Conduct Unbecoming

CONDUCT UNBECOMING:  HOW TO AVOID "DEFAMATORY CONDUCT"
Arthur P. Murphy, Esq. and Quinn H. Vandenberg, Esq.
HR ADVISOR
March/April 2005

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COMMENTS FROM THE SENIOR EDITOR OF THE HR ADVISOR

  HOW TO AVOID DEFAMATORY CONDUCT   Our friend and Editorial Board member, Arthur Murphy, along with his colleague, Quinn H. Vandenberg, address an issue that gets too little attention in today's workplace, yet has the potential for exposing the employer to a large damages award: defamation by conduct. Think about it - when was the last time your company's Security personnel escorted an employee off the premises while an investigation was still pending?  Did you ponder whether such action might be construed as defamatory?  While state laws will differ on this subject, today's HR professionals must be aware of conduct that can give rise to such claims.  Since increasing numbers of state courts have found that mere conduct alone can support a defamation claim, your HR team must be able to train managers to avoid engaging in behaviors that give rise to defamation by conduct claims. As Messrs. Murphy and Vandenberg explain, any conduct that could impute incompetence, unworthiness of continued employment, or dishonesty to the employee may, depending upon the circumstances, be considered defamatory.  After you read this article, the occasions when you have Security remove an employee from the worksite and escort him/her out of the building "pending investigation" will be few. Similarly, you will think twice before completely deactivating an employee's access to the computer system while the investigation is pending. This is one thought provoking piece.

FREDRIC C. LEFFLER is Senior Counsel at Proskauer Rose LLP in the firm's New York City office. His practice is devoted exclusively to labor and employment law issues in defense of employers.