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My friend, and brilliant analyst, radio, tv and new media commentator and venerable litigator, Ron Coleman, focused a post on his blog, Likelihood of Confusion, on a very dangerous libel decision made by the First Circuit Court of Appeals.

In part, from the Citizen Media Law Project:

“Last Friday (February 13, 2009) , the First Circuit Court of Appeals upended the generally accepted notion that U.S. defamation law does not impose liability for truthful statements. In Noonan v. Staples, a three-judge panel of the federal appeals court in Boston held that Alan Noonan, a former Staples employee, may hold the company liable for defamation based on a truthful email a superior sent to employees explaining the reason for Noonan’s termination, so long as he can prove that the email was sent with “actual malevolent intent or ill will.”

According to another friend, Robert Ambrogi, renowned lawyer, law professor, executive director of the Massachusetts Newspaper Publishers Association and more credits than I have room for on this blog, “This may be the most dangerous libel decision in decades.   Be very, very afraid — of this precedent. If ill will is all that is needed to turn a truthful statement into libel, then everyone is a potential defendant.”

We’ve previously written articles on employee hiring and firing rules and regulations, in relation to employee integrity investigations conducted by our firm, Beacon Network Investigations, Inc., (BNI). We’ve generally advised employers to instruct their HR personnel to confirm only the subject’s employment dates and position if a reference is requested by a potential future employer.   The premise for a former employer in not discussing or in any way intimating the reasons for the fired employee’s departure is to avoid a defamation lawsuit, and potentially, any other number of damages that can be cited, any of which can claim to have interfered with the fired employee’s ability to obtain work.

This recent decision by the First Circuit of Appeals throws any and all possible caution that an employer may take to avoid a similar type suit to the wind, leave alone it’s encroachment on freedom of speech.  Unless the fired employee in this action was planning on reapplying to Staples, internal disclosure of the firing decision does not affect Mr. Noonan’s ability to get another job anywhere else. It defies logic that co-workers are not going to discuss an employee’s departure.  Also, in that the actions that led to Mr. Noonan’s firing were openly discussed intra-company, this availability of information can potentially prevent additional firings for similar actions. This transparency additionally serves as a tactful reminder to employees that work is an opportunity; not an entitlement.

The most probable immediate reaction to this recent FCCA decision will be to inspire work environment paranoia and a negative productivity effect. You don’t need a sociologist to tell you that people are more productive at work when they socially interact (water cooler talk, lunching together, the occasional office birthday cake…) and when they are afforded the respect of the truth. Acting as if an employee simply disappeared into thin air or having the wrong rumors run rampant throughout the company is detrimental to the organization’s ability to manage its staff.   Staples is not a government agency.  (They haven’t jumped on the bailout gravy train yet, have they?)   The company sets its own management policies.  This decision is just plain wrong. I can see the deluge of social network subpoenas now on the quickly obscuring horizon between libel and freedom of speech.  If truth is no longer an absolute defense, we should probably stop communicating altogether and certainly never attempt to defend ourselves.

Filed under: Legal Decisions | Tagged: employee, employees, firing, First Circuit Court Of Appeals, HR, Noonan, Staples | Leave a Comment »