If my boss recorded false statements in my personnel file, is this libel?
UPDATED: February 7, 2020
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If the offending material reflected only opinions, it would not be libelous. A statement such as "this employee is not ready for promotion" reflects the supervisor's opinion only and will not be grounds for legal action.
However, if the material asserted and reflected facts, and those facts are wrong, the employer may be liable for defamation. For example, if your personnel file contains a false statement that you did something dishonest like stole money and are not to be trusted with the keys to the cash register, this may be considered a defamatory comment.
If you feel the file contains defamatory remarks that have caused you some harm, you can bring suit against your employer. To win damages in a lawsuit, you will have to prove that the statement, and any underlying support for it, is false. The element of harm must be present though, to be successful in court. This could be, for example, that you were fired as a direct result of the false statements and that because of the accusations, other employers in the industry do not want to hire you.
The most important first step after realizing that false statements were made in your personnel file is to counter-document the lie. In other words, make an official written statement with your HR representative or boss (ideally, if you have more than one boss, go to the one who did not make the statements; but if this is your only option, it's important that you still confront them with an official statement). Write down that you deny the actions and that you request them be stricken from your professional record. Courts, as well as unemployment agents, always want to see things in writing—everything needs to be documented.
If you do plan to sue, the best possible scenario would be to get a confession of the lie from your boss. This is likely not possible so at least having a record made by yourself, or other employees, that the incident recorded by your boss never took place will help prove your case.
For defamation to be proven there are four elements that must be shown:
- That the statement was false;
- That there is no doubt you are the person being referenced (in this case, if it is your personnel file, this should be easy to prove);
- That the information was communicated to a third party; and
- That you suffered injury to your reputation.
The element of injury requires the libelous comment about you to have had a significant negative impact on your reputation. Just having other co-workers think badly of you, however, does not satisfy this element. The injury to your reputation will have to be significant enough to have caused you to be fired and unable to obtain employment in your industry or to be socially ostracized as a result of the rumor.
If you believe you may be harmed by false, libelous statements made in your employment record, contact an experienced libel and slander attorney in your jurisdiction right away.