Tribal employers should be aware of the potential for defamation claims from both the perspective of the tribal employer and from the perspective of tribal officials and employees. Since both the tribal employer, and the officials and employees acting for the tribal employer, can get sued for defamation, looking at this risk from both perspectives is prudent.
The specific standards for defamation vary from jurisdiction to jurisdiction, but generally to establish a claim an employee has to prove: (1) the employer made a false statement; (2) to someone other than the employee; (3) the employer knew the statement was false or lacked reasonable grounds to believe the statement was true, and (4) the employee was damaged by the statement. The last element, damage to the employee, is typically the loss of a job or a suspension without pay.
Some jurisdictions permit claims for egregious defamatory statements which are inherently damaging to the employee’s character even when the employee cannot prove damages or harm to the employee’s character. Defamatory statements which can be inherently damaging label the employee a criminal or question the employee’s ethics or integrity. For example, in a performance evaluation, the employer gives a low score in the ethics category without any facts to support the claim of an ethical breach. In this instance, in some jurisdictions, the employee does not lose their job (no immediate economic consequence) but because of the severity of the defamatory statement, no monetary damages are required for a viable defamation claim.
Since true statements are not defamatory (cannot make a claim for defamation if the statement is true) the first recommendation for tribal employers is tell the truth.
Limit the flow of employer informations to persons within the organization, and more importantly to persons outside the organization.
Adopt a policy which prohibits knowingly or maliciously spreading false information.
Adopt a policy and protocol for responding to requests for references regarding former employees.
Performance evaluations must focus on the facts.
Provide training to management employees on the risks of hostile, aggressive and ego-driven emails and texts which likely include assertions which are not supported by fact.