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Fifth DCA Rules on Defamation Inside a Company

What happens when an employee is allegedly fired and defamed to other employees?

The Fifth District (Cobb, Monaco, and Evander) recently issued an opinion in Luz Angela Lackner v. Central Florida Investments, Inc. (CFI).  You had to be fast to see it since it was withdrawn the same day — although selected and circulated by Florida Law Weekly in their daily electronic blast.  The opinion was held pending a question about whether a magistrate could preside over a jury trial.  Nonetheless, we discuss the substantive decision which apparently is not going to change regardless of the ruling on the presiding judge.

The Plaintiff was a time share salesperson who was paid on commission.  In one sale, she claimed she wasn’t paid enough commission; her employer felt she was unjustified in claiming any portion of the commission and terminated her for dishonesty.  The opinion suggests that termination-for-dishonesty was shared with at least one other employee.  There apparently was no tangible claim for actual damages.

Before we get into the case, which lacks background law, here’s a very basic primer.  

“Defamation” is a tort which includes both slander (spoken) and libel (written).  In this instance, the subject person is a private individual and not a public figure.   As for elements, there needs to be a false statement, published/shared with a third party, requisite intent (negligence or malce), and damages.  

Florida Statute 768.095 provides that employers have a qualified immunity for statements about former employees.  The qualified immunity is limited to audiences of prospective new employer(s) for the former employee and current employees.  There also is a heightened standard to prove fault: “clear and convincing” evidence that the information was knowingly false or violated civil rights under Chapter 760.

Back to our case.  The Fifth DCA found that the trial court had erred in granting the defendant’s motion for directed verdict based upon the evidence that one current employee had heard something about termination due to dishonesty.  The court held that statements made with malice to current employees could overcome the qualified immunity/privilege (if it existed).

Although the issue of damages was not fully explained, the court held that “even in the absence of actual damages, a defamatory allegation in respect to a person’s profession is actionable per se.”

As a side note, we noticed that oral argument was mid-March and the opinion was scooted out within three weeks.

Again, the opinion was formally withdrawn the same day it was issued; you can track the developments of the case here.

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