Quoted on former employer job references and defamation

Much like Trace McSorely on his glorious touchdown last night . . .

Trace McSorley now is 7/11 with 94 passing yards to go along with this rushing touchdown tonight. He has the Ravens up 13-0 on the Eagles. Pretty solid for a guy who every single draft analyst said shouldn’t be in the league. #Ravens #PennState pic.twitter.com/3O80HnKP5Q

— Dylan Burd (@Sports_Burd) August 23, 2019

. . . sometimes, you gotta call your own number. Straight from the department of shameless self-promotion, check out this article in Business Insurance magazine, In the balance: Safety of minors vs. safety from lawsuits. The article addresses some of the issues employers face when a prospective employer seeks a job reference regarding a past or current employee.

Termination letter immunity in Pennsylvania

Just passing along an interesting tidbit that I stumbled upon while researching something else:

Consistent with a policy favoring private resolution of disputes between employers and employees, Pennsylvania law recognizes the absolute privilege of employers to publish defamatory matter in notices of employee termination. Thus, a letter articulating the reasons for an employee's termination which is published only to the employee may not be made the subject of an action in libel, regardless of whether the allegations of cause are true or false and regardless of the actual motive behind the dismissal. The purpose of the absolute privilege is to encourage the employer's communication to the employee of the reasons for discharge by eliminating the risk that the employer will possibly be subject to liability for defamation. Where the privilege is abused by the employer's publication of the defamatory material to unauthorized parties, the employer is no longer immune from liability. 

Miketic v. Baron, 675 A.2d 324, 327-28 (Pa. Super. Ct. 1996) (quoting Yetter v. Ward Trucking Co., 585 A.2d 1022 (Pa. Super. Ct. 1991), alloc. denied, 600 A.2d 539 (Pa. 1991) (add'l citations omitted).

A later decision held that the privilege was not abused/waived where the letter was signed by four people, "all of whom had an interest in the letter." Davis v. Res. for Human Dev., 770 A.2d 353, 358 (Pa. Super. Ct. 2001).

Noncompete Defamation Leads to Six-Figure Verdict

Today's post is a cautionary tale for employers. If you're going to enforce a noncompete... you'd better make sure the employee in question actually signed a noncompete. A $123,000 jury verdict from Pennsylvania drives the point home. Kitchen v. McGrath Technical Staffing, Inc., Case No. 09-06-01259 (Phila. Cty. March 2, 2011).

In that case, an employer terminated one of its employees, who then started working for a competitor. The employee/plaintiff alleged that his ex-employer began sending him, and his new employer, harassing letters claiming that the employee was bound by a noncompete. The president and HR director even signed an affidavit attesting to the fact that the employee signed a noncompete. The new employer then terminated the employee.

Well, there's just one problem... the employee never signed the noncompete. He testified that he was presented with one but refused to sign it. At trial, the HR director admitted that he never signed it but claimed that at the time they thought he had. That was enough for the jury to award the plaintiff six figures.

Sidenote: The plaintiff's claims were defined as Defamation, Interference with Contractual Relations, and Invasion of Privacy.

Source: Pennsylvania Jury Verdict Review & Analysis, Vol. 26, No. 6 (May 2011).

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Lawyer Accused of Sexual Harassment Wins $1.55M - COTW #3

Ordinarily, I wouldn’t pick a California trial court verdict as the Case of the Week, but this one is hard to pass up. It includes sex, texts, and videotape. It pits paralegal against attorney. And it has a surprise ending that would make M. Night Shyamalan proud.

Alison Moreno was a paralegal working for attorney Thomas Ostly. The two had some sort of sexual relationship, which at some point ended. Ostly claimed she was fired because she refused to continue the relationship, and filed a sexual harassment lawsuit. Let’s cut to the twist ending. The jury entered a $1.55 million verdict… against Ms. Moreno!

Why? Well, she decided to tell people Mr. Ostly was a sexual predator who would sometimes bill clients for time he spent shopping online (Correction 8/25/10: It was Mr. Ostly who alleged that Ms. Moreno took advantage of their relationship and that she would shop online while billing him. My apologies for the error.). If those nasty allegations are untrue, then that’s a little thing we call “defamation.” And defamation was just the counterclaim that led to Mr. Ostly’s big money verdict. (Update 8/25/10: The jury found her statements per se defamatory).

There were apparently reams of transcripts from texts and IMs, including a quote from Mr. Ostly that Ms. Moreno can’t record his IMs because, "I refuse to give you any evidence for the inevitable lawsuit." Another odd aspect of this trial was Mr. Ostly’s decision to conduct the videotaped depositions of Ms. Moreno himself. A bold move that some experts speculated would backfire.

Mr. Ostly was helped by attorney Shane Anderies who pitched this as a case of abusing the system: “The system is not to be used improperly," he said. "The system is to be used for legitimate claims." A $1.55M counter-verdict sure provides an incentive to use the system properly I guess!

Citation: Moreno v. Ostly, Alameda County Superior Court (August 2, 2010).

Case of the Week is a weekly feature. On Fridays (a little early this week) I will cover a particularly important, fun , or interesting employment law case. This is entry #3. All Case of the Weeks are tagged COTW.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.