I attended the CELA conference on September 25-26, 2015 at the Oakland Marriott. The conference included great programs on litigation strategies, updates on new statutes and cases and a very interesting program on defamation claims in employment litigation delivered on the afternoon of the seminar's first day. Defamation occurs in employment disputes more often than most people expect and it should play a strategic role in employment litigation.

When employees sue employers for wrongful termination, they assert that the employer's reason for termination or some other adverse employment action was specific and illegal. Employees may allege, for example, that the employer adversely acted against the employee on account of her race, religion, ethnicity, sex, sexual orientation, disability, or some other protected characteristic, or for having engaged in a legally protected activity like reporting an unsafe workplace, complaining that the employer failed to pay overtime, or provide lunch breaks. Employers often defend that they took adverse action against the employee for some other reason - one that is not illegal - like inadequate job performance, insubordination, or for violating company policy.

Defamation includes false accusations of inadequate job performance, insubordination, violating company policy and other actions that tend to impugn the employee in his profession. The employer is often pressured to explain: if the employee performed her job inadequately, who reported it and what was the specific inadequacy? Every communication of a derrogatory statement about the employee's job performance or things related to it may be a separate incident of defamation if it was capable of being proved true or false and is false. It also creates the interesting situation of shifting the litigation's burden of proof on key issues.  In an employment law claim, the employee bears the burden of proof to establish that the employer terminated him for an illegal reason.  A defamation claim requires the employee to prove that the employer or employer's representative published a statement that was not mere opinion, that that was capable of being proven true or false and harmed the employee - statements that the employee lacks the necessary skill or ability to perform his profession are presumed to harm. If the employee is not a public figure, the statement is presumed false and the employer has the burden to prove that it is true, which can significantly shift the balance in employment litigation.

The seminar also had programs on emotional distress and punitive damages, special considerations when suing government entities, PAGA claims, wage and hour litigation, whistle blower claims, mediation and more.  It was lots of fun.