Defamation
Michael Trust founded Michael Trust Law, APC after more than 35 years in HR leadership across entertainment, healthcare, higher education, finance, banking, solar energy, and other industries, including managing approximately 35,000 disability and leave-of-absence cases. He holds the SPHR, PHRca, and SHRM-SCP credentials. The PHRca is a California-specific HR credential focused on California employment law and HR practice. According to HRCI’s published pass-rate statistics at https://www.hrci.org/pass-rates, the PHRca has the lowest pass rate of all HRCI credentials — 47% as of December 31, 2025, compared with 71–84% for HRCI’s other certifications — and only 293 candidates worldwide tested for it in 2025. That HR-systems background helps identify HR process issues early, which can shape legal analysis on both sides.
A workplace statement can be defamatory, but California law gives employers broad protection for performance reviews, internal investigation communications, and job references made in good faith. A viable claim usually requires proof of actual malice, or a statement that caused harm separate from the job loss itself.
This HR background often proves relevant to defamation analysis, where the audience for a statement and the process behind a performance review or reference often determine whether a privilege applies.
How Defamation Works in the Employment Context
Libel is a false, unprivileged written statement; slander is the spoken equivalent (Cal. Civ. Code §§45, 46). In the workplace, the most common scenarios are a false performance write-up used to justify discipline or termination, a false or misleading negative reference given to a prospective employer, and being forced to repeat an employer’s false stated reason for termination to a new employer.
Why Most Employer Communications Are Privileged
California’s qualified common-interest privilege (Cal. Civ. Code §47(c)) covers most of what looks, at first glance, like actionable workplace defamation: performance reviews and internal investigation or disciplinary communications among people who share an interest in the employee’s conduct (management, HR, an investigator); a reference given to a prospective employer in response to an inquiry and based on credible evidence; and an employer’s answer to a “would you rehire” question, including disclosing that a non-rehire decision was based on a sexual-harassment finding — all without exposure to liability, so long as it is made without malice.
The privilege yields only on a showing of actual malice — that the speaker was motivated by hatred or ill will toward the employee, or spoke without a good-faith, reasonably grounded belief in the truth of the statement (Lundquist v. Reusser (1994) 7 Cal.4th 1193; CACI No. 1723). That is a high bar, and it is why these claims are rarely brought successfully.
The Second Bar: Statements That Are Just the Reason for Your Termination
Even a statement that overcomes the privilege can still fail if it is, in substance, just the employer’s stated reason for the termination and the only real injury is the job loss itself. California courts have treated that as a wrongful-termination claim in different packaging, not an independent defamation tort, unless the statement caused reputational harm separate from and beyond losing the job.
THE CAUTION
As of the date this page was published, this question is pending before the California Supreme Court in Hearn v. Pacific Gas & Electric Co. (Cal. Supreme Ct. No. S289581, review granted May 14, 2025). The Court of Appeal held that a terminated employee could not recover in tort for a defamatory statement that was the vehicle for the termination itself, where the only damages sought were job-related; a dissenting justice disagreed. The California Supreme Court has not yet decided the question, and the answer could go either way. Whether a specific termination-related statement supports a stand-alone defamation claim, or must be pursued only as part of a wrongful termination claim, is unresolved and fact-specific.
What Actually Survives
Putting the two limits together, a realistic defamation claim in this context generally requires one of: proof of actual malice; a statement published to people outside the group who actually shared the relevant interest, which keeps the privilege from applying in the first place; or reputational harm that is independent of the termination itself — for example, a statement repeated to people who had no role in the employment decision, or one that continues to circulate after the employment relationship ends. How Hearn is ultimately decided will likely sharpen this analysis further.
The One-Year Deadline
California requires a defamation claim to be filed within one year of discovery of the statement (Cal. Code Civ. Proc. §340(c)). This deadline runs separately from the deadline on a companion wrongful-termination or retaliation claim arising from the same facts — do not assume one deadline covers both.
When to Contact Us
Whether a specific statement is privileged, whether it rises to actual malice, and whether Hearn’s resolution changes the analysis are all fact-specific questions. Contact Michael Trust Law, APC for a 30-minute conversation about your situation.
Initial contact does not create an attorney-client relationship — see Disclaimers.
Cal. Civ. Code §45 (defines libel); Cal. Civ. Code §47(c) (qualified common-interest privilege); Lundquist v. Reusser (1994) 7 Cal.4th 1193 (actual-malice standard); Hearn v. Pacific Gas & Electric Co. (Ct. App., Jan. 24, 2025) — review granted, Cal. Supreme Ct. No. S289581, cited for persuasive value only per Cal. Rules of Court, rule 8.1115(e); Cal. Code Civ. Proc. §340(c) (one-year limitations period).