Chapter 22 - § 22.4 • MISCELLANEOUS WORKPLACE CLAIMS

• Jurisdiction: Colorado

§ 22.4 • MISCELLANEOUS WORKPLACE CLAIMS

§ 22.4.1-Defamation and Reference Checks

Defamation is a common law tort based on the alleged publication of false or derogatory statements about a person.⁹⁸ If an employer makes a false statement of fact about an employee that tends to injure the employee's reputation, and that statement is published to a third person, the employee may state a claim for defamation. False statements about a person's ability to perform his or her jobs are per se defamatory, which means that damages are presumed.⁹⁹ Libel pertains to written statements,¹⁰⁰ and slander pertains to oral statements.¹⁰¹

Defamation is a particular risk whenever an employer makes statements about an employee. For instance, employee performance evaluations, job references, and statements to co-workers about another employee's termination all may set the stage for potential defamation claims. There are, however, several defenses available to employers.

Truth is an absolute defense.¹⁰² However, in the employment context, truth can be a difficult defense to prove. For instance, it is often difficult to prove that an employee was "dishonest" or that he or she "falsified a time record."

The qualified privilege defense is a more accessible and often more appropriate defense. The qualified privilege protects an employer's negative remarks about an employee, with certain limitations.¹⁰³ The employer must have a legitimate interest in the subject of the statements; the statements can only be made to others having a legitimate interest in the subject matter; and the employer's statements must be made in good faith and without malice.¹⁰⁴ The privilege can be lost if an employer abuses it.¹⁰⁵ For instance, if an employer widely publishes the reasons an employee was fired to co-workers who have no need to know, the employer might be deemed to have exceeded the scope of the privilege.¹⁰⁶

Colorado law protects employers to some extent when giving references about former employ-ees.¹⁰⁷ Under the relevant Colorado statute, a Colorado employer that provides fair and unbiased information about a current or former employee's job performance is presumed to be acting in good faith and is immune from civil liability for such disclosure and the consequences of such disclosure.¹⁰⁸ The presumption of good faith may be rebutted upon a showing by a preponderance of the evidence that the information disclosed was knowingly false, deliberately misleading, disclosed for a malicious purpose, or violative of a civil right of the employee.¹⁰⁹ An employer that provides written information to a prospective employer about a current or former employee must, if requested, send a copy of the information to the last-known address of the person who is the subject of the reference.¹¹⁰

Although this statute provides some protection for employers, the issues of what may be considered "fair and unbiased information" and "acting in good faith" are fact issues that often must be decided by a jury. As a result, the safest approach is to have a waiver and release form signed by the employee, releasing both the prospective employer and former employer from any liability for requesting or providing references.

§ 22.4.2-Invasion of Privacy

A defamation claim, by definition, involves false statements by an employer about an employee or former employee. By contrast, an employer could expose itself to liability even if making statements that are true, but place the person in a bad light, and the publication was made with actual malice. In that case, an employee may sue under the tort of invasion of privacy.

In Colorado, invasion of privacy encompasses three separate torts: (1) unreasonable intrusion upon the seclusion of another; (2) appropriation of another's name or likeness; and (3) unreasonable publicity given to another's private life.¹¹¹

In 1997, in Borquez v. Robert C. Ozer, EC.,¹¹² the Colorado Supreme Court recognized a claim for invasion of privacy based on unreasonable publicity concerning an employee's private life. To prevail on such a claim, a party must meet the following requirements:

(1) the fact or facts disclosed must be private in nature; (2) the disclosure must be made to the public; (3) the

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