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Employers Have “Qualified Privilege” When Conveying Information about Employees

Q:  My employer included false information in my performance review.  Does Ohio law allow him to do that?
A:  As long as your employer did not know the information was false and did not act with reckless disregard as to its truth or falsity, he is generally free to express his opinion in a performance review, even if that information is false. In Ohio, employers are protected by what is called a “qualified privilege.” This privilege generally allows employers to freely communicate their thoughts about employees.

Q:  What is a “qualified privilege”?
A:  Qualified privilege means that the employer’s communication is protected by law unless:
* it was not for a legitimate purpose; or
* it was communicated to a person without a need to know; or
* it was made with actual knowledge that it was false or with reckless disregard as to its truth; or
* it was made for a discriminatory reason related to an employee’s race, religion, age, disability, national origin or gender.

Q:  If my employer knowingly communicated false information about me, is it considered defamation?
A:
  Possibly. Defamation is a false publication (either orally in writing) to a third party that:
* causes injury to a person’s reputation; and
* exposes the person to public hatred, contempt, ridicule, shame or disgrace; or
* affects the person adversely in their trade or business.

However, defamation does not include opinions unless they involve or imply false statements of fact.  

Q:  What can I do if my employer has communicated information that is both false and defamatory?
A:  If your employer communicated false information that is not privileged for any of the above reasons, you have one year in which to file a lawsuit. In such cases, the court can order an employer to end the false reports and award money for:
* injury to reputation and standing in the community;
* shame, humiliation and mental anguish;
* lost income, medical expenses, lost future earning capacity;
* punitive damages; and
* in some cases, attorneys fees and costs.

Q:  Assuming the information my supervisor provided on my performance review was false and negative but would not be considered “defamatory” because of “qualified privilege,” what can I do?
A:  As a practical matter, for any negative performance review, you should make a factual, objective and diplomatic response to the review and ask the human resource department to have it included in your personnel file.

Q:  I’ve never seen my personnel file, but I’m concerned it may contain false information.  Do I have a right to get a copy of my personnel file from my employer?
A: 
If you are an employee in private industry, there is no Ohio law that gives you the right to a copy of your personnel file unless there is an employment contract, employee handbook or collective bargaining agreement that says otherwise. Check with your human resource department to find out whether or not you are entitled to a copy of your file. However, if you are a federal employee, federal law specifically authorizes you to review your personnel records, and if you are a state employee, you may review and copy your personnel records under the Ohio Public Records Act.

11/27/2013

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was prepared by Fred Gittes, partner in the Columbus firm, the Gittes Law Group, and updated with help from Jeffrey Vardaro of the same firm.             

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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