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To the relief of Connecticut employers, the state’s highest court last month unanimously rejected the tort of compelled self-publication defamation, on public policy grounds. Normally, a case for defamation doesn’t arise unless the defamatory statement is “published” to a third party by the defamer. But in the employment context, where an employer has fired an employee for a defamatory reason, several states have recognized compelled self-publication as an exception to the publication requirement. “These courts reason that it is fair to hold an employer liable for compelled self-publication because it is reasonably foreseeable that the employee, in seeking new employment, will inevitably be asked why he or she left his or her former employment,” state Supreme Court Justice Christine S. Vertefeuille wrote in Cweklinsky v. Mobil Chemical Co. But recognizing such a doctrine in Connecticut, Vertefeuille warned, “would encourage employers to curtail communications with employees, and the employees’ prospective employers, for fear of liability,” creating a “culture of silence” at work, and a “no comment” policy when asked for references. The tort was the basis for part of the $800,000 a federal jury awarded former Mobil Chemical machinist Victor Cweklinsky. In 1998, Cweklinsky took six weeks of paid disability leave for carpal tunnel surgery. He was scheduled to return to work on Friday, Dec. 11. But he brought his return-to-work letter to his doctor, and the doctor’s office manager changed the handwritten date to Dec. 14. Cweklinsky didn’t tell the office manager he was scheduled to work that weekend. Mobil’s human resources director, Therese Haberman, investigated what she initially thought was a forged letter. But according to the brief filed by Cweklinsky’s lawyer, Victoria de Toledo, the employee’s doctor sent a fax to Mobil explaining that the letter was changed at the doctor’s direction. Nevertheless, Cweklinsky was fired for taking paid medical leave without a medical basis. When he applied for other jobs, Cweklinsky testified, he was compelled tell the truth: “Over and over. … [T]hey asked why I was terminated. I told them. That’s what they asked.” Ultimately the jury in the case concluded that Haberman’s internal statements about Cweklinsky could not be excused. “The jury found [company officials] acted with actual malice,” de Toledo, of Stamford’s Casper & de Toledo, said in an interview. Mobil appealed to the 2nd U.S. Court of Appeals, which certified a question to the Connecticut Supreme Court, asking it to decide for the first time whether Connecticut recognizes the modern doctrine of defamation by compelled self-publication. The court determined the value of open communication in the workplace outweighs the needs to compensate defamed workers in such situations. Vertefeuille cited with approval the view of the Hawaii Supreme Court, that a resulting lack of feedback from employers could cause an employee to fail prematurely, without getting a chance to correct shortcomings. It also could encourage employers to fire employees without stating a cause — a practice that would complicate cases of employees who allege they were fired for some wrongful reason, such as their age, gender or race. In addition, the doctrine would work against a plaintiff’s normal duty to reduce or mitigate damages, because the plaintiff “essentially controls the cause of action,” and could increase damages, and renew the injury, by repeating the defamatory words again and again, the Supreme Court reasoned. When the statute of limitations is about to run, an employee would only need to “go to another interview, in order to give rise to a new cause of action with a new publication,” Vertefeuille argued. The court concluded that adopting the doctrine would also undermine the employment-at-will doctrine, and would be costly to employers who might have to build a demonstrable case for termination as a defense against defamation. While truth creates a defense against ultimate liability, it is no protection against the cost and distraction of a lawsuit. “We are persuaded that most employers will likely choose a ‘culture of silence’” added Vertefeuille, “rather than rely on truth as a defense to a defamation claim.” The 2nd Circuit will now have to review the $800,000 award on an alternate theory — that older employee manuals created an enduring promise that Cweklinsky would only be fired for cause. Mobil is being represented by Jeffrey J. Tinley and Robert Nastri Jr., of Waterbury’s Tinley, Nastri, Renehan & Dost.

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