Federal, state, and local employment statutes prohibit employers from discriminating based on certain protected categories, such as race, sex, or religion. In some situations, an employer may want to fire an employee, but lacks a non-discriminatory basis for doing so. If that employer makes a false statement regarding the employee as a pretext or justification for termination, the employer could be liable for defamation if the statement was made to the public. Defamation law allows an individual to recover damages for false statements, made with knowledge of their falsity, that cause actual harm.
In both New Jersey and New York, the elements of a defamation claim are (1) a false statement, (2) unprivileged or unauthorized publication to a third party, (3) negligence with regard to the statement's falsity, and (4) actual harm to the subject of the statement. Lee v. Bankers Trust Co., 166 F.3d 540, 546 (2d. Cir. 1999); Dillon v. City of New York, 261 A.2d 34, 38 (NY App. 1999). "Publication" may include written publication, known as libel, or a verbal statement to one or more people other than the subject, known as slander.
New Jersey, along with many other states, follows the "single publication" rule, meaning that a cause of action for defamation begins to accrue when the statement is first published. Barres v. Holt, Rinehart and Winston, Inc., 74 N.J. 461, 462-63 (1977). This rule generally applies to statements published on the internet. Churchill v. New Jersey, 876 A.2d 311, 319 (NJ App. 2005).