An employee bad-mouths you publicly – how should you respond?

How exactly should an employer respond if an employee – or ex-employee – bad mouths them publicly?

What’s the best approach if someone, for example, talks disparagingly about their work experience to a major media outlet or makes controversial allegations about their workplace on Glassdoor?

Judging by two decisions in the past year that have looked at the issue of defamation, there are no easy answers -- but employers should definitely weigh their options carefully, say two employment lawyers.

Allegations of racism in media reports

In the most recent case, a mechanic worked from January 2018 to June 2021 at an aerospace company. He was laid off because of the COVID pandemic, according to the employer, but the worker contended it was because he had complained about racially motivated threats against his life in the workplace.

The mechanic contacted CTV News in the week after his layoff and alleged the company failed to keep him safe or to appropriately respond to workplace racism.

Two months later, he issued a Statement of Claim for his statutory entitlements, $24,024: being six months pay in lieu of notice, and $140,000 in damages resulting from a wrongful termination. He also sought a further Order that the company retain an external workplace investigator to examine the incidents of anti-Black racism.

In late 2021, the company issued a Statement of Defence and a Counterclaim for $1.5 million in damages “arising from injury to their reputation, loss of customers and business, defamation, injurious falsehood, and unlawful interference with its economic interests.”

The worker responded with a motion to dismiss the counterclaim – known as an anti-SLAPP (strategic lawsuit against public participation) motion – and, ultimately, the court agreed. In the recent Williams v. Vac Developments Limited, the company had not established it was “likely to have suffered substantial damages” as a result of Williams’ expression, said the court, and “public interest in allowing the counterclaim to continue does not outweigh the public interest in protecting Williams’ expression.”

Glassdoor review not in public interest

However, in a May 2022 decision, the employer fared better, after facing criticism on the employer review site Glassdoor in 2019 and then 2020, with allegations of below-market wages, overwork, a lack of benefits or future progression.

Echelon Environmental asked that the review be taken down, and when Glassdoor refused, the company sued Glassdoor and the anonymous reviewer for defamation.

Glassdoor’s anti-SLAPP motion was denied because it was decided the reviews were not a matter of public interest. Glassdoor appealed, saying this was a workplace review, not a private dispute between two parties, “and that employee reviews of employers and working conditions that are communicated on a public site are of public interest to a segment of the public, namely, potential employees,” said the Court of Appeal for Ontario.

The company also said that there was “no meaningful distinction between customer reviews of businesses, which have been held to be a matter of public interest, and employee reviews of workplaces.”

However, the Court of Appeal in Echelon Environmental Inc. v Glassdoor Inc., dismissed the appeal, finding no errors in the original decision.

“The motion judge determined that the anonymous review on Glassdoor’s website concerned an individual’s complaints about such things as the respondent company’s pay and benefit levels, work requirements, and the company’s infrastructure. These were complaints that, while anonymous, reflected a private dispute with no real impact on others. The respondent company was not engaged in providing services to the public; it was providing specialized services to a small number of customers. In these circumstances, it was open to the motion judge to conclude that the employee review did not relate to a matter of public interest.”

Understanding the stages of anti-SLAPP motions

For any defamation case, the real issue is whether a plaintiff, such as a company taking issue with an employee’s speech, can prove defamation, and then whether the employee can establish one of the defenses to defamation, says David McKechnie, a partner at McMillan in Toronto.

Essentially, an anti-SLAPP motion involves the court taking a look to see if the defamation claim is going to have enough of a reasonable basis to proceed to an actual trial, he says.

“The concept is to not just allow defamation claims to be used as a weapon to silence people, on both sides, and have them dealt with quickly and have the court take a hard look on whether this is actually going to be something [where] a trial needs to be held.”

In looking at an anti-SLAPP motion, the Ontario Superior Court of Justice cited the three stages to the analysis: the threshold expression hurdle, the merits hurdle, and the public interest hurdle.

In the first, the party that is trying to get the proceeding dismissed needs to establish that the “expression” relates to a matter of public interest, says Rebecca Shoom, partner at Lerners in Toronto.

“It's not considered a particularly high threshold; it's assessed on what we call the balance of probability standards.”

There’s no single test or standard or clear, practical guidelines about how that will be interpreted by a court, says Shoom, however, the court will consider questions such as “Will some segments of the community have a genuine interest in receiving information on the subject?... What size segment of the community? What community are we talking about? What is a genuine interest?

“All of these questions are things that courts frequently have to contend with, and there isn't really a clear or predictable answer in most cases as to whether that will be the case.”

If that stage is accepted, the burden shifts to the responding party when it comes to the merits hurdle, she says.

“They must establish grounds to believe -- so some evidentiary basis -- that their proceeding has substantial merit, and that the party bringing the motion has no valid defense. And this is considered a fairly preliminary assessment, because these motions are typically brought on the earlier side of the proceeding when parties haven't necessarily collected all of the evidence and information.”

The public interest hurdle

But probably the most contentious stage concerns the public interest hurdle, which again involves the responding party to the motion, says Shoom.

“That party must establish that the harm they have suffered, or that they likely will suffer, because of the expression at issue is serious enough that the public interest in permitting their proceedings to continue outweighs the public interest in protecting the expression by dismissing their proceeding.

“Which is a little wordy, I appreciate. But, effectively, what they're trying to do here is say, ‘OK, you say that you've been harmed by this expression. But how serious is that harm, really? Is it serious enough that we are potentially willing to infringe on someone's ability to express themselves?’”

Consider potential damages in responding to defamatory statements

Considering all of the above, how should employers respond when faced with potentially defamatory statements from employees or former employees?

“It's a tough question for sure, because it's going to very much be a case-by-case assessment, in terms of how you actually deal with this,” says Shoom.

“From a legal perspective… it's going to be about an assessment of the specific expression. And in a lot of these cases, it's not an easy answer. There's not a clear outcome, and it can be expensive to get there.”

Some of the considerations for employers in weighing their options would be looking at potential damages: For example, did the employee’s comments make you lose customers – and can you show that? Or did fewer job candidates apply for jobs with your company because of the alleged defamation?

“It will all be based on what are the losses that you're claiming occurred? How does the reputational harm actually manifest in a given situation?” she says.

Essentially, the courts have said you must be able to show some sort of general loss of business, some consequence, says McKechnie.

“It's not sufficient to just say, ‘Hey, you defamed me.’ OK, so what? And that's very true for employers -- you get a bad Glassdoor review but are you able to show, ‘Well, because of this Glassdoor review, we had X number of people quit’?... Can you show that you lost applicants or your number of applicants dropped or the type of applicants you received drops? And how do you quantify the damages for that?’”

If a pharmaceutical company, for example, is accused of operating a manufacturing facility way below government standards, that's clearly a reputational issue, says McKechnie, “and you can see how that could cause massive consequences, and could be defamatory if it's not able to be defended on the basis of justification -- as opposed to what usually is personality disputes in a workplace.”

On the flip side of the equation, an earlier defamation case out of Ontario highlighted the importance of staying professional when it comes to assessing and communicating concerns about staff — even if the concerns are valid.

Is it worth the hassle to respond to negative comments?

Ultimately, employers should be careful about bringing a defamation claim, says McKechnie.

“Essentially, you're continuing that conversation, but in a much more public forum than you might have otherwise, because now you have lawyers like me writing about it, and media outlets like yours writing about it. And instead, if they had just not brought this defamation claim, we wouldn't be talking about them, it would be a normal wrongful dismissal claim,” he says.

“And so employers have to carefully consider ‘Is this something we need to respond to legally? Or is this something we respond to in a social media post? Or is this something we let die a natural death on the internet?’”

Of course, the best course of action is to treat employees well in the first place, so they don’t have cause to complain, says Shoom.

“But, more practically speaking from a protective perspective, we are seeing a lot of employers have, for example, defamation policies or social media policies at play, certain guidelines for their employees about what can or should be said on social media or other public forums… things like non-disparagement clauses or other confidentiality obligations and contracts.”

However, that only goes so far, she says, particularly when you're dealing with an employee who has left the organization.