Avoiding Liability for Communicating Information on Managerial and Professional Employees

Companies regularly need to communicate information about their employees’ performance to a variety of people who need to know; internally to co‐workers involved in audits or evaluations, and externally to customers and clients, the media, and prospective employers seeking references. Where the information is negative, companies fear the backlash of defamation lawsuits from employees. If the employees are themselves managers or professionals, the quantity and quality of information, the need for its disclosure, and the magnitude of the legal threat all rise. Highly publicized defamation cases have prompted a wave of no or limited comment policies. By reading brief case synopses illustrating the various communications settings, managers can gain a more accurate sense of the practical dynamics and law of employee disclosure. They can then better evaluate the view that the risk reduction offered by no‐comment policies does not justify the adverse effect on their own companies, their productive employees, and other stakeholders in accurate information. Managers can create policies and procedures that make both business and legal sense.