Legal Counsel for Colorado Employees
FALSE ACCUSATIONS IN JOB TERMINATIONS: DEFAMATION OR SLANDER IN COLORADO
By: Nathan Davidovich
Copyright: Copyright (c) July 2018
It is a sufficiently traumatic experience to be terminated from a job for a lawful reason. However, it is devastating to the employee, and his or her future career, to be fired because of a false accusation of committing criminal or other job misconduct. As one author stated, “In modern times, the potential for the careless, or worse, the intentional falsehood to destroy livelihoods, disrupt families, and damage friendships has been viewed almost without exception by English and American judges as so serious a wrong that no judicial system would dare abandon a remedy for it.” See, Curbing the High Price of Loose Talk, by Diane Leenheer Zimmerman, 18 U.C. Davis Law Review 359. This article will discuss the remedy in Colorado for such conduct. If you feel that you have been a victim of defamation, it is important that you know your legal rights, and the actions you must take to prevent loss of your right to a remedy. If you wish to consult with the author on any matter relating to Colorado employment issues, you will be advised of the fee basis for such consultation.
This article is not designed to provide legal advice or render legal opinions for specific situations. The law in other states may vary from Colorado on these issues. For specific legal questions, contact the attorney of your choice. If you wish to consult with the author on any matter relating to Colorado employment issues, you will be advised of the fee basis for such consultation.
WHAT IS DEFAMATION?
Defamation is a communication that holds an individual up to contempt or ridicule thereby causing him to incur injury or damage. The law has afforded a cause of action for damage to a person’s reputation by the publication of false and defamatory statements since the latter half of the 16th century. The law of defamation is recognition of the right of people to the protection of their own reputation from unjustified invasion and wrongful hurt, and reflects no more than our basic concept of the essential dignity and worth of every human being–a concept at the root of any decent system of ordered liberty. Defamation law developed not only as a means of allowing an individual to vindicate his good name, but also 2 for the purpose of obtaining redress for harm caused by such statements. See, Milkovich v. Lorain Journal Co., 497 U.S. 1, 12, 110 S. Ct. 2695, 2702 (1990).
In Colorado, damage to reputation has been held to be the essence of a defamation action. What makes the tort of defamation so intolerable is that the statement destroys an individual’s reputation, which is a characteristic, which cannot be bought, and one that, once lost, is extremely difficult to restore.
ELEMENTS OF A DEFAMATION CLAIM
Colorado courts, both state and federal, have set forth the elements of a cause of action for defamation as follows: (1) a defamatory statement concerning another; (2) published to a third party; (3) with fault amounting to at least negligence on the part of the publisher; and (4) either that the statement is of a type as not to require special damages, or the existence of special damages to the plaintiff caused by the publication. See, McIntyre v. Jones, 194 P.3d 519 (Colo. App. 2008); and, Mondragon v. Adams Cty. Sch., 2017 U.S. Dist. LEXIS 26147 (D. Colo. Feb. 24, 2017).
To prove a claim for defamation against an employer the employee must show that the employer published a false statement of defamatory fact. Truth is a defense to a claim of defamation.
The requirement of “publication” is set forth in the Colorado statute, at C.R.S. 13-25-125.5, as follows:
No action for libel or slander may be brought or maintained unless the party charged with such defamation has published, either orally or in writing, the defamatory statement to a person other than the person making the allegation of libel or slander. Self-publication, either orally or in writing, of the defamatory statement to a third person by the person making such allegation shall not give rise to a claim for libel or slander against the person who originally communicated the defamatory statement.
EMPLOYER MAY HAVE A “QUALIFIED PRIVILEGE” TO MAKE THE STATEMENT
Colorado law recognizes a qualified privilege for communications by a 3 party with a legitimate interest to persons having a corresponding interest and communications promoting legitimate individual, group, or public interest. See, Burke v. Greene, 963 P.2d 1119 (Colo. App. 1998). For example, an employer has a qualified privilege to report the reasons for the termination to a prospective employer, if the reasons for termination, constitute a legitimate interest of the prospective employer. For example, an airline company receiving a request from another airline, regarding the hiring of a terminated pilot, may provide information as to the reasons for termination, without being subjected to a defamation lawsuit. However, the qualified privilege is not absolute. The airline to whom such an inquiry is addressed cannot abuse the privilege in answering it, and it will be lost if the airline is actuated by express malice. That means that the employer, at the time of making the statement, knew it to be false, or acted with reckless disregard as to its truth and veracity. See, for example, Sky Fun 1, Inc. v. Schuttloffel, 8 P.3d 570 (Colo. App. 2000).
An employee who has been fired from his job may recover the actual economic damages sustained, as well as damages for the loss of reputation, and emotional distress. Defamatory remarks, which relate to the conduct of an individual’s business are tantamount to defamation of the individual’s business and professional reputation, and are categorized as “slander per se” because injury to reputation is presumed. The primary advantage to a plaintiff claiming slander per se is that certain damages are presumed if the statement is so categorized, e.g., loss of reputation, and therefore, need not be proved. If malice has been shown, the employee may also recovery punitive damages, but generally, the amount of the punitive damages may not exceed the amount of actual damages.
There are many more intricacies involved in slander and defamation cases than have been discussed in this article. Learn more about protecting your rights by selecting a competent lawyer to represent you.
Nathan Davidovich practices employment law in the state of Colorado, and he is available for consultation on any matters arising in 4 the State of Colorado. Please contact Nathan Davidovich by email or by telephone, at the address below, to discuss the fee for representation and to schedule a consultation.
Nathan Davidovich, Attorney at Law
Davidovich Law Firm, LLC
3773 Cherry Creek North Drive
Denver, Colorado 80209
Phone: 303-586-6915/(303) TALK-LAW
Web Site: https://www.talk-law.com