What to say – and not to say – about an employee’s termination

My last column[1] addressed challenges an employer faces in establishing that a former employee violated a nondisclosure agreement by making anonymous general comments about the employer’s plans on social media. This column focuses on a recent case that demonstrates challenges an individual faces in suing his former employer over a post-termination announcement.

Dov Charney, the founder and then-CEO of American Apparel, was dismissed by the company’s board following an investigation into aspects of Charney’s conduct. Investment firm Standard General issued a press release supporting what the firm called the “independent, third-party and very thorough investigation into the allegations against Mr. Charney” and expressing “respect” for the board’s decision to dismiss Charney “based on the results of that investigation.”

Charney sued Standard General asserting several claims, all of which depended on the press release being defamatory. Defamation is the utterance or publication to others of a false, unprivileged statement of fact about a person that has a tendency to harm the person’s reputation. Charney asserted that the press release falsely stated that the investigation had been “independent” and had suggested that Charney had committed specific kinds of misconduct.

The trial court and then the court of appeal dismissed Charney’s lawsuit, finding that there was not even “a minimal chance” his claims ultimately would succeed. The court of appeal concluded that the statement in the release about the independent nature of the investigation could not be defamatory because the statement was not about Charney, but about the investigation. Anyway, it was a statement of opinion, not fact.

The court rejected Charney’s allegation that the press release falsely suggested he had engaged in specific kinds of misconduct. The release said nothing specific about why Charney was terminated, though it did say that certain “allegations” were made about him, investigated, and that he was thereafter terminated. The court of appeal added that, even if the press release could be interpreted as saying Charney was fired for unidentified misconduct, a dispute over whether “improper” conduct justified his termination was a matter of opinion, not a matter of provably false fact.

Just as an employer suing a former employee for post-termination disclosure of company secrets must prove that what was disclosed was legally a trade secret, an individual suing over post-termination public statements his former employer made were defamatory must show that the statements were at least: (1) about the individual and (2) a matter of fact, not of opinion.

The takeaway from this is not that an employer may say anything about the circumstances of an employee’s departure as long as the statement is framed as opinion rather than fact. For one thing, the line between fact and opinion is not always clear.

Instead, the prudent employer will be careful about: (1) who is told anything other than that the employee is no longer with the company; (2) what information is conveyed; and (3) how the information is conveyed. Generally, the fewest number of people should be told why an employee left and should be told in a way that makes it least likely the information will spread. When a key operational employee leaves, the employer should focus the message on the future: who will be responsible going forward and how the operation will change.

That guidance will not always apply. Sometimes, particularly in the aftermath of dismissals for ethical misdeeds, it may be appropriate to send a general reminder about the policy violated and the consequences for violating it. Assuming that the former employee will learn whatever is said, however, the message and the recipients should be limited. And that in turn will limit the risk.

Dan Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is an instructor at the San Diego State University Fowler College of Business Administration where he teaches classes in business ethics and employment law. He may be reached at eaton@scmv.com[2]. His Twitter handle is @DanEatonlaw[3].


  1. ^ last column (www.sandiegouniontribune.com)
  2. ^ eaton@scmv.com (www.sandiegouniontribune.com)
  3. ^ @DanEatonlaw (twitter.com)

Source URL: Read More
The public content above was dynamically discovered – by graded relevancy to this site’s keyword domain name. Such discovery was by systematic attempts to filter for “Creative Commons“ re-use licensing and/or by Press Release distributions. “Source URL” states the content’s owner and/or publisher. When possible, this site references the content above to generate its value-add, the dynamic sentimental analysis below, which allows us to research global sentiments across a multitude of topics related to this site’s specific keyword domain name. Additionally, when possible, this site references the content above to provide on-demand (multilingual) translations and/or to power its “Read Article to Me” feature, which reads the content aloud to visitors. Where applicable, this site also auto-generates a “References” section, which appends the content above by listing all mentioned links. Views expressed in the content above are solely those of the author(s). We do not endorse, offer to sell, promote, recommend, or, otherwise, make any statement about the content above. We reference the content above for your “reading” entertainment purposes only. Review “DMCA & Terms”, at the bottom of this site, for terms of your access and use as well as for applicable DMCA take-down request.

Acquire this Domain
You can acquire this site’s domain name! We have nurtured its online marketing value by systematically curating this site by the domain’s relevant keywords. Explore our content network – you can advertise on each or rent vs. buy the domain. Buy@TLDtraders.com | Skype: TLDtraders | +1 (475) BUY-NAME (289 – 6263). Thousands search by this site’s exact keyword domain name! Most are sent here because search engines often love the keyword. This domain can be your 24/7 lead generator! If you own it, you could capture a large amount of online traffic for your niche. Stop wasting money on ads. Instead, buy this domain to gain a long-term marketing asset. If you can’t afford to buy then you can rent the domain.

About Us
We are Internet Investors, Developers, and Franchisers – operating a content network of several thousand sites while federating 100+ eCommerce and SaaS startups. With our proprietary “inverted incubation” model, we leverage a portfolio of $100M in valued domains to impact online trends, traffic, and transactions. We use robotic process automation, machine learning, and other proprietary approaches to power our content network. Contact us to learn how we can help you with your online marketing and/or site maintenance.