50-State Survey Employment Libel Outline

SURVEY OF [YOUR STATE] EMPLOYMENT LIBEL LAW
Survey Preparers
Name of Firm
Firm Address
Telephone; Telecopier
(With Developments Reported Through November 1, 200x)

GENERAL COMMENTS
[including comments or caveats regarding structure of local court system, the manner in which local cases are reported or cited, etc.]

1. GENERAL LAW



1. General Employment Law



1. At Will Employment.
   [including whether jurisdiction permits claims of wrongful discharge]



2. Elements of Libel Claim
   



1. Basic Elements.



2. Fault.
   [including whether jurisdiction distinguishes between issues of public and private concern; identification of matters found or not found to be "of public concern"; fault standard applicable in cases involving issues of private concern, including whether different standard is applied in cases involving public figure/official plaintiff as opposed to private figure plaintiff]



1. Private Figure Plaintiff/Matter of Public Concern.
   



2. Private Figure Plaintiff/Matter of Private Concern.
   



3. Public Figure Plaintiff/Matter of Public Concern.
   



3. Falsity.



4. Defamatory Statement of Fact.



5. Of and Concerning Plaintiff.



6. Publication.



1. Intracorporate Communication.
   [including circumstances in which publication within a company does or does not constitute publication for defamation purposes]



2. Compelled Self-Publication.
   [including whether jurisdiction has recognized claims of defamation by compelled self-publication and, if recognized, burdens of proof]



3. Republication.
   [distinguishing among original speaker's liability for its own republications, "foreseeable" republications by others, and the republisher's independent liability for its own republication]



7. Statements versus Conduct.
   [including extent to which jurisdiction permits defamation claims based on conduct, such as hand gestures or using an armed security guard to escort a discharged employee from the premises]



8. Damages.
   [including discussion of various damages available, e.g., general, compensatory, special, nominal, or any others recognized in your jurisdiction, detailing requirements for each]



1. Presumed Damages and Libel Per Se.
   [including whether jurisdiction permits presumed damages and the effect, if any, of Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) and Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985)]



1. Employment-Related Criticism.



2. Single Instance Rule.



2. Punitive Damages.
   [including applications, if any, of Dun & Bradstreet, supra]



2. PRIVILEGES AND DEFENSES



1. Scope of Privileges



1. Absolute Privilege.



2. Qualified Privileges.



1. Common Interest.
   



2. Duty.
   



3. Criticism of Public Employee.
   



4. Limitation on Qualified Privileges.
   



1. Constitutional or Actual Malice.



2. Common Law Malice.



5. Question of Fact or Law.



6. Burden of Proof.



2. Standard Libel Defenses
   [including definitions, examples, scope of defenses, and burdens of proof]



1. Truth.
   [including concepts of "substantial truth"/"substantial falsity"]



2. Opinion.
   [including extent to which courts apply privilege derived from Gertz, supra; effect of Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) on opinion privilege; and test used to distinguish opinion from fact]



3. Consent.



4. Mitigation.



3. RECURRING FACT PATTERNS

[including whether governed by statutory or common law and any applicable privileges]


1. Statements in Personnel File



2. Performance Evaluations



3. References



4. Intracorporate Communication



5. Statements to Government Regulators



6. Reports to Auditors and Insurers



7. Vicarious Liability of Employers for Statements Made by Employees



1. Scope of Employment.



2. Damages.



4. OTHER ACTIONS BASED ON STATEMENTS

[including whether plaintiffs may use these causes of action to circumvent requirements of defamation law]


1. Negligent Hiring, Retention, and Supervision



2. Intentional Infliction of Emotional Distress



3. Interference with Economic Advantage



4. Prima Facie Tort



5. PROCEDURAL ISSUES



1. Statute of Limitations
   [indicating if different limitation periods apply to defamation and slander; recognition of single publication rule]



2. Jurisdiction



3. Pleading Requirements