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Management:

Charged with Defamation?

Reader Question: One of my lab techs wants to transfer to another lab on our campus. Its PI happens to be a good friend of mine. The employee wants me to provide a good reference, but truth is she is irresponsible and I'm glad to get rid of her. Do I dare write my colleague the truth about his prospective hire? Would I risk being charged with defamation? What about merely "whispering" the situation to him over a drink?

Expert Comments:

There is an old joke that internal transfers are the easiest way to get rid of a marginal employee and make him/her someone else’s headache. Your dilemma really is that “the someone else” is your friend. At the heart of what you want to know is (1) whether there are legal repercussions if you speak your truth and (2) the etiquette around putting a close colleague on the receiving end of your offloaded problem, if you don’t. Maybe even more importantly is what you mean by “irresponsible” and whether that same trait will manifest in your friend’s lab group?

First off, let’s put the legalities in perspective. Defamation is an express or implied claim that puts an individual in a negative light. It has to be printed (libel) or spoken (slander) to a third party (published) to be actionable. There is no doubt that speaking or writing derogatory information about another can provide an opportunity for them to sue you. The good news though is that if you can prove that your statements are true, it is a complete defense and you cannot be held legally liable.

In this case, if you were sued, and could prove the lab tech was irresponsible, you’d be off the hook. But who wants to invite a possible legal entanglement where you’d have to hire and pay a lawyer, even if you are successful in the end? When it comes to references and recommendations, most employers have the same concerns. They often limit their references to the employment equivalent of “name, rank and serial number” to avoid just these types of lawsuits.

An employer asked for a reference for a current or prior employee will most often just confirm the fact of employment and dates of employment, but little else. The reason “mum” is the word, is to avoid lawsuits from the employee, or even a subsequent employer if the “new hire” doesn’t work out well. And yet in many jurisdictions employers can be held accountable for not disclosing information that should have been disclosed to prevent a future employer from suffering the same fate.

For example, a school district who fires a teacher for molesting a child, should disclose that to another potential educational employer who inquires. But if that same teacher was fired for occasional drinking or a bad attitude, it is likely the school district would be advised to not disclose it.

In your case, your statement that your lab tech is “irresponsible” doesn’t quite say what the problem is. If her irresponsibility could be a danger to others, then yes it is worth disclosing that information, but do so in a very specific and narrow way. For example, you might tell your friend: “We discovered that she did not scrupulously follow our protocols on repeated occasions and her work area posed a hazard.” On the other hand, if “irresponsible” means she pushed work off on others, showed up late, or didn’t write reports on time, you may want to phrase your commentary differently. In that case you may want to say that in your lab group, she didn’t take the initiative to do thus and so. Since “irresponsible” is a broad brush term, it’s important to be sure that you use it carefully, even if your colleague is a trusted friend.

There’s also something else you may want to consider here. Just as “beauty is in the eye of the beholder,” sometimes the same person you describe as “irresponsible” may perform better in another research group for a variety of reasons. For example, she may like her new co-workers better, or find the work of the group more appealing. It could also be that she will find your colleague a more agreeable boss and that will help her perform better.

Since it is likely that you will speak to your colleague somewhat candidly, just think through what you say and how you say it. If you stick to reporting your experiences with the lab tech and not assigning broad brush personality labels, you’ll likely stay out of legal trouble. Plus you may give this lab tech an opportunity which is better for her, and better for you. If you just paint her in a bad light, there seems to be little upside for anyone.

Comments by Susan Parker, Esq., President, Corporate Content, Inc

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