Reply #39: Civil case law doesn't make something illegal

[Xithras]

And the precedent is merely that you can sue an employer when they spread false and malicious information about you.

They can spread truthful information all they want, but they must have actual evidence to prove it's the truth.

The problem is that many employers simply don't understand what "evidence" is. If your boss catches you shoving $5 from the till into your pocket, and then later tells another potential employer about it, the fact that he caught you isn't going to fly as evidence. You're suing him for defamation, so any unverifiable statements of his are going to be worthless as evidence (he could be saying that just to save his own skin). In this case, an employee would probably win a sizeable award against the company for defamation.

If, however, there was a camera overhead that caught the theft, and the tape from that camera can be played in court, then the employee would lose. Truth is a defense against slander.

It all comes down to whether or not the employer can unequivocally prove the truth of their statements. Many reasons for termination are also not provable at all. If the employer tells a caller that he fired you for being to work everyday, he may think that he has solid evidence to keep himself safe, because all of the timecards show him punching in at 8:05-8:10 every morning. But what if the employee claims that the employer wouldn't permit him to clock in on time? Or that his actual work hours didn't start until 8:15, and he was actually a few minutes early every morning? Can the employer definitively prove those statements false? And if the employer is stupid enough to accuse a former employee of something subjective, like being "lazy", then "proof" is almost impossible.

That's why these kinds of statements are a legal minefield for an employer. A good attorney can find a ton of loopholes to disprove evidence, and without proof, an employers statement can be considered slander.

Still, most suits of this type do NOT succeed. There have been a number of high profile cases in which former employees have received large payouts, but in most cases there is sufficient proof available for the employer to prove the truth of the statements, or at least to plant enough doubt in a jury that a suit will be dismissed. Even though they win most of them, employers still try to steer clear of these types of suits, because a lost lawsuit still costs money to defend against.