qualified privilege

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locplane[1]My colleague Chris Engler returns today with a recap of a new case in Connecticut that is of particular interest to employers who provide (or don’t provide) employment references.

We have all heard the admonition that “less is more.”

In an opinion that will be released next week, the Connecticut Appellate Court reminds us just how true that admonition is.  In fact, the court’s decision gave one employer more than 400,000 reasons to heed the adage in the future.

The case, Nelson v. Tradewind Aviation, LLC, arose from a defamation lawsuit.  According to the court’s opinion, the plaintiff had worked as a pilot for Tradewind Aviation for a summer back in 2007.  At the end of the season, the company needed to downsize for the winter.  The plaintiff and others were laid off.  His termination paperwork indicated that he had been laid off due to lack of work.

A few months later, the plaintiff was offered a job by another aviation company.  In accordance with federal regulations, this company had the plaintiff request his employment records and other forms from Tradewind Aviation.  Unlike the termination paperwork provided to him when he was laid off, on the new forms Tradewind Aviation’s representatives wrote that the plaintiff was involuntarily terminated and had had performance issues.

Tradewind Aviation then sent a letter to the prospective employer elaborating on these performance issues.  The next day, it faxed over a copy of a drug test report (which concluded that plaintiff had not taken any drugs) along with a note that allegedly tied the supposed performance issues to drug use.

When the prospective employee rescinded its job offer to the plaintiff, he filed suit against Tradewind Aviation.  He claimed that his former employer had engaged in defamation with malice.  A few years later, a jury wholeheartedly agreed, to the tune of over $407,000 in damages.

Not surprisingly, the employer quickly appealed the verdict.Continue Reading Less May Be More When It Comes To Job References

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).

Continue Reading Breaking: Connecticut Supreme Court Narrows Scope of Qualified Privilege for Workplace Communications

Earlier this week, the Connecticut Supreme Court decided Malan v. University of New Haven Police Department, an important decision for employers to be aware of when dispensing with job references.  In an earlier post, we discussed how the court created a qualified privilege for such references. 

So what questions did the court leave open?

In an important decision to be officially released next week, the Connecticut Supreme Court has found that a qualified privilege exists to employers giving job references.

Specifically, in an issue of first impression, the court has now "recognized a qualified privilege for the employment references of current or former employers that were solicited with the…