In an earlier blog entry, we discussed how the publication 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. An employer may be liable for such defamatory statements subject to a showing of malice. Here are some examples of what California courts have held to be defamatory criticism of work performance:

•  Bank loan officer was accused of being “terminated because he was not following standard operating procedures regarding loans, lacked regard for customer’s privacy, and the bank had received a number of customer complaints about him.” Prevost v. First Western Bank (1987) 193 Cal.App.3d 1492, 1497.                                                                                                                                                                        
• Corporate officer accused of “making false statements,” using “his office to obtain revenge,” being a “black sheep,” “unscrupulous,” using “lies and hypocrisies,” having “desire for power” causing “him to act without reason,” being a “parasite in the organization who did nothing,” “proud, snobbish and vain,” “insane in command,” “irresponsible,” and “unable to assume responsibility and direction of groups.” Correia v. Santos (1961) 191 Cal.App.2d 844,854.                                                                                                                                
• Manager discharged as a result of internal complaint to HR department of accusations of “sexual harassment and other improprieties.” Cruey v. Gannett Co. (1998) 64 Cal.App.4th 254,257.                                                                                                                                      
• Lawyer was a “crook,” “thief” and running a “scam.” Albertini v. Schaefer (1979) 97 Cal.App.3d 822, 834-835. • Businessman was “out for a fast buck,” which court stated is meant to describe a “businessman of questionable ethics.” Cameron v. Wernick (1967) 251 Cal.App.3d 890, 849.                                                                                                                                                                                             
• Former employee terminated because he “misused company funds,” “falsified invoices,” and was “ineligible for rehire.” Kelly v. General Telephone Co. (1982) 136 cal.App.3d 278,284-285.                                                                                                                                      
• Office manager was “behind in her work,” “stealing money from the company” and “conspiring to steal money,” and worked a health insurance deal “to the detriment of other employees.” Davaris v. Cubaleski (1993) 12 Cal.App.4th 1582, 1586-1587,

This is not an exhaustive list. In sum, any false criticism of work performance can be defamatory if, upon its face, it “has a natural tendency to injure a person’s reputation, either generally, or with respect to his occupation.” Washer v. Bank of America (1943) 21 Cal.2d 822, 827.