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INSIGHT: Don’t Say This in the New Workplace

June 15, 2020, 8:01 AM

Life with Covid-19 will eventually normalize: People will venture beyond their homes. Sports and entertainment will return. Stores will reopen.

Business will resume too, with an even stronger emphasis on online and virtual information exchange. But communicating from behind computer or phone screens (e.g., live video or instant messaging), even before potentially wide-spread audiences, will naturally drop the guardrails on safe speech. The risk of injuring reputations and violating employment or labor laws will increase. Certainly, we have already seen a rise in online shaming, trolling, and cyberattacks.

So, when we return to work, continue to think before you email, post, or zoom.

Here are five things not to say to avoid defamation and other liability in the new workplace.

1. “Peter Has Covid-19.”

According to Black’s Law Dictionary, defamation is the “act of harming the reputation of another by making a false statement to a third person … A false written or oral statement that damages another’s reputation.”

In many states, falsely accusing someone of contracting a loathsome disease is defamation per se—a stronger form of defamation that can lead to automatic damages and legal implications.

Does coronavirus fit in this category? Maybe not, if courts construe loathsome disease to mean “socially repugnant” like venereal diseases.

But in some states, defamation per se is not limited to false accusations of a loathsome disease. Contagious disease also counts. And given that coronavirus or Covid-19 is extremely contagious, falsely accusing Peter of Covid-19 could be defamation per se.

For employers, there is less debate here. The Americans with Disabilities Act protects employee medical information if it was solicited through a medical inquiry or medical examination, such as mandatory body temperature and saliva testing in the coronavirus or Covid-19 context.

Wrongful disclosure of Peter’s condition could lead to company liability.

2. “Peter Gave Me Covid-19.”

Defamatory statements include statements made by inference or implication. This statement implies that Peter has or had the contagious disease. It could be defamation per se and invade his privacy interest the same as statement #1.

Moreover, if the context of the statement suggests that Peter passed along the disease intentionally or negligently, it could tend to lower Peter’s reputation in the community, impact his employment relationships, and deter others from associating with him—the basic test for whether a statement is defamatory.

In a comparable case in Philadelphia, a lawyer sued a jogger for falsely posting on Instagram and Facebook that he purposefully endangered her health with coughing.

In another case, conspiracy theorists falsely accused a U.S. Army reservist and mother of two of starting the coronavirus pandemic.

For employees, circulating rumors or false statements about a co-worker, whether in the workplace, on social media, or elsewhere, may result in getting demoted or fired. This is particularly true in the employment “at will” context where employers are ordinarily at liberty to discipline or terminate employees at any time for any lawful reason.

Telling your office mates that Peter gave you Covid-19 is a bad idea.

3. “I Have Covid-19.”

In general, you can’t defame yourself (as a matter of law). But falsely telling your employer that you have Covid-19 could lead to civil liability and criminal charges.

Take, for example, the March 2020 story about an employee who falsely told his “critical manufacturing” company that he tested positive for Covid-19. The employee went so far as to submit what looked like legitimate medical documentation from a health-care provider.

Before discovering the truth, the company shut down operations to disinfect and sustained losses of $175,000. Co-workers exposed to the supposedly coronavirus infected employee stopped working and self-quarantined.

No doubt the employee is at risk of losing his job, civil liability to his company and co-workers, and a criminal indictment.

Similar stories continue to make the news.

4. “Peter Refuses to Wear a Face Mask or Keep His Distance. Here’s a Video.”

Falsely accusing Peter of flouting Covid-19 safety guidelines could be defamatory. The accusation might expose him to hatred, ridicule, or contempt. It might also qualify as defamation per se if it involves a crime or immoral, unethical, unprofessional conduct.

Falsely shaming Peter online with a video adds insult to his reputational injury. It may give rise to a separate false light claim, which requires publication of highly offensive or embarrassing information and not direct, false statements.

In the workplace, an employee may be disciplined or fired for not only talking about another employee (see statement #2) but for shooting video at work. Many employers prohibit video or other recordings to protect workplace privacy and company information.

Under federal law, strict prohibitions on workplace recordings, however, can run afoul of employee rights to engage in protected concerted activity under Section 7 of the National Labor Relations Act (NLRA), which allows employees to communicate about things like workplace safety.

5. “Initech Doesn’t Follow the Covid-19 Guidelines.”

This statement could be defamatory, indeed defamation per se, the same as statement #4.

Further, false accusations directed at companies like Initech could lead to additional liability for disparagement (aka “trade libel”), tortious interference, and false advertising / Lanham Act violations.

In one recent example, a Connecticut restaurant sued a mayor for falsely accusing it of endangering the health and welfare of its community and customers by violating Covid-19 shut-down orders. The restaurant says that politics, not health concerns, motivated the defamatory attacks.

Again, in the workplace, “at will” employees risk losing their job for making statements about their fellow employees or employers. It may not matter that the statements—here, Initech’s noncompliance with Covid-19 laws or guidelines—are true.

Still, Section 7 of the NLRA and the Occupational Safety and Health Act could offer some protection if the statements concern workplace law and safety. That protection may even extend to retaliatory actions for opposing, reporting on, or refusing to follow company policies or practices, as one recent Covid-19 legal complaint in Illinois suggests.

The days are numbered for in-person business meetings. Online and virtual communications will become the norm. They allow us to get back to work safely. For some, they even offer a better work-life balance.

More frequent use of cyber communications in the workplace, however, presents opportunities to defame or violate employment laws. People will get used to saying the first things that come to mind, especially when they don’t have to confront their audience or target in person.

But Peter and Initech are listening. They may not like what they hear in the new Office Space (1999).

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Joe Meadows is a former DOJ trial attorney and current litigation partner with Bean, Kinney & Korman in Arlington, Va. He focuses on internet defamation, cyber-attacks, and business dispute matters.

Doug Taylor is an experienced employment law partner with Bean, Kinney & Korman in Arlington, Va. He focuses on management-side employment law for businesses, higher education organizations, nonprofits, and individuals on a wide range of federal, state and local matters.

Any views expressed herein are those of the author(s) and are not necessarily the views of any client.

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