Fired employees are often a source of problems for a business, especially when those ex-employees choose to bad-mouth their former employer. While some employers may simply ignore allegations that terminations were based on racism, sexism or ageism, other employers choose to take legal action.

One such employer is Overhill Farms, Inc., which chose to terminate employees who failed to provide correct social security numbers. The employer gave the employees an opportunity to provide the social security numbers after the IRS had notified the employer of the erroneous numbers.  The fired employees claimed that this was merely a pretext for their dismissal.

The ex-employees publicly charged the employer with racism, sexism and ageism in written materials and in demonstrations.  The employer sued the ex-employees for defamation.

In response, the ex-employees filed an Anti-SLAPP special motion to strike, alleging that the employer’s lawsuit was designed to squelch their First Amendment free speech, petition and assembly rights.

The trial court denied the ex-employees’ motion, thereby allowing the employer’s lawsuit to continue.

The ex-employees appealed, but the decision of the trial court was affirmed by the California Fourth District Court of Appeal, Division Three in a 2 – 1 decision.  The court held that the plaintiff-employer should be given the opportunity at trial to show that the ex-employees’ allegations are demonstrably false assertions of fact masquerading as opinion. This case demonstrates that employers should have less fear that an Anti-SLAPP motion will be granted when unfounded charges are made that may be disproven at trial. (Overhill Farms, Inc. v. Lopez, G042984, Dec. 14, 2010 (DOC/PDF).)

Might current and former employees who trash employers online (e.g., My Space, Facebook, etc.) face a similar fate?  Perhaps.  While most employers won’t waste their time and money, some might decide that a lawsuit is necessary to protect their reputations if the criticism is false and sufficiently damaging.  Many employers know that certain kinds of allegations are a tool to force businesses to cave in to certain demands.  Now employers know that litigation may be an viable tool, even when (ex) employees cry “First Amendment!”

James J. Manning, Jr. (“Jim”)  is a Senior Partner at the Riverside (CA) based law firm of Reid & Hellyer.  His media law practice includes defending newspapers, large and small, throughout Southern California.

Photo Source: Photobucket.

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