Published on July 23rd, 2013 by Alan L Sklover
Question: My question is about defamation. I worked in Pennsylvania and my employer retaliated against me, created a hostile workplace, and basically forced me to quit. Now I’m writing a book to tell all.
Could the company sue me even if it’s all true?
Answer: Dear Marcia: It is literally amazing how many people either want to write a book about their employment experiences, or are in the process of doing so. The words I often hear is “No one will believe this, but I’m going to say it anyway.” It’s for that reason that I believe my answer to your question may be of interest to, and helpful for, so many people.
1. “Defamation” requires that what you say or write is untrue; so, truth is a complete defense to defamation. The very definition of defamation is “a written or spoken statement of fact that is false and injurious to someone’s reputation that is communicated to another person.” It’s that simple: if what you write is true, it is not defamation. In fact, publishers often employ “fact-checkers” to make sure that statements of fact in books they publish are, indeed, all true.
2. But don’t forget: the company and/or its employees might disagree with you about what is true, and what is false, and so might still sue you. You might truly believe that your employer engaged in retaliation, hostility and bullying. You might even cite examples of “Mr. Smith” having done bad things that were witnessed by 10 of your co-workers. That said, the company and Mr. Smith might disagree with your contention that what you wrote is true, and your 10 witnesses might conveniently “forget” all they witnessed in order to keep their jobs. These things sometimes do happen, and ought to be considered seriously before you work quite hard on the book you have in mind.
3. Your book might also violate a confidentiality clause you might have agreed to. It is quite common for employees to be required to agree to remain strictly confidential about everything they learn or experience while working for an employer. These agreements can be found in (a) offer letters, (b) employment contracts, (c) stock option agreements, (d) bonus award agreements, (e) and employee handbooks. If you agreed to abide by one or more such agreements that require confidentiality during and after your employment, your book might just violate that agreement, and result in a lawsuit against you on that basis.
4. Without you realizing it, your book might also divulge valuable “trade secrets” and/or “proprietary information” of your employer, which could get you sued. Though it might sound silly, let’s imagine this example: let’s say you worked in a cupcake factory, and you saw your colleagues put feathers mixed with sawdust into the cupcakes to make them fluffier. (a) If it was true, it could not be defamation, as truth is a total defense to defamation. (b) If you did not sign a confidentiality agreement or an agreement with a confidentiality clause in it, you could not be violating a confidentiality obligation. (c) But – and this is very important – the addition of feather and saw dust into the cupcakes as a “fluffing” agent might be a secret recipe that makes the cupcakes the best seller in the world.
You might say, “Feathers and sawdust can’t be a secret recipe . . . that is disgusting.” Well, Marcia, they are both “organic” materials, and I will bet that some cupcakes have far more disgusting things in them! The point is that you need to consider whether anything you write about is a valuable secret, some process, practice or business formula that gives your employer an edge over its competitors. Losing that could hurt your employer, and thus make it entirely appropriate for them to sue you. €
With all this said, I totally understand and appreciate your desire to “tell all” and to try to stop your former employers from acting toward others the way they have acted against you. I applaud the notion, but I also urge caution, because that is, more than anything, an attorney’s job: to (a) identify, (b) assess, and (c) help reduce risks in life. I hope these thoughts do just that for you, and for others with the same question in their minds.
P.S.: Don’t forget: we offer Model Letters, Memos, Checklists and Form Agreements for almost every workplace issue, concern and problem that requires your smart navigating and negotiating. They show you “What to Say, How to Say It.™” Want to see our Entire List? Just [click here.] Delivered by Email – Instantly!
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© 2013 Alan L. Sklover, All Rights Reserved.