Published on August 2nd, 2007 by Alan L Sklover
“No one can have a higher opinion of him than I have,
and I think he’s a dirty little beast.”
– William S. Gilbert
ACTUAL CASE HISTORY: For about one year, Rick, 48, had served a large, Midwestern telecommunications company as its Director of New Business Development. He’d been recruited while working for a mid-sized cable company headquartered in New England, where he had fulfilled the same role. At both companies he was well-liked, though hard-driving with his staff, and extremely successful. Rick was particularly creative in the kinds of business partnerships he was able to conceive, pursue, and complete. He had a knack for making both sides of a transaction feel like there was only one side, and they were both on it.
On a business trip to New York, Rick had dinner with a prospective client. She was the Chief Marketing Officer of a large electronics retailer based in New Jersey. Rick had developed cross-promotional contests with her at his last job, in which her company’s telephones and his company’s telephone services were jointly promoted and marketed. These efforts had proven successful for both companies, and he was hoping to develop a similar business partnership with her company for his new employer. Over their years of working together, she had become more than a mere business colleague of Rick, but had become something of a trusted friend, as well.
During their dinner conversation, the Chief Marketing Officer shared with Rick, on a confidential basis, what she had been told the week before by Rick’s boss at his former employer: that Rick had been asked to leave the cable company due to his “questionable business practices.” More particularly, Rick’s former boss had told her, Rick had apparently offered “envelopes of cash” to get business deals done. Rick couldn’t believe his ears, felt like he could barely breathe, and lost his appetite for dinner.
She shared with Rick her own take on the allegation: she saw it as a combination of jealousy of Rick’s abilities, and revenge for Rick’s leaving. But she candidly shared with Rick something else, much more troubling to him: while she didn’t believe a single word of it – not for a single moment – it did make her feel somewhat reluctant to do any business with Rick, at least for awhile, for fear of guilt by association. “What might happen,” she shared with Rick, “if the same story got back to her boss? What would he think of her?”
Rick was beside himself, understandably so. Questions kept swirling in his mind: “Why would his former boss do this? Who else had been told this story? Would this hurt his efforts at his new job? What if his new boss heard the same story? What could he do? What should he do?”
Because Rick was a long-term client, when he called and explained the situation to us, we altered our schedule to see him the next morning. When he arrived, he looked like he hadn’t slept a wink. He had a strong desire to do something, or somehow strike back, but his better judgment – and his wife -convinced him to speak with us, instead. We’d seen this sort of thing before, more often than you might think. We worked with Rick for almost two months to let his former employer know what we had heard, to halt further dissemination of the false story, and in that way to limit the potential damage to Rick’s good name and career.
We’ll never know for sure how far and wide the story might have traveled, but it seemed the harm was minimal. But who knows what effects the false accusation might have had on Rick’s reputation and career had he not heard of it, and had we not promptly intervened. Rick was lucky: having both a good enough friend to tell him of the story being disseminated, as well as an attorney familiar with the problem, he was able to limit his losses. Countless others simply never know what “hit them,” or, to be more precise, what “hit” their careers.
LESSON TO LEARN: In life in general, and in business in particular, one of your most valuable assets is your reputation. As the Yiddish saying goes, “It takes a lifetime to build a reputation, and but a mere moment to lose it.” Threats to your reputation must be confronted, and halted, if at all possible, with both speed and tenacity. Put simply, you should never take lightly threats to your reputation; your reputation must always be safeguarded to the greatest extent possible.
While most business people act professionally, the incidence of defamation by former employers seems to be a growing problem. In our practice it is seen more and more each year. Perhaps it is the increasingly competitive nature of business. Perhaps it is the pressures some people feel to win “at all costs.” Whatever the reason, it is a problem, and seemingly a growing one, and one that is not likely to disappear soon.
Just as there is a legal remedy if another driver damages your car, or if a doctor damages your body, there is a legal remedy if someone damages your reputation. The law is available to help you if you have been defamed. But the law will not act, on its own, on your behalf; that you must do for yourself. In standing up to defamatory threats to your reputation in business, certain steps must be taken, and certain missteps need be avoided, and you need to be aware of both. There’s lots you can do to help yourself, and without a lawsuit, but only if you understand what you’re doing, and why.
While we do everything we can to protect our clients’ interests without resorting to litigation or threats of litigation, a good part of your leverage in matters of defamation is derived from the protection afforded by the law.
WHAT YOU CAN DO: Here are the ten (10) steps we suggest you consider taking if you believe you have been defamed by a former employer:
1. Above all, stay calm: First and foremost, stay calm. Responding with anger or threats can only hurt you. First, if it turns out that you really weren’t defamed, you’ve just burned a bridge. Second, if you threaten another person, or even if they falsely claim you did, that could do more damage to you than the original defamation. Third, if you act impulsively you may make it far more difficult to obtain evidence of the defamation. Finally, as you know, taking unplanned action is never wise; calmly preparing and executing a plan is always more effective, no matter what your goal may be.
2. Understand what “defamation” is, and what it is not: A simple working definition of “defamation” might be: a (a) material, (b) false (c) statement of fact (d) about another person (e) that damages their reputation (f) that is not among one of the permitted exceptions. It’s important that you understand a bit about defamation, at least the basics. We live in a society that prides itself on permitting free speech; since defamation is a kind of “speech that is punishable,” the law carefully limits what people can be held liable for saying, and not every bad thing a person says about another person is the basis for a lawsuit. Here’s a short primer on what the law considers defamation:
(a) First, an innocuous false statement, such as “John is blonde” when the truth is that “John is light brunette” would not be considered defamatory; even though false, in most circumstances it would be viewed as lacking a “materially damaging” nature. On the other hand, “John is a bank robber” would clearly meet the standard for “material.”
(b) Second, the uttered or written statement about you must be false; if someone expresses an unhappy truth about you, that is permitted, no matter how harmful or embarrassing.
(c) Third, in order for a statement to be defamatory, it needs to be a statement of fact, and not of opinion. “In my opinion, Bob is not a good doctor” is probably not defamatory. On the other hand, “Bob has made repeated errors of medical judgment,” if untrue, is a defamatory statement. That very sentence gave us victory in a defamation lawsuit in federal court some five years ago.
(d) Fourth, a defamatory statement is a statement about a particular person or company; statements about fictitious persons, or a whole race or religious group, or even a character in a movie that really, really resembles you, are probably not defamatory.
(e) Fifth, you have every right to protect your good name and reputation, but not to soothe your ego. So, if a person tells you, and only you, that she thinks you are dishonest, and no one else hears of it, and so it causes you no damages, the law would generally not permit you to make a claim. It’s like the proverbial tree that falls in the forest when no one is there: does it matter? Likewise, if someone says “I think he’s a bum . . . and a bastard,” get over it; such name-calling is generally below the threshold of claims of defamation.
(f) Finally, there are many circumstances in which false and damaging statements are permitted, with impunity, even though they might cause considerable damage to reputation. These include (i) court testimony, (ii) legislative debates, and (iii) tenure discussions. This is so because it has always been considered wise social policy to permit people to engage openly in such discussions, free of fear of retribution for what they say.
Incidentally, in most states defamation lawsuits need to be initiated within one year of the statement, whether it was uttered (we call spoken defamation “slander”) or written (which we call “libel.”)
3. Get the precise facts: If you have heard that a former employer has said bad things about you, do your best to assemble all the facts: precisely who said or wrote it, precisely what was said or written, precisely when it was said or written, precisely where it was said or written, and precisely to whom it was said or written. The more facts you gather, the better. While it may be hard to get the facts of the matter, and others may not want to “get involved,” you should at least try. In any later discussion, letter or court papers, no one will be impressed or motivated to resolve matters if you only have vague notions of what might have been said or written about you.
4. Assemble proof of the dissemination of the statement about you, if you can: In New York and many other states, tape recording telephone calls is 100% legal, so long as one party to the call is aware of the taping. In circumstances like these, we commonly advise clients that they may have their friends call their former employers seeking job references about them, while the tape recorder is recording away. Although most people don’t want to “get involved,” some people will be willing to provide either written statements or even sworn affidavits, provided they are asked to. In one case, we obtained a copy of a letter written about our client, with a “cc” at the bottom, proving that it was sent to other people. That one copy of that letter cost the former employer, a hospital, a settlement of $250,000.
5. Assemble a list of damages, or losses, if you are aware of any: If recently you have been denied any promotions, assignments, job interviews, job offers, client meetings, customer orders, or any other business objectives that you had been confident in achieving, put together a list of them. These may form the basis of any claim you might make, and any settlement you may negotiate.
6. Be careful not to defame your alleged “Defamer”: The one thing you don’t want to do is make a bad situation worse. If and when approaching a former employer about things you believe he or she said or wrote, bear in mind that you are saying something negative about them. It is better to raise the issue with questions (such as “It has come to my attention that you said . . . . Is that true?”) or by using hypotheticals, starting with “if” (such as “It has come to my attention that you may have said . . . If that is true, then . . .) It is also better to raise the issue in written form, rather than over the telephone or in person, because when expressing something in writing, there is a permanent record of exactly what you said. If orally presented, you may be accused of saying something that you did not say. Accusing someone of defamation is accusing them of misconduct; remember that.
7. Approach the alleged Defamer first: We strongly recommend approaching the alleged “Defamer” first, and in writing, asking for an explanation for what you have heard. Prepare a letter that is respectful, though expressing strong concerns, that contains just enough facts so that he or she can provide a knowing denial or admission with apology. Concentrate on what you have heard, and resist any request to reveal who told you. Don’t expect an admission, but the absence of a complete denial comes close, and his or her failure to answer or address the facts presented will tell you a lot.
If your goal is simply a cessation of bad statements about you, don’t be afraid to express that. If your goal is to receive remuneration for damages suffered, DO NOT mention that, and stay off that subject if at all possible. That is because, while attorneys can send “demand” letters asking for money in settlement, when non-attorneys do it, it can be mischaracterized as a form of extortion, which is a crime.
8. If that doesn’t work, next approach your former employer’s General Counsel: We have a general rule in our office: don’t contact someone’s attorney unless the attorney contacts you first. This situation is one of the few exceptions to that rule. If you don’t get satisfaction from your letter to your alleged Defamer, send a second letter to your former employer’s General Counsel, enclosing a copy of your first letter, asking that the General Counsel take all steps necessary to halt any further defamation, and that he or she conduct a thorough investigation of the matter. Defamation by an employee of the company may bring liability to both the employee and the company. In one case we handled, the General Counsel of a large securities firm immediately wrote us back saying, “If this was, in fact, said, it was done on personal time for which our company is not liable.” We considered that, effectively, an admission of guilt. The matter settled on behalf of two clients for one million dollars. If things are not resolved at this point, seek legal representation.
If you would like to obtain a Model Letter to Express Concern about Post-Employment “Bad Mouthing,” just [click here.] Delivered by email, instantly, right to your desktop printer.
9. Don’t hesitate in getting legal guidance or representation: We stand for the proposition that people should help themselves to the greatest possible degree. If, however, there arises a true threat to your reputation, especially regarding your character, integrity and honesty, then we strongly encourage you to seek legal advice as soon as possible. There is just too much at stake, and like the ringing of a bell, “once rung, it cannot be un-rung.” As noted above, legal and business issues relating to defamation can be confusing. It can’t hurt to have a steady, helping voice available to you.
If you would like to obtain a list of at least 5 experienced “employee-side” employment attorneys in your city, just [click here], delivered by email, instantly, right to your desktop printer.
10. Maintain a balanced perspective: Don’t focus on the past, unless it’s affecting your present and future: Every now and then, you will hear of people being critical of you. That’s to be expected. And every now and then, you are bound to hear of a former friend, or former colleague, who is speaking ill of you. No one is loved by all. How you react to jealous rants and the like will affect how people judge you, your character, and your professionalism. Indeed, not letting such criticisms and back-biting get to you will actually raise others’ perceptions of your professionalism. Bear in mind that not every fight needs to be fought. That is not to say that you shouldn’t be aggressive in protecting your reputation. Of course, you should. But wisely and with perspective. Always.
P.S.: We get more compliments on our 100-Point Pre-Resignation Checklist than we do for any of our Model Memos, Letters, Checklists and Agreements. To obtain a copy, for your Peace of Mind, all you need to do is just [click here.] Delivered by Email – Instantly!
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. One aspect of negotiating and navigating is preserving the good reputation you have earned over a lifetime. Risks to that reputation must be addressed; they will not go away by themselves. It takes more than luck to make that happen. It takes careful planning and vigilance, the essential ingredients in good negotiating.
Always be proactive. Always be creative. Always be persistent. Always be aware. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.
A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.