); Cweklinsky v. Mobil
Chemical Company, 267 Conn. 210 (2004); Gore v. Health-Tex, Inc., 567 So.
2d 1307, 1308-1309 (Ala. 1990); Gonsalves v. Nissan Motor Corp. in Haw.,
100 Haw. 149, 171-173 (2002); Sullivan v. Baptist Memorial Hosp., 995 S.W.2d
569, 571-574 (Tenn. 1999); Lunz v. Neuman, 48 Wn. 2d 26, 33 (1955).
- See Murphy v. Cadillac Rubber & Plastics, Inc., 946 F. Supp. 1108,
1121 (W.D.N.Y. 1996); Van-Go Transport Co., Inc.v. New York City Board
of Education, 971 F. Supp. 90, 102 (E.D.N.Y. 1997).
- Lewis v. Equitable Life Assurance Soc’y, 389 N.W.2d 876, 888 (Minn.
- Id. at 888.
- However, the court also pointed out that the doctrine would probably
be subject to qualification, given the Court of Appeals’ historic concern
for unlimited liability. 971 F. Supp. 90 at 104. Other federal courts in
New York similarly have applied the doctrine of compelled self-publication.
See Elmore v. Shell Oil Co., 733 F. Supp. 544 (E.D.N.Y. 1988); Weldy v.
Piedmont Airlines, No. Civ-88-628E, 1989 WL 158342 (W.D.N.Y. Dec. 22, 1989),
rev’d on other grounds, 958 F.2d 57 (2d. Cir. 1993).
- Consequently, summary judgment as to the defamation claim based on the letter was denied because the court determined that the plaintiffs should be afforded an opportunity to overcome the qualified privilege the defendants were asserting.