STICKS AND STONES MAY BREAK MY BONES BUT NAMES WILL NEVER HURT ME
Remember that little saying from your childhood?
My Mommy told me to say that to anyone who made fun of me, my permed hair, braces, or bad skin.
I thankfully have blocked out a great deal of my childhood and so I cannot attest to whether I ever actually said these words as a retort, which is good.
But now, as a lawyer who defends folks in business torts and employment litigation, the phrase seems ridiculous.
Names can hurt you.
Names can lead to lawsuits.
Names can break you.
What kind of names?
Here is a sampling of words, names, titles that could lead to business tort of defamation.
a. He is about to go under.
b. He can’t serve clients.
c. He is incompetent and can’t do the work.
d. That company won’t make it much longer.
e. Those guys are idiots, don’t hire them.
f. They all have herpes, don’t work with them (WHAT?).
So, what is defamation under Virginia law in the employment / business context?
Virginia recognizes two types of actionable defamation: defamation per se and defamation with proof of special damages. At common law, defamatory words are actionable per se if: (1) they impute to a person the commission of some criminal offense involving moral turpitude; (2) they impute to a person infection of some contagious disease; (3) they impute to a person unfitness to perform a job; and (4) they prejudice a person in his profession or trade. See Fleming v. Moore, 221 Va. 884, 275 S.E.2d 632 (1981).
For the alleged statements be defamatory in general terms, the inquiry is whether any such statement creates a substantial danger to one’s reputation or character. Fleming v. Moore, 221 Va. 884, 275 S.E.2d 632 (1981).
Further, under Virginia law, a claim for punitive damages under must entail actual malice: “that he knew the statements were false, or that he had reckless disregard for the truth.” Ingles v. Dively, 246 Va. 244, 253, 435 S.E. 2d 641, 646 (1993).
So if you can prove the words / names / etc, (1) hurt your business reputation, and (2) were untrue, you could have a defamation claim. If you can prove the words were said with malice on purpose, you could get punivite damages.
So, dear ex-employees who left on not so great terms, Names can hurt you. Be careful what you say – you don’t want to spend your time defending a defamation suit. Well, I like to spend my time doing this, but, you may not want to pay us for such assistance.