“First of all,” says Whelan, “defamation is a lot easier to prove than wrongful dismissal. The point of the suit is to get compensation for your client and it doesn’t really matter whether that is won by arguing wrongful termination or whether it’s done by arguing defamation.”
Workplace defamation has lifetime consequences for terminated workers. It carries a lifetime stigma that makes it difficult for them to get other jobs. These are important cases.
In August 2014, Whelan won a $5.65 million verdict on behalf of Robert “Bob” Sallustio against Kemper Insurance in an employment defamation suit. Sallustio’s managers claimed that he only worked 15 or 20 hours a week, that he was “hardly around” and otherwise “unavailable.” The accusations had been repeated by a number of managers including one who was hoping to take Sallustio’s management job after he was gone.
Sallustio’s issues started when he went to bat for his ex-wife who also worked at the company and had some emotional issues and crying bouts in the office after the breakup of the marriage. Her direct supervisor wanted her gone but Sallustio thought an internal reassignment would allow her to continue working.
When Sallustio succeeded in finding another position for his ex-wife at Kemper, her supervisor went to war against him - slandering him in the process.
“Lawyers often confuse employment defamation with traditional cases of media defamation. They are very different,” says Whelan.
“They go back to their law school training that a corporation is a person and they believe the discussion of your client’s alleged failures isn’t a publication to a third person. However, there is case law that says publication to anyone other than your client is a publication to a third person.”
The defamatory accusations flew in the face of the Sallustio’s performance history. He’d supervised dozens of employees over the years without a single complaint. He actually worked about 45 to 50 hours a week and had had very positive performance reviews.
“As they are trying to convince you that your client is a bad person, they are giving you additional publications of defamatory material, and also they are helping you support the key issue in any defamation case, which is malice,” says Whelan.
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A video recording shown at a recent Consumer Attorneys Association of Los Angeles (CAALA) conference showing Whelan taking the Kemper HR manager’s deposition demonstrates Whelan’s finesse.
“Did you know whether the allegations were true or false,” asks Whelan.
“No,” says the manager. “I did not.”
“Did you care if they were true or false?” asks Whelan.
“No, I did not.”
The jury returned a verdict of 9 to 3 in favor of Sallustio’s defamation suit. He was awarded $509,295 in lost wages, $724,854 for future lost wages, $500,000 for past emotional distress and $3 million in punitive damages, plus $919,455.38 for costs plus interest.
Sallustio will not need a new job.