The publication, whether oral or written, of false criticism of poor performance, incompetence, or dishonesty—whether made in the context of a performance review or as the employer’s stated reason for the employee’s termination—is defamation per se. Employers often argue that they are immune from liability for these statements based on the defense of “conditional privilege,” which grants immunity against defamation for communications made on subjects of mutual interest (i.e. publisher makes the defamatory statement to a person who has a common interest in the subject matter of the statement).

 Many employers often misinterpret this conditional privilege as some kind of absolute privilege. Far from it, the conditional privilege can be overcome if a plaintiff shows that the communication was either motivated by malice, or an abuse of the conditional privilege.

Malice is a complicated concept and one that judges and lawyers often get wrong. Generally, for purposes of showing an abuse of the conditional privilege, malice only requires a showing of a state of mind arising from hatred or ill will evidencing a willingness “to vex, harass, annoy or injure.” Burnett v. Nat. Enquirer, Inc. (1983) 144 Cal.App.3d 991, 1009; Mocom v. S.F. Shopping News (1935) 4 Cal.App2d 284, 2909; Davis v. Hearst (1911) 160 Cal. 143, 157-163. Some common ways to demonstrate malice is by showing that:

•  The publication was motivated by anger and hostility, or hatred, or ill will toward the employee (Widener v. PG&E (1977) 75 Cal.App.3d 415, 436);
•  The publication was excessively published (Rancho La Costa, Inc. v. Superior Court (1980) 106 Cal.App.3d 646, 665-666);
•  The publisher lacked reasonable grounds for belief in the truth of the publication (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 418);
•  There was a failure to investigate thoroughly and verify the facts of the defamatory statement (Rollenhagen v. City of Orange (1981) 116 Cal.App.3d 414,423);
•  The publication was made with knowledge of its falsity (MacLeod v. Tribune Pub. Co. (1959) 52 Cal.2d 536, 552);
•  The publication contained exaggerated, overdrawn or colored statements to the detriment of plaintiff or are not stated fully and fairly with respect to the plaintiff. Shumate v. Johnson Pub. Co. (1956) 139 Cal.App.2d 121, 138.

Subject to a showing of malice, the employer may be liable for defamatory statements he or she published about an employee’s work performance.