South-Western Legal Studies in Business

Employer Not Liable for Negative Comments about Employee Performance
Description

Rhode Island high court held that the former supervisor of an employee, who gave the employee a negative job recommendation, was protected against a claim of defamation by qualified privilege to pass on such judgment.

Topic Employment Law
Key Words

Defamation; Qualified Privilege

C A S E   S U M M A R Y
Facts

Kevorkian worked as a nurse at a nursing home for five years. Glass was her supervisor. When Glass disciplined Kevorkian for not dispensing necessary medications to patients, Kevorkian quit and found work elsewhere. Later, she had Mercury Medical, a placement agency for nurses, try to find her other work. Mercury sent Glass a reference form. When Glass returned it, she checked the box that she would not rehire Glass and, as to why she would not hire her, Glass wrote that Kevorkian had "unacceptable work practice habits." When Glass had a hard time getting another job, she read the reference form and sued Glass and the nursing home for defamation. The trial court granted defendants summary judgment. Kevorkian appealed.

Decision

Affirmed. To succeed in an action for defamation, the plaintiff must prove: 1) the utterance of a false and defamatory statement concerning another, 2) an unprivileged communication to a third party, 3) fault amounting to at least negligence, and 4) damages. Privileges exist in two forms: absolute and qualified. Qualified privilege exists if the publisher makes the allegedly defamatory statements in good faith and reasonably believes that he has a legal, moral, or social duty to speak out, or that to speak out is necessary to protect either his interest, those of third parties, or, in certain instances, of the public. No malice was shown on the part of Glass. When she disciplined Kevorkian, no rebuttal for the bad performance was given. She could not rebut the presumption that there was a performance problem.

Citation

Kevorkian v. Glass, ---A.2d--- (2007 WL 137689, Sup. Ct., R.I., 2007)

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