A Former Employee Is Disparaging My Company Online. What Can I Do?

Start by sorting fact from opinion

Not every damaging post is actionable. Texas protects statements of opinion, and a former employee's post that the company is “a terrible place to work,” that management “does not care,” or that the owner is “the worst boss I ever had” is opinion, however much it stings. What is actionable is a false statement of fact: that the company bills clients for work it never did, that it fired someone for reporting a safety violation, that it has unpaid judgments against it, that a named manager stole from customers. The first task is to go through every post, sentence by sentence, and mark which statements assert verifiable facts and which do not. Only the first group supports a claim.

The second task is harder for an owner to do alone: for each factual statement, decide honestly whether the company can prove it false. Truth is a complete defense, and a suit over a statement that turns out to be substantially true is worse than no suit at all.

The two claims a business can bring

The Texas Supreme Court set out both claims in In re Lipsky (2015), a case that arose, as these often do, from an anti-SLAPP motion.

Defamation. The company must show the former employee published a false statement of fact to a third party, that the statement was defamatory concerning the company, and that the employee acted with the required degree of fault, which for a private business is at least negligence about the truth. Damages must be pleaded and proved unless the statement is defamatory per se. Statements that injure a business in its trade or profession, such as accusations of fraud or dishonesty, fall into the per se category, and the court said whether a statement is defamatory per se is generally a question of law. Even then, presumed damages support only a nominal award without proof of actual harm.

Business disparagement. This claim protects the company's economic interests rather than its reputation. The company must show the employee published false and disparaging information about it, with malice, without privilege, and that the publication caused special damages: specific lost sales or contracts, proved with evidence. In Lipsky, an executive's affidavit referring generally to economic losses was held conclusory and insufficient. A company that cannot point to a customer who left because of the post will struggle to carry this claim.

Both claims are brought in state court, typically in the county where the company is harmed or where the defendant lives. The one-year limitations period for libel and slander in Civil Practice and Remedies Code section 16.002 runs from publication, which for an online post is the date it first appeared.

The retraction request Texas requires first

Texas does not let a defamation plaintiff go straight to court. Under the Defamation Mitigation Act, Civil Practice and Remedies Code section 73.055, a person may maintain a defamation action only if it has made a timely and sufficient request for a correction, clarification or retraction, or the defendant has already made one. The request is timely if made within the limitations period, and a defendant who was not served with one can file a plea in abatement that automatically pauses the suit until 60 days after the request is served.

Timing has a second consequence. If the company does not make the request within 90 days after learning of the publication, it may not recover exemplary damages. The request must be in writing, identify the company, state with particularity each statement claimed to be false and defamatory and, where known, when and where it was published, and allege the defamatory meaning. The former employee then has 30 days to correct, and may first ask the company for the evidence of falsity, which the company must supply within 30 days. For an online post, a correction appended to the original post counts as sufficient in medium and prominence. A timely, sufficient correction does not end the case, but it bars exemplary damages unless the statement was made with actual malice.

The request letter is, in practice, the company's first and often last chance to get the post taken down cheaply. Written well, it is also the foundation of the lawsuit. Written as a threat, it can become an exhibit in the anti-SLAPP motion, and it can occasionally create its own problem, as covered in when a demand letter crosses the line into defamation or extortion.

The anti-SLAPP motion the former employee will file

The Texas Citizens Participation Act, Civil Practice and Remedies Code chapter 27, is the most important fact about suing over online speech in Texas. The statute expressly applies to a legal action relating to the posting of consumer opinions, reviews or ratings of businesses. A former employee sued over a review or a social media post can move to dismiss within 60 days of service. The motion suspends all discovery until the court rules. To survive it, the company must establish, by clear and specific evidence, a prima facie case for each essential element of its claim, which Lipsky described as the minimum evidence needed to support a rational inference that each allegation is true, with circumstantial evidence allowed and conclusory statements not enough.

If the court dismisses, it must award the former employee court costs and reasonable attorney's fees, and may add sanctions sufficient to deter similar suits. The company that files a thin defamation claim can end up paying both sides' lawyers. If the motion is frivolous or filed only to delay, the court may instead award fees to the company.

Getting the post taken down

The platform is not the defendant. Under 47 U.S.C. § 230(c)(1), no provider or user of an interactive computer service is treated as the publisher or speaker of information provided by another content provider, and inconsistent state-law claims are barred. Google, Glassdoor, Indeed, Yelp and the social networks cannot be sued for a former employee's post, and a letter threatening them with a defamation claim accomplishes nothing.

What works is narrower:

• The platform's own rules. Each service has content policies and a reporting process. Posts that reveal personal information, impersonate someone, contain threats or harassment, or come from someone who was never employed by the company are the ones most often removed. Posts that are merely negative, or that the company says are false, are rarely removed on request.
• A court order against the poster. A judgment or agreed order finding specific statements false and directing their removal is something most platforms will honor, even though the platform is not bound by it. This is the usual end point of a successful suit or settlement.
• Agreement with the former employee. Many of these disputes end with the post removed in exchange for the company dropping its claim, sometimes with a mutual non-disparagement clause and payment of nothing.

What the former employee will argue

• It is opinion. Every statement will be characterized as the poster's view of his or her experience, and courts read reviews in context, giving a reader's natural understanding.
• It is true, or substantially true. The employee will produce the emails, photos or co-worker accounts behind the post. Discovery, when it arrives, runs in both directions.
• The company cannot prove damages. No lost customer, no canceled contract, no measurable decline, so no special damages for disparagement and only nominal damages for defamation.
• The suit is retaliation. If the employee has a pending discrimination charge or wage claim, a defamation suit filed close in time will be presented as retaliation for the protected activity, which is a separate claim against the company.
• The anti-SLAPP motion. Filed early, with a fee request, to make the cost of continuing visible on day one.

Example

Suppose a Dallas HVAC contractor terminates a service technician for repeated no-shows. Two weeks later, reviews appear on the company's Google profile and on an employer-review site under his name and two others. The posts say the company “charges customers for parts it never installs,” “fires anyone who complains about safety,” and is “run by crooks.” Three customers mention the reviews when canceling scheduled work.

“Run by crooks” is opinion. The other two statements assert facts, and the company has invoices and service records showing every billed part was installed, and personnel records showing the technician was the only employee terminated that year and that no safety complaint was ever made. The company serves a retraction request within 90 days that quotes each statement, states why it is false, and attaches nothing. The technician does not respond. The company sues for defamation and business disparagement within the year, pleading the three canceled jobs as special damages. The technician files an anti-SLAPP motion; the company meets it with the invoices, the records and the three customers' statements, which is clear and specific evidence of each element. The case settles with the posts removed and a mutual non-disparagement agreement.

What to do before anything else

1. Preserve the posts: full-page captures with dates and URLs, from more than one device, before anything is edited or removed.
2. Identify the poster with evidence, not assumption. Anonymous posts can sometimes be traced through a pre-suit deposition under Rule 202, but the court applies a demanding standard before unmasking a speaker.
3. Pull the records that prove or disprove each factual statement, and read them before deciding anything.
4. Check whether the former employee signed a non-disparagement clause, and whether he or she has a pending charge or claim against the company.
5. Do not respond publicly with facts about the employee's performance or termination. A public reply that states private employment facts can itself become a claim.

Whether to send the retraction request, sue, or let the post age out is a judgment about provable falsity, measurable harm and anti-SLAPP exposure, and it should be made with a litigator who has handled the early-dismissal motion from both sides; the mechanics of that motion are in early dismissal in Texas under Rule 91a and the anti-SLAPP statute. Tina Wysk represents Dallas businesses in disputes with former employees, including defamation and disparagement claims.