When prospective employers contacted Marsh and McLennan Co., Inc., John Erickson’s (Erickson) former employer, for reviews on Erickson’s performance, Erickson filed suit against Marsh and McLennan on charges of libel for their assessment of Erickson’s performance.
Defamation is actionable when an employer maintains qualified privilege to assess a former employee’s qualifications for a third party if the former employee proves actual malice in his assessment.
John Erickson (Erickson) was terminated from Marsh and McLennan Co., Inc. (Marsh and McLennan) after fabricating discrimination allegations against Erickson. When potential employers contacted Marsh and McLennan regarding Erickson’s working capabilities, Marsh and McLennan maintained that Erickson was not professional but was well known among insurance agencies. Erickson subsequently sued Marsh and McLennan for libel due to their description of Erickson to potential employers. The trial jury found in favor of Erickson and the appellate division reversed. Erickson appealed.
Is defamation actionable if an employer maintains qualified privilege to assess a former employee’s qualifications for a third party?
An employer maintains qualified privilege in a subject matter if the employer has a duty or interest in relation to that subject matter and the person requesting the statement has a parallel duty or interest in relation to the subject matter. For a plaintiff to overcome qualified privilege, the plaintiff is required to prove actual malice. Marsh and McLennan Co., Inc. (Marsh and McLennan) maintained qualified privilege because they maintained a legitimate interest in John Erickson’s (Erickson) qualifications, and the information provided to prospective employers was a result of those employers’ inquiries. Actual malice must be proven with clear and convincing evidence and the jury must make a determination of the motivation behind the defendant’s statements. In this case, the jury determined that the statements made by Marsh and McLennan were false and made with malicious intent.