In a unanimous decision released publicly today, the Connecticut Supreme Court narrowed the scope of the qualified privilege that employers have been able to invoke in defamation claims involving intracorporate communications.  In doing so, the courcourtesy state court postcardst held that the defamed party (typically an employee) does not need to prove "actual malice" to defeat a qualified privilege claim.

As a result of this this ruling, employees may have an easier time establishing a defamation claim and employers will need to make sure that any workplace statements they make can be backed up.

The case, Gambardella v. Apple Health Care (download here) won’t be "officially released" until May 19, 2009.  But the holding may give employers another reason to worry about what they say in the workplace about others.

It was a worry that the employer here highlighted as the court acknowledged:

The crux of the defendants’ claim is that the purpose underlying the privilege, namely, to
encourage the free flow of information necessary for efficient, intelligent employment decisions, is hindered only if the speaker acts with actual malice because only false information, not mere bad faith, impedes the free flow of information necessary for employment decisions.  Consequently, the defendants contend, actual malice should be the standard to defeat the qualified privilege in the context of intracorporate communications with respect to employment decisions. We are not persuaded.

Instead, the court distinguished prior cases (including the landmark Torosyan v. Boehringer Ingelheim case) and found that a broader standard should apply even though the employer’s reading of various decisions. In fact, the court goes out of its way to say that "although we acknowledge that these footnotes [in prior cases] may be interpreted consistently with the defendants’ contentions, we reject this interpretation." 

Therefore, it is clear that the settled law in Connecticut is that a showing of either actual malice or malice in fact will defeat a defense of qualified privilege in the context of employment decisions. The defendants have provided no compelling  reason to depart from our well established jurisprudence and require a showing of actual malice exclusively simply because the qualified privilege arises in the context of intracorporate communications in connection with employment decisions. Accordingly, we reject the defendants’ invitation to do so.

Observant practitioners will remember the title of this case from a prior appellate court decision in 2005 which remanded the case to the trial court on the defamation issue.  Gambardella v. Apple Health Care, Inc., 86 Conn. App. 842 (2005).


So what was exactly was defamatory? According to the court’s opinion, the employer had concluded that the employee had stolen property and that conclusion became passed around the workplace. The Supreme Court rejected that notion completely concluding "there simply was no basis for a belief that the plaintiff had stolen property from the facility."

The court concluded that even if the employer believed the statement was true, that was not enough to protect it from a defamation suit:

It is axiomatic that a defendant who closes his eyes to the facts before him cannot insulate himself from a defamation charge merely by claiming that he believed his
unlikely statement.

This case is similar to a recent case of an employer who fired a salesman and then told all the other employees that the employee had been terminated for failure to follow the company’s policies. 

For employers in Connecticut, this case should serve as a wakeup call in two respects. First, employers who conduct workplace investigations should ensure that its investigations are thorough and fair. Second, the employer should take steps to ensure that the results of that investigation are distributed only to those people who have a need to know that information.