The Minnesota Supreme Court Expands the Scope of the Public Concern Standard for Defamation Claims

To establish the elements of a defamation claim in Minnesota, a plaintiff must prove that: (1) the defamatory statement was communicated to someone other than the plaintiff; (2) the statement is false; and (3) the statement tends to harm the plaintiff's reputation and to lower the plaintiff in the estimation of the community. McKee v. Laurion, 825 N.W.2d 725 (Minn. 2013).

Minnesota Statutes, Section 181.962, Subdivision 2 provides a defense for defamation claims based on an employee's personnel file. The statute reads as follows:

181.962 REMOVAL OR REVISION OF INFORMATION.

Subdivision 1. Agreement; failure to agree; position statement.

(a) If an employee disputes specific information contained in the employee's personnel record:

(1) the employer and the employee may agree to remove or revise the disputed information; and

(2) if an agreement is not reached, the employee may submit a written statement specifically identifying the disputed information and explaining the employee's position.

(b) The employee's position statement may not exceed five written pages. The position statement must be included along with the disputed information for as long as that information is maintained in the employee's personnel record. A copy of the position statement must also be provided to any other person who receives a copy of the disputed information from the employer after the position statement is submitted.

Subd. 2. Defamation actions prohibited.

(a) No communication by an employee of information obtained through a review of the employee's personnel record may be made the subject of any action by the employee for libel, slander, or defamation, unless the employee requests that the employer comply with subdivision 1 and the employer fails to do so.

(b) No communication by an employer of information contained in an employee's personnel record after the employee has exercised the employee's right to review pursuant to section 181.961 may be made the subject of any common law civil action for libel, slander, or defamation unless:

(1) the employee has disputed specific information contained in the personnel record pursuant to subdivision 1;

(2) the employer has refused to agree to remove or revise the disputed information;

(3) the employee has submitted a written position statement as provided under subdivision 1; and

(4) the employer either (i) has refused or negligently failed to include the employee's position statement along with the disputed information or thereafter provide a copy of the statement to other persons as required under subdivision 1, or (ii) thereafter communicated the disputed information with knowledge of its falsity or in reckless disregard of its falsity.

(c) A common law civil action for libel, slander, or defamation based upon a communication of disputed information contained in an employee's personnel record is not prohibited if the communication is made after the employer and the employee reach an agreement to remove or revise disputed information and the communication is not consistent with the agreement.

Minnesota Statutes, Section 181.967, Subdivision 2, provides a defense to defamation claims based on an employment reference. The statute states as follows: 

181.967 EMPLOYMENT REFERENCES.

Subdivision 1. Definitions.

For purposes of this section:

(1) "employee" means a person who performs services for hire and includes an officer of a corporation;

(2) "employer" means a person who has one or more employees and includes a designated employee or agent who discloses information on behalf of an employer;

(3) "personnel record" has the meaning given in section 181.960;

(4) "private employer" means an employer that is not a government entity, as defined in section 13.02; and

(5) "public employer" means an employer that is a government entity, as defined in section 13.02.

Subd. 2. Causes of action limited.

No action may be maintained against an employer by an employee or former employee for the disclosure of information listed in subdivisions 3 to 5 about the employee to a prospective employer or employment agency as provided under this section, unless the employee or former employee demonstrates by clear and convincing evidence that:

(1) the information was false and defamatory; and

(2) the employer knew or should have known the information was false and acted with malicious intent to injure the current or former employee.

Subd. 3. Employment reference information disclosure by private employers.

(a) Subdivision 2 applies to the disclosure of the following information by a private employer in response to a request for the information:

(1) dates of employment;

(2) compensation and wage history;

(3) job description and duties;

(4) training and education provided by the employer; and

(5) acts of violence, theft, harassment, or illegal conduct documented in the personnel record that resulted in disciplinary action or resignation and the employee's written response, if any, contained in the employee's personnel record.

A disclosure under clause (5) must be in writing with a copy sent contemporaneously by regular mail to the employee's last known address.

(b) With the written authorization of the current or former employee, subdivision 2 also applies to the written disclosure of the following information by a private employer:

(1) written employee evaluations conducted before the employee's separation from the employer, and the employee's written response, if any, contained in the employee's personnel record;

(2) written disciplinary warnings and actions in the five years before the date of the authorization, and the employee's written response, if any, contained in the employee's personnel record; and

(3) written reasons for separation from employment.

The employer must contemporaneously provide the employee or former employee with a copy of information disclosed under this paragraph and to whom it was disclosed by mailing the information to the employee or former employee.

(c) A prospective employer or employment agency shall not disclose written information received under this section without the written authorization of the employee.

Subd. 4.Disclosure of personnel data by public employer.

Subdivision 2 applies to the disclosure of all public personnel data and to the following private personnel data under section 13.43 by a public employer if the current or former employee gives written consent to the release of the private data:

(1) written employee evaluations conducted before the employee's separation from the employer, and the employee's written response, if any, contained in the employee's personnel record; and

(2) written reasons for separation from employment.

Subd. 5. School district disclosure of violence or inappropriate sexual contact.

(a) Subdivision 2 applies to a disclosure by the superintendent of a school district or the superintendent's designee, or a person having administrative control of a charter school, to another school district or charter school of: (1) public personnel data under section 13.43, subdivision 2, relating to acts of violence toward or inappropriate sexual contact with a student that resulted in disciplinary action; and (2) private personnel data under section 13.43, subdivision 16.

(b) A disclosure under this subdivision must be in writing with a copy sent contemporaneously by regular mail to the employee's last known address.

Subd. 6. Application; relation to other law.

(a) This section does not affect the availability of other limitations on liability under common law.

(b) This section does not apply to an action involving an alleged violation of chapter 363 or other statute.

(c) This section does not diminish or impair the rights of a person under a collective bargaining agreement.