Defamation and Slander

Once terminated, former employees are often surprised to hear the employer’s reasons for termination. In many cases, former employees feel that the reason given for termination is unfair, deceptive, or simply a lie. To make things worse, employers don’t always provide a clear reason at the time of the firing. Sometimes the employee hears the reason for the first time when applying for unemployment benefits. Sometimes they may not hear the reason until they apply for a new job and the prospective employer checks their references. However, this does not mean that the reason given is defamation or slander.

By definition, for a statement to be defamation or slander, it must be published to a third party, and that publication must not be privileged. Many former employees applying for unemployment benefits are surprised to hear that anything the employer says in the separation notice or during an appeal hearing is absolutely privileged under Georgia law; that is, there is simply no such thing as defamation or slander when an employer tries to deny benefits. Similarly, the information given to a prospective employer is generally privileged. Finally, many workers are surpised to learn that statements made within a company by one employee to another are privileged.

Nevertheless, while defamation and slander are actionable in Georgia, employers should probably be more worried about how hearing the reason for termination for the first time during the application for benefits affects the employee. It is not uncommon to see an employee who is denied benefits later sue on another claim simply because they felt surprised or betrayed when the employer challenged unemployment benefits. The best practice here is to be clear with your employees: give them written warnings that justify the termination, issue a written separation notice at the time of termination, and establish a list of reasons for termination that will result in a challenge to an unemployment claim. In other words, there is no substitute for a good employee handbook.

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