By: Randy Dotinga
The newspaper workplace is a legal minefield, and not just because of the constant threat of libel lawsuits. Workers face potential trouble on a variety of other fronts, and — contrary to popular belief — your employer won’t necessarily pick up all the costs if you get sued.
“If you commit a wrong to somebody else, your company may be liable, but that doesn’t relieve you of personal responsibility,” said Charles T. Huddleston, an employment law attorney in Atlanta. “It just means the victim has a better and bigger pocket to go for.”
Why worry? Because ordinary workers — especially managers and freelance writers — could easily find themselves on the hook for thousands of dollars in damages.
The arenas of sexual harassment, employment discrimination and even job-references are especially fertile fields for lawsuits that target individual bank accounts in addition to company insurance policies.
Under federal law, companies are typically on the line if an employee is accused of sexual harassment. But state law creates exceptions to that general rule, especially if there are allegations of inappropriate physical actions. “When anybody crosses the line from a hostile environment — dirty jokes and crude remarks — to something that constitutes an unwelcome touching, they are entering the arena of personal liability,” said Jim Kaster, a Minneapolis attorney who represents employees in harassment and discrimination cases. “We look at the underlying act. If a person commits a battery, they’re going to get sued by us.”
In some states, the risks for managers are even higher. They can face personal liability if they retaliate against an employee who makes an accusation. For example, an employee could sue if her boss “makes her life miserable” after she makes a complaint to human resources, Kaster said.
In the newspaper business, libel looms as one of the biggest legal threats. But reporters and editors — at least those on staff — usually get plenty of protection. “In my experience, the newspaper defends and indemnifies reporters for anything that occurs during the course of their work as far as libel goes,” said Eric E. Jorstad, a media attorney in Minneapolis.
Freelance writers may not have the same protections. In recent years, many magazines have adopted contracts that make freelance writers solely responsible for defending against libel suits and paying any damages resulting from their work. Some newspapers don’t require writers to sign contracts, leaving the indemnification issue up in the air. Jorstad suggests that freelancers look into libel insurance, but it is difficult and expensive to get, and the number of organizations offering it is shrinking.
There’s one more legal threat looming at the workplace, one that most managers have probably never thought of: slander. Many attorneys advise companies to not give out job references for fear that a current or former worker will sue for defamation over a negative reference.
The truth is that the managers themselves face the greatest exposure. In most states, plaintiffs won’t be able to hold companies responsible for a manager’s bad-mouthing “unless you can prove that the company formally instructed him to do that, or ratified the act after the fact,” Huddleston said.
What to do? Should companies ban references entirely? Huddleston doesn’t go quite that far. “References are extremely valuable tools, and I’d hate to see everybody in lockstep say, ‘We’ll only tell you if they worked there and what their dates of employment were.'”
Instead, Huddleston tries to find a middle ground: he advises his company clients to only give references if the worker [or former worker] in question signs a waiver saying he or she won’t sue.
Ready for more complications? Managers could get in trouble for saying too little just as well as saying too much. In one case, a company landed in court for providing a reference but failing to reveal a worker’s history of threatening supervisors, Huddleston said. The worker ended up shooting two workers at his new place of work.
“If you’re going to speak about a former employee, there are some cases that say once you start talking, a half truth is as bad as a lie,” Huddleston said. Maybe the safest policy is simply to never pick up the phone.