That’s Elliot, the office cat. He’s actually not just an office cat, he’s my full time cat; but he hates being alone, so he goes to the office with me, where he promptly annoys everyone by sleeping in their inboxes or walking across their keyboards.
Elliot runs out the office’s front door at least once a day, only to be caught and brought back inside. It’s his thing. He never goes far… at least, he never did until last Thursday, when he ran around the city block. This seemed only marginally annoying at first, until after a couple hours it became obvious that Elliot had stepped in something caustic. He had a severe chemical burn on his paw, which he licked and turned into a severe chemical burn of his tongue and stomach. Elliot spent the weekend at the vet hospital.
On Monday, I tried to leave Elliot safe in his bed. But he complained and so I took him to the office with me. He wanted to go to the office as was his routine, even though he was sick!
Obviously, Elliot is a cat and not my employee, so having him come to the office when he is sick doesn’t impact my business too much. But it made me think about all the reasons why having sick employees in the office is a bad idea, no matter how much they insist on coming in (for whatever reason). So here’s a partial list of why you need to force sick employees to go home until they are better:
1. Contagions: if one employee has a contagious illness, they are contagious when they are early in the sickness, have a fever, are coughing or sneezing, and when they are carrying virus or bacteria on their hands. Those germs get into your air and are circulated around and get onto everyone’s phones, doorknobs and computers. Before you know it, after a few days to two weeks, half your workforce is out with the ebola virus. This grinds productivity to a halt. You get your customers sick or you get sick yourself. Passing around communicable diseases is bad for business.
2. Worker’s Comp Liability: if an employee is drugged up, tired, foggy, uncoordinated, etc., they may be more prone to accidents. Accidents at work equals worker’s compensation claims and lawsuits. Not only will this affect your premiums, but if it is a severe enough injury, it will trigger an automatic OSHA inspection, which almost always results in fines and other consequences when it turns out you aren’t quite as compliant as you expected!
3. Liability to Customers: it doesn’t happen too often, but occasionally I get a call from a client where an employee accidentally (or even on purpose) hurt or offended a customer to the point that the customer is threatening legal action. Here’s an example: a waitress who is lightheaded from a head cold accidentally pours hot coffee on a patron’s lap, severely burning him. That’s exactly the kind of stupid situation that could have been avoided by the employer forcing the sick employee to go home. Most of the time, it’s not worth the risk of keeping a sick employee out interacting with customers.
4. Disability and Leave Law Compliance: if you have an employee who is exhibiting health problems, you might have a trigger for ADA and leave law compliance. Not all sicknesses in the workplace are head colds. If you have any indication, whatsoever, that an employee may be suffering from something, you need to begin documenting the steps you are taking to obtain releases and accommodate disabilities, immediately. The interactive process under the ADA is a long process and is frequently handled improperly by employers. This leads to a lot of lawsuits and wasted money. Do not wait until the employee comes to you; be proactive. This is especially the case if the employee is a poor performer and in danger of being fired; you do not want a wrongful termination lawsuit on your hands!
5. Productivity Disruptions: here’s a basic bottom line point for you. If you have a sick or injured employee, they are half as productive for the same hourly price. Why spend that? This is especially foolish when the employee’s illness is prolonged by coming to work when they could stay home and use up their sick time (which is on the books already) and get back to full steam in half the time. It is also inefficient if extra time is being devoted to managing them, double checking their work, or picking up the slack, all because they are being “dedicated” by coming in while sick.
Here’s my advice. Allowing sick employees to work is penny-wise but pound-foolish. Make them go home!
Has someone posted a bad review or blog about you or your business? Are former employees telling your customers that you are a “scam” or that your products and services are poor? You are probably as mad as a bee in a jar about it. Few things can cause such an acute upset like lies being told about you and your business to others. But can you sue? And, more importantly, should you?
Defamation is defined as the communication of a false statement about another person (or business) that harms the victim’s reputation. The false claim can be made to just one person, or to a group of people. It is not the size of the group that matters; it is the lack of truth that results in damaging a person’s or business’s reputation. The point is that they are lying about you to others.
Traditionally, the tort of “defamation” was broken down to written defamation (“libel”) and spoken defamation (“slander”). But for modern purposes, this distinction does not matter much, and both types of statements are included in the same tort. Libel defamation includes lies written on internet websites, blogs, forums, social media, newspapers, books, and magazines.
People who lie on the internet behind cowardly “anonymous” postings cannot hide, however, if the plaintiff is determined enough. It is possible to bring a lawsuit against unknown persons (called Doe defendants) so that the suing attorney can subpoena the website where the anonymous comment was made. In response to the subpoena, the website will be compelled to reveal the poster’s name and other information. Even if all the website can provide is the IP address of the poster, that IP address can further be traced by subpoenas to Internet Service Providers, back to the computer — and the person — who made it.
When is a Statement Considered Defamation?
Here is the most important thing: you cannot sue for defamation unless you can prove that the statement is a false statement of fact. Truth is an absolute defense to any defamation case, no matter how insulting or embarrassing the statement.
Complicating this are a few other important rules. First, it needs to be a statement of fact, not opinion. The statement must appear to a reasonable person that it is a true and verifiable statement. However, when a person’s opinion is added into the statement, the dynamic changes. The distinction between factual statements and opinion is nuanced and often turns solely on a judge or jury’s view of the statement. So, for example, the statement “Monsanto is poisoning people” is a statement of fact that may be defamatory if Monsanto chose to sue. By contrast, the statement “I think that Monsanto is bad” is a subjective statement of opinion and not actionable defamation. But most statements fall into the hybrid where one can reasonably believe the statement is fact based even if couched as an opinion, and is therefore actionable. So, for example, the statement “In my opinion, after looking at the evidence, Monsanto is a bad company that sells poisonous GMOs” is possibly, but not certainly, defamatory.
And it gets even more complicated when topics of public concern are involved. Statements about the government, celebrities and other newsworthy items not only need to be false, but stated maliciously. That means that the speaker has to know that the statement was false, and made it anyway. Monsanto’s GMO supply and their lobbying efforts with the Federal Department of Agriculture, for example, may be enough of a public concern (even though its a private company) that you would have to be maliciously and knowingly lying about it before liability could attach. In purely private matters, the speaker does not have to know the statement was false to be held responsible for it. So a speaker is probably safe from a lawsuit if he calls the President a “war criminal” but not if he calls his neighbor a criminal.
What Qualifies as Damaging a Persons Reputation?
You cannot sue for a defamatory statement unless it also harms yours or your business’s reputation. That means that it must be published to another person (writing a bunch of defamatory statements in a private diary does not count) and it must lowers the value of the person or business to others or to the public. The victim as the plaintiff will have the burden of proving damage to their reputation, as well as the amount of damages. So, for example, if a customer does not like your service and lies about the facts of your business online, you will have to prove that the review prevented you from getting new business or other opportunities and money.
Statements that portray the victim’s morality or integrity in a poor light for a false reason is called defamation per se and the victim does not need to prove anything other than the false statements were published to another. Defamation per se statements are usually about a person committing a serious crime, having a sexually transmitted disease, lacking ability or integrity in their work or business, committing adultery, or being promiscuous. Calling a business a “scam” or a “rip off” may fall into this category, depending on the facts.
Should You Sue?
While promoting and doing business on the web has its many benefits, it has also unleashed a new level of defamatory content. Disgruntled former employees or customers may post untruths on blogs or message boards as retaliation or simply to vent. But most of the time, defamation lawsuits will just be a lot of money for little recovery as most people do not have assets to cover the harms they are causing. Lawsuits take a long time, too. And you typically cannot sue the website itself because they have protections as a “forum” by Federal law (so your lawsuit against “Rip Off Report” is likely going to be dismissed, even though Rip Off Report won’t remove demonstrably defamatory content unless you pay them a large fee).
Each incident is unique and the harm, your goals, and the practicalities of the situation should be discussed with your lawyer before you file suit. In addition to defamation lawsuits, there are other protections (especially against former employees) and steps that you can take directly with the website to get content removed. Don’t just run immediately to the courthouse, or you may not get the right result in the end.