7.10 Work-related Defamation

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2022 Ed.)

7.10 WORK-RELATED DEFAMATION

7.1001 In General.

Defamation claims play an increasingly important role in Virginia employment litigation. While these claims previously tended to represent "add on" claims appearing near the end of plaintiffs' complaints, they now feature prominently in employment lawsuits. Several Virginia Supreme Court cases have dealt with work-related defamation.

There are two main types of statements that might generate defamation issues in the workplace. First, communications inside the company about an employee's job performance might generate a defamation claim. These could either be official job evaluations or informal statements (including gossip). Second, a company's or employee's statement outside the company might generate a claim. These usually involve responses to job reference calls about former employees (although even current employees might be the subject of calls from lending institutions).

Work-related defamation typically involves issues such as publication, defamatory meaning, opinion, and imputed liability.

7.1002 Federal Labor Law Preemption.

⁴²⁸⁸ In a case arising in Virginia, the United States Supreme Court held that federal labor laws preempt the Virginia "insulting words" cause of action for ugly statements made during a strike. ⁴²⁸⁹ The Court has applied essentially the same principle to all state defamation laws. ⁴²⁹⁰

In the years since those decisions, federal courts have continued to find defamation claims preempted by federal labor laws if they amount to unfair labor practice charges presented in the guise of state common law claims. ⁴²⁹¹ Preemption sometimes affects the remedy. For instance, one court held that a plaintiff alleging labor-related defamation must prove actual damage and may not rely on a state common law presumption of damage. ⁴²⁹²

In another instance, an Eastern District of Virginia court held that, under U.S. Supreme Court and Fourth Circuit precedent, the "actual malice" standard always applies for claims alleging damage to the plaintiff's reputation based on publicized statements in labor disputes. The court explained that

[o]rdinarily, a defendant bears the burden of proving the plaintiff's public figure status. In the context of labor disputes, however, the requirement that the plaintiff be a public figure in order to trigger the 'falsity' and 'actual malice' requirements of New York Times has been eliminated. . . . This conclusion obviates Smithfield's asserted need for an "evidentiary hearing" on the issue of whether it can be deemed a limited-purpose public figure in this case. ⁴²⁹³

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