• The Compelled Self-Publication Doctrine Is Rejected by the Connecticut Supreme Court
  • February 20, 2004
  • Law Firm: Nixon Peabody LLP - New York Office
  • Terminating employees without being sued is every employer's daily battle. Various legal doctrines are available to an ex-employee. Defamation is one. The employee claims the employer's oral (slander) and/or written (libel) criticisms of her/his conduct are defamatory. Truth is a defense and employers also have a qualified privilege arising from the employment relationship. A more effective defense for employers, however, is that actionable defamation generally requires that the employer publish the allegedly defamatory statement to a third party.

    Employers carefully avoid defamation claims. They do not use defamatory words per se, such as "fraud." They also limit the information given to other employers by providing only the ex-employee's employment dates, position held, and similar harmless "directory" information.

    Despite these careful employer actions, the terminated employee can still bring a defamation claim in certain states under the compelled self-publication exception to the publication requirement. That invidious doctrine assumes the discharged employee is somehow compelled to tell prospective employers the reasons the former employer cited when firing her or him. This self-publication (even though it is by the employee and not by the careful employer) allows the employee to sue for defamation in those states.

    Seven states recognize this compelled self-publication exception. They are California, Colorado, Kansas, Michigan, Minnesota, Missouri, and Oregon. At least eight other states flatly reject it. They are Alabama, Georgia, Hawaii, Illinois, Maine, New York, Pennsylvania, and Tennessee. Connecticut was on the fence with conflicting lower court rulings. This ended on January 6, 2004, when the Connecticut Supreme Court unanimously rejected this exception (Cweklinsky v. Mobil Chemical Co. , 2004 Conn. LEXIS 2). That case began in the federal courts. The Second Circuit Court of Appeals, unable to resolve the conflicting Connecticut decisions, certified the question whether Connecticut would recognize a compelled self-publication cause of action to the Nutmeg State's highest court. That Court's answer was a resounding "no."

    Employers will like the Connecticut Supreme Court's reasoning as well as its conclusion. The Court rejected compelled self-publication for three reasons. First, it would chill communications in the workplace and encourage employers, fearful of defamation claims, to limit their communications both with employees and with prospective new employers. Employees would be harmed as well, if employers avoided giving employees constructive criticism. Second, the employer "silent treatment" compelled self-publication could frustrate an employee's efforts to seek redress for wrongful termination. Usually an employer's refusal to give a terminated employee any reason for the termination allows the fact-finder to be "justifiably suspicious" that an unlawful motive is present. If compelled self-publication were the rule, the Court notes, the "employer's silence could justifiably be viewed as savvy rather than suspicious." Third, the compelled self-publication cause of action is controlled entirely by the employee. She/he can increase damages simply by repeating the defamatory words to more employers and, indeed, circumvent the short defamation statute of limitations, since each compelled "publication" gives rise to a new cause of action.

    The dangers that acceptance of the compelled self-publication exception would entail were graphically on display in the garden-variety employment case before the Connecticut Supreme Court. Victor Cweklinsky, a twenty-five-year Mobil Chemical employee, took a six-week leave for carpal tunnel syndrome surgery on his wrist. His doctor cleared him to return to work on Friday, December 11. Victor apparently did not want to come back to work then, especially when Mobil scheduled him to work on both Saturday and Sunday, December 12 and 13. He went to his doctor's office and convinced the office manager to change the date on his return-to-work form to Monday, December 14. The company investigated. At first, it accused Victor of falsifying records and, later, when it turned out the office manager had altered the form, fired him for taking leave without permission.

    Victor ran off to court. A federal jury awarded him $837,000 in damages partially for his breach of contract claim (i.e., Mobil's manual established a "just cause" standard for discharge) but also because he was compelled to tell prospective employers "over and over" why he had been fired. The Supreme Court's rejection of the compelled self-publication cause of action will require the federal court to reexamine the judgment entered solely under the remaining breach of contract finding in Victor's favor.

    Victor was fired in December 1999. This case is nearing its fifth anniversary and it is not yet over. Victor's counsel argued that employers could not complain about being potentially subject to a compelled self-publication claim because they still had their truth and qualified privilege defenses. The Connecticut Supreme Court neatly dismissed that argument, noting the truth and qualified privilege defenses were not defenses "against the expense and inconvenience of being sued." It then continued using words that will warm every Connecticut employer's heart:

    A successful defense is small comfort to an employer that must pay attorneys' fees to defend a defamation claim and have the employer's attention diverted from its business to the defense of the suit.

    Where does this leave compelled self-publication nationally? A clear majority of states have either rejected the doctrine or have not yet recognized it. The recent trend is strongly against the doctrine. The last three states to address the issue have all rejected it; Tennessee in 1999, Hawaii in 2002, and now Connecticut in 2004. Moreover, in two of the seven states (Colorado and Minnesota) where courts adopted the doctrine, the legislature later eliminated or restricted it.

    Mobil Chemical could not possibly have anticipated that terminating Victor Cweklinsky in December 1999 for admittedly compelling his doctor's office to change his return-to-work date by three days would lead to a long, expensive legal battle and a $837,000 judgment in Victor's favor. Nevertheless, employers in Connecticut can be thankful that Mobil's battle against the compelled self-publication doctrine was successful. The Connecticut Supreme Court's soundly reasoned, proemployer decision, supporting the recent judicial trend against acceptance of that dangerous doctrine, should assist employers in other undecided states when similar battles are fought there.