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“If I write a book about my former employer, can they sue me if it’s all true?”

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?

Marcia
Philadelphia, Pennsylvania

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.  

My Best,
Al Sklover 

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! 

Repairing the World –
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© 2013 Alan L. Sklover, All Rights Reserved.

“What can an ex-employer say about an ex-employee?”

Published on July 5th, 2011 by Alan L Sklover

QuestionMy boyfriend was let go from his job. The only thing he was told was that he was being let go, though it should be noted that when he was hired, he was told the work may be temporary.

He is currently going through a divorce, and his wife went to his ex-employer and asked for a letter stating why he was fired. The company – which her step-father works for – provided her with a letter listing numerous reasons why he was “fired.”

My boyfriend was never provided with a copy of that letter. His wife then used this letter in court, and stated in the court that she went and asked for the letter, and was given it.

Is this legal? Can he take action against his ex-employer?  

 Kathy
(City, State Not Provided)

Answer: Dear Kathryn:

What happened to your boyfriend illustrates important issues about the relation between former employees and their former employers:     

1. After the employment relation ends, the former employer and former employee are, for the most part, essentially “strangers.”  With very few exceptions, former employees and former employers have no relation to each other, almost as if strangers, unless they have signed an agreement obligating themselves further. There are very few exceptions to that.

2. Thus, neither the former employee nor the former employer has any legal expectation of privacy, confidentiality or secrecy, unless they have agreed to that. Thus, both the employer and the employee are free to tell other people anything they want regarding the other. That said, again, just like strangers, if one makes a false and damaging statement about the other, the “victim” of the false statement can sue the 0ne who spoke or wrote falsely.   

 3. The law does prohibit defamation, but that requires the utterance of a false statement. Defamation is a very narrow concept. It requires (a) the public dissemination, (b) of a false statement, (c) that is damaging, and (d) is outside of several different exceptions that the law permits. For example, in a courtroom trial, no matter what a witness says – no matter how false, no matter how widely it is publicized, and no matter how damaging, the law says “This is protected, and is outside of what we call defamation.” Another exception are expressions of opinion, because they are not statements of “fact.” There are many other such exceptions. It is very possible that the letter written by your boyfriend’s former employer were true, or were protected opinion, or fit into some other exception.  

4. So the former employer is free to make true statements (oral or written), and so is the former employee. My  concern is that the reasons in the letter that went to Court may have been true. As noted above, both former employees and former employers are free to make true statements, regardless of the effect of those statements.  

5. Incidentally, the fact that your husband’s wife’s step-father works for the company should make the letter’s statement suspect, perhaps even without any credibility. One thing I do hasten to point out: I would expect that your boyfriend’s lawyer in court would remind the Judge that his wife’s father works for the former employer, and thus it makes the letter somewhat suspect. In fact, the letter would seem to some to be without any credibility whatsoever.

So, for these reasons, from what you have written, I think what the  former employer did was “legal,” and I don’t think your boyfriend has any legal recourse against his former employer.  Sorry for the bad news.

Thanks, in any case, for writing in, and I do hope you’ve found this information helpful. We’d very much appreciate it if you would use our advertisers – by clicking to them on our blogsite – and in that way help us keep going with what we do.

Best,
Al Sklover

© 2011 Alan L. Sklover, All Rights Reserved.

“How can I stop interference with my employment?”

Published on March 30th, 2011 by Alan L Sklover

Question: My current employer just received a scathing email from a former client of mine absolutely bashing my reputation terribly. The statements are all false and they are really bad.

We are currently pursuing a five million dollar contract with the State of Arizona. In the letter my former client stated that he contacted one of the state senators we are dealing with, with the same things about me.

What should I do? 

Michael
Saint David, Arizona

      
Answer: Dear Michael:

Without a doubt, you have a right to protect yourself from what seems to be defamation and interference with your employment/business relations. Here’s what I suggest you do:    

a. First, you should demand a retraction of any false statements about you that serve to harm your reputation. In a letter sent by Federal Express, or Certified Mail, Return Receipt Requested, you should insist that a retraction of the false statements be sent to your employer. A false statement of fact sent to another person that serves to harm your reputation is the definition of defamation. Under Arizona law, you have every right to sue your former client for doing what he or she is doing. By sending him or her a letter demanding a retraction you (1) might get the retraction, and (2) will have a stronger case if you do, in fact, have to sue. 

Someone got a grudge, and bad-mouthing or sabotaging you? Get Our Model Memo Expressing Concern about Post-Employment Bad-Mouthing. It’s both respectful and effective. Shows “What to Say and How to Say It.”™ Just [click here.] Delivered by Email – Instantly!

b. Second, your letter should also demand that the writer “cease and desist” from interfering with your employment and the prospective business relation you are pursuing. In most states, including Arizona, the law permits a person to sue another person who interferes in bad faith with either contractual relations or “business expectancy.” (This violation of your legal rights is referred to as “tortious interference.”) By sending your former client a letter insisting he or she “cease and desist” from interfering with your efforts to succeed in getting the five million dollar contract, you (1) might get him or her to stop, or (2) if he or she causes you to lose out on that “business expectancy,” you may have a stronger legal case against him or her.

Former Employer Interfering, Disrupting, Sabotaging? Use our Model Letter – “Cease & Desist – Former Employer Interference.” Contains formal warning and demand to stop. Shows you “What to Say, and How to Say It.” To get your copy, just [click here.] Delivered to your printer in minutes.

c. Third, and finally, it sounds like a consultation with an attorney might be worthwhile. I don’t like to tell everyone who writes in to use the services of an attorney. However, the facts you present are very compelling, urgent, and extreme. What is at stake is no less than (a) your employment, (b) your reputation, and (c) five million dollars. Ouch!! You really do need to get your former client to stop, and to stop quickly. I encourage you to ask around for a referral to a tough attorney who might be able to do what needs to be done, and to do it soon.

What you describe indicates that your former client is wildly ignorant of the bounds of proper behavior, and will not likely stop unless forced to do so. I encourage you – strongly – take aggressive and prompt action. It takes a lifetime to build a reputation, but only a moment to lose it. Don’t hesitate. And best of luck to you in your efforts.

Best,
Al Sklover

© 2011 Alan L. Sklover, All Rights Reserved.

“How can I deal with the possibility that my present employer is sabotaging my attempts to get a new job by saying bad things about me?”

Published on February 5th, 2010 by Alan L Sklover

Question: I have been working as an independent contractor for a large Fortune 500 multi-national staffing agency / consulting firm for the past few years. Yet I have been getting the very strong impression that this present employer has been sabotaging my efforts to procure full-time offers outside of the companies that they work with, who they bill me out to.

I received possible confirmation of my suspicions just two months ago. I understand that they want to keep me working for them, as they make lots of money off of me working on long-term contracts for their business partners.

How can I deal with this? Should I go so far as to hire a Private Investigator, to see how the staff at my local branch handles calls from recruiters asking about my work history?

Thanks for any suggestions.

Charlie
Cincinnati, Ohio

Answer: There are three ways I have seen clients deal successfully with your predicament.

First, some of my clients have used the services of “reference checking” companies they have found on the internet who, for a fee, do “reference checking” to see what employers were saying about them. I can’t recommend one to you, but I can tell you that if you type “job reference check” into your search engine, many will come up.

Second, some of my clients have had two or three of their friends, or friends of their friends, call up their employers – or even sometimes their bosses – to ask “Would you hire this person again?” While it lets your boss know you are out there looking, it may solve the kind of problem you are afraid you are facing. One client went so far as to tape record what was being said to her, and in this way won a very large settlement against her employer, and her “saboteur” was fired.

[If you consider taping a telephone call, you must first determine whether the recording of telephone calls is legal in your state. In New York it is legal, so long as at least one of the participants in the call is aware it is being taped. Check, first, about your own state’s laws.]

Third, some of my clients have written to their employer’s senior management, and said, in effect, “I am concerned that my applications for new, full-time jobs elsewhere are being sabotaged when my references are being checked. Of course, this would be wrong. Might you please remind people in my branch office that this would be wrong, and perhaps even unlawful? I would very much appreciate that.”

Some of my clients have done all three of the above.

If any of our readers have had success with other ways of dealing with “reference sabotage,” I invite them to please write in and share your stories. I will be sure to share them with our readers.

Hope one or more of these work for you. Please write back to let me, and our readers, know both what you did, and how things went.

Best, Al Sklover

P.S.: We offer a Model Letter to deal with this precise problem. It is our Model Letter to Your Former HR, Managers and Colleagues to Discourage Negative References. “What to Say, and How to Say It.”™ To obtain your copy, just [click here.] Delivered by Email – Instantly!

© 2010 Alan L. Sklover, All Rights Reserved.

“My former employer threatened to sue my new employer, and got me fired. What can I do?”

Published on September 10th, 2009 by Alan L Sklover

Question: I had a job working for a doctor helping him market his practice. My compensation included being paid a percentage of new business that came in from the marketing events I organized. Even though I was successful in my efforts for the doctor, he never paid me the percentage fees I was due.

For this reason, a coworker and I quit, and went to work for another doctor in town. When my former employer found out where I was working, he wrote a letter to my new employer and told him that I had stolen patient files, which was a 100% lie. My former employer also had his attorney write a letter to my new employer threatening to sue, which ended up getting me fired.

Anything I can do?

Tracy
San Antonio, Texas

Answer: Legally speaking, your former employer has done two things to you that you could sue him for. First, he defamed you. Defamation is the oral or written dissemination of a false statement of fact about a person that harms their reputation. Your former employer’s statement that you stole patient files was surely defamation, for which you could sue him.

Second, your former employer also “tortiously interfered” with your new business (employment) relations. That means that, without good reason, he “butted in” on your new employment, with the sole and wrong motivation: to hurt you. On these two bases, you could sue your former employer, and probably win.

Practically speaking, the question is this: Would you be able to get an attorney in your city to take your case on a “contingency basis,” which means that he or she only gets a percentage of what you collect, if anything, from your former employer. That would seem to be the key to your getting what you are due: your former employer paying for the damage he caused to your finances and reputation. It may not be an easy thing for you to find such an attorney, because these kinds of lawsuits – unlike car accidents and other personal injuries – are not easily won.

Like so many of our legal rights, upholding those rights requires having to pay for them, or being lucky enough to have an attorney agree to take on your case without getting paid up front. You should first try to contact employment attorneys in your city, who might be found by calling your local Bar Association Referral Service.

I do suggest you also consider writing your own letter to your former employer, and perhaps to his attorney as well, telling them that you are speaking to attorneys, and considering suing both of them for (a) defamation, and (b) “tortious interference.” That, at least, may stop your former employer from messing up your next job.

I hope that is helpful; I really do.

Best, Al Sklover

P.S.: Former Employer Interfering? Use our Model Cease-and-Desist Letter to Former Employer to Halt Interference. Firm, Direct, Effective. Just [click here.] Delivered by Email – Instantly!

© 2009 Alan L. Sklover, All Rights Reserved.


Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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