Prior to 1990, Florida employers had a common law qualified privilege to discuss current and former employees with prospective employers. The leading case was Nadar v. Galbreath, 462 So.2d 803 (Fla. 1984). For an employee to overcome the privilege, and thus hold the employer liable for defamation or intentional interference with a business relationship, proof was required that the false information was made with express malice – not to be confused with “actual malice,” the standard applicable to claims against public officials or public figures – described as “where the primary motive for the statement is shown to be an intention to injure the plaintiff.” Nadar, 462 @ 806 (citing Loeb v. Geronemus, 66 So.2d 241 (Fla. 1953). This common law standard needed to be shown by a preponderance of the evidence.
Florida Statute 768.095 appears to have superseded the common law. (The case law handed down since the enactment of 768.095 is somewhat confusing on the interplay, if any, between the statute and the common law.)
768.095 reads as follows:
768.095 Employer immunity from liability; disclosure of information regarding former or current employees. –An employer who discloses information about a former or current employee to a prospective employer of the former or current employee upon request of the prospective employer or of the former or current employee is immune from civil liability for such disclosure or its consequences unless it is shown by clear and convincing evidence that the information disclosed by the former or current employer was knowingly false or violated any civil right of the former or current employee protected under chapter 760.
The differences between the statute and the common law are:
- The statutory standard of proof is “clear and convincing evidence,” a higher burden than the common law’s preponderence of evidence;
- Under the statute, liability will be found against the employer for disclosing “knowingly false” information, while the common law standard requires a showing of express malice. It is not clear if these are different standards, although in reading it sounds like they are, with the common law standard being the more rigorous.
- Absolute immunity for government officials. But for the small exception in F.S. 943.139(4) for law enforcement administrators, government officials seem to have absolute immunity from liability for defamation. These cases are a good place to start the research on the subject: Blake v. City of Port Saint Lucie, 72 So.3d 905 (Fla. 4th DCA 2011); Bates v. St. Lucie Cnty. Sheriff’s Office, 31 So.3d 210 (Fla. 4th DCA 2010) and Stephens v. Geoghegan, 702 So.2d 517 (Fla. 2d DCA 1997).
- Elements of defamation. (1) False and defamatory statement concerning another; that (2) tends to harm someone’s reputation in the community or deters others from associating with that person. Thomas v. Jacksonville Television, Inc., 699 So.2d 800 (Fla. 1st DCA 1997).
- Elements of tortious interference. (1) Existence of relationship; (2) knowledge of the relationship by the defendant; (3) intentional unjustified interference; and (4) damage.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.