7.10 WORK-RELATED DEFAMATION
7.1001 In General. Defamation claims play an increasingly important role in Virginia employment litigation. While defamation causes of action previously tended to represent "add on" claims appearing near the end of plaintiffs' complaints, they now frequently form plaintiffs' main claims and appear as the first count rather than the last count. Reflecting the increasing importance of defamation claims, several Virginia Supreme Court cases have dealt with work-related defamation issues.
There are two main types of statements that might generate defamation issues in the workplace. First, communications inside the company about an employee's job performance might generate a defamation case. These could either be official job evaluations or informal statements (including gossip). Second, a company's or employee's statement outside the company might generate defamation claims. These usually involve responses to job reference calls about former employees (although even current employees might be the subject of calls from lending institutions).
Work-related defamation usually does not involve some of the basic defamation issues highlighted in nationally prominent cases, such as the burden facing public figure plaintiffs or media defendants but often does involve other core defamation issues. These include publication, defamatory meaning, and opinion and imputed liability.
7.1002 Federal Labor Law Preemption. 548 In a case arising in Virginia, the United States Supreme Court held that federal labor laws preempt the Virginia "insulting words" cause of action for ugly statements made during a strike. 549 The Court has applied essentially the same principle to all state defamation laws. 550
In the years since those decisions, federal courts have continued to find defamation claims preempted by federal labor laws if they amount to unfair labor practice charges presented in the guise of state common law. 551 Preemption sometimes affects the remedy. For instance, one court held that a
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plaintiff alleging labor-related defamation must prove actual damage and may not rely on a state common law presumption of damage. 552
A 2008 Eastern District of Virginia decision dealt with plaintiff Smith-field Foods' RICO and various state law claims against a union. In concluding that Smithfield was a public figure for purposes of applying the constitutional malice standard to what the court called "non-reputational torts," the court explained that
[o]rdinarily, a defendant bears the burden of proving the plaintiff's public figure status. In the context of labor disputes, however, the requirement that the plaintiff be a public figure in order to trigger the 'falsity' and 'actual malice' requirements of New York Times has been eliminated. . . . This conclusion obviates Smithfield's asserted need for an "evidentiary hearing" on the issue of whether it can be deemed a limited-purpose public figure in this...
