Marcos De Hoyos
Texas Employment Lawyer Marcos De Hoyos

You are standing in the line of a supermarket. As the queue tests your patience, you take a brief glance towards the tabloids and a certain headline captures your attention. It appears that there was a recent assassination attempt on the life of your prominent state senator. What’s more, the dubious article mentions you, specifically, by name, helpfully accompanied by one of your recent photos, and paints you as the perpetrator. You rapidly go through the week’s activities in your mind, none of which involve attempting to murder a high-profile politician. You thus do what any reasonable person would do in such an unreasonable situation: you lawyer up.

As outlandish as this scenario may seem, a similar incident recently occurred with famed videogame developer and director, Hideo Kojima. On July 8, 2022, Shinzo Abe, the former Prime Minister of Japan, was assassinated in the city of Nara in Japan. The murderer was immediately apprehended and detained. However, shortly thereafter, a Greek news station, an Iranian news outlet, and a French politician posted stories of the incident, but, oddly, accompanied their postings with images of Kojima, implicating him as the perpetrator. The different outlets all deleted or modified their postings after realizing the error, but not before Kojima, rightfully, threatened a libel lawsuit.

Libel is a written form of defamation that differs from its sister tort, slander, which is an oral form of defamation. In order to prevail on a defamation claim, a plaintiff must satisfy four different requirements. First, the plaintiff must show a false statement purporting to be a fact. In other words, an incorrect statement that is being asserted as true. Second, the statement must be published or communicated to a third person. Third, the plaintiff must show fault that amounts to at least negligence. Lastly, the plaintiff must show that the false statements caused some harm to the person that resulted in damages.

Texas happens to be one of few states that has laws that consider certain types of statements to be defamatory per se, meaning that they are automatically considered defamatory by law. Defamatory per se statements include statements that exhibit that the plaintiff (1) is incompetent in his job, trade, or profession; (2) has an infectious or serious disease; or (3) has committed a serious or notorious crime. In Kojima’s situation, he would more than likely fall under the third category of defamatory per se statements, given that the news outlets claimed that he had committed murder. However, most individuals, would more than likely find themselves in the first category.

Nonetheless, it is worth noting that libelous statements are statements of fact, not opinion. Suppose that an employer, on public record, claims that X is a bad employee. If X had an employment record of numerous complaints, write ups, follies, etc., then a reasonable person would consider X to be a bad employee, thus making the statement by the employer true and not defamatory. However, if X had a pristine record, high marks, and numerous accolades, then the employer’s statement could be considered defamatory given that no reasonable person would consider X to be a bad employee.

On the other hand, suppose the employer claims that she believes that Employee Y, a model employee, could use work in her social skills when it comes to handling clients. Even if Y had a pristine record, this statement would more than likely not be considered defamatory given that the employer’s statement seems to be constructive and not necessarily based on fact; it is suggestive rather than factual.

Realistically, most of us (one would hope) will not be falsely and baselessly implicated in the murder of a high-profile figure. However, that does not suggest that some of us will not be faced with false statements that affect our reputation and future prospects. If you find yourself in such a situation, then it would be prudent to consult with an attorney and see what, if any, options you may have. 

Colin Walsh
Texas Employer Lawyer Colin Walsh

Yes.  At least, in the Seventh Circuit.

Wanna know more?  Of course, you do!

So let’s talk a little about the exciting (as employment law cases go) new case of Ziccarelli v. Dart, 35 F.4th 1079 (7th Cir. 2022). 

In Ziccarelli, the plaintiff had worked at the Cook County Sheriff’s office for 27 years as a corrections officer.  In September 2016, Ziccarelli spoke to the office FMLA manager about taking additional FMLA leave that year.  At that time, Ziccarelli had already used about two-thirds of his available FMLA leave.  According to Ziccarelli’s account of the conversation, the FMLA manager told him not to take any more FMLA leave that year or he could be disciplined.  Of course, the FMLA manager hotly disputes this.  However, for lawsuits at the summary judgment procedural stage, all evidence and testimony must be viewed in favor of the plaintiff.  Therefore, Ziccarelli’s account of the conversation is the only one that matters.  I told you this was exciting!  After that conversation, because he feared he would be fired if he took FMLA leave, he retired.  It is important to note that he retired without taking FMLA leave or being disciplined in any way, shape, or form.

So the question presented to the Seventh Circuit was is whether or not it is unlawful interference with FMLA rights even if FMLA rights or benefits were never actually denied.  The Seventh Circuit says yes, discouraging someone from using rights they have is interreference.  The court reached that conclusion by analyzing the statutory text and the Department of Labor’s FMLA regulations as well as the FMLA’s purpose and context.  For example, the statute states that it shall be “unlawful for any employer to interfere with . . . the exercise of or the attempt to exercise” FMLA rights.  29 U.S.C. § 2615(a)(1) (emphasis added).  Therefore, the court concluded, interference does not require an actual denial of benefits.

Now, to be sure, a plaintiff must still show harm from being discouraged to exercise such FMLA rights even if the benefits were not denied.  In Ziccarelli, the Seventh Circuit said said such prejudice was shown because the plaintiff decided not to ask for FMLA leave because of the discouragement: “Evidence of a link between Shinnawi’s alleged discouragement and Ziccarelli’s decision not to take his remaining FMLA leave for 2016 is sufficient to require a trial.”  Ziccarelli, 35 F.4th at 1090.

After all that excitement, I feel I must mention that the Seventh Circuit Court of Appeals does not have jurisdiction over Texas or other courts in the Fifth Circuit, which is our federal court of appeals circuit.  That means the Ziccarelli opinion is not binding precedent here.  However, opinions issued by the court can be used as persuasive authority and the Fifth Circuit has often cited to Seventh Circuit cases. 

So the million dollar question is will this hold up in the Fifth Circuit?  There is reason to hope this reasoning could be extended to the Fifth Circuit.  Both Circuits use a similar formulation of the prima facie elements.  Specifically, both the Fifth Circuit and the Seventh Circuit have described in some cases the final two elements as “the employer interfered with his exercise of FMLA rights, and . . . he was prejudiced as a result.”  Compare  Park v. Direct Energy GP, LLC, 832 Fed.App’x 288, 293 (5th Cir. 2020) with Ziccarelli, 35 F.4th at 1084.  Further, the Fifth Circuit has said, citing regulations, that discouraging FMLA is interference.  See Cuellar v. Keppel Amfels, LLC, 731 F.3d 342, 346 (5th Cir. 2019).

If you think your FMLA rights have been interfered with, you should contact an employment lawyer to discuss the facts of your case and what options you might have moving forward.  The board certified attorneys at Wiley Walsh, P.C. have handled numerous FMLA interference cases.  You can book a consultation online at www.wileywalsh.com or by calling 512-271-5527.  

Julie St. John
Texas Employment Lawyer Julie St. John

When I first read an article several years ago about a Google employee living in the company’s parking lot, I thought to myself, “brilliant.” He had everything he needed at the office—food, gym, shower, electricity, etc.—except for a place to sleep. So instead of renting an expensive San Francisco apartment where he would likely spend very little time, he bought a box truck, tossed a mattress in the back, and parked it at work. No doubt he had the best commute time of anyone at the company. 

For the record, I still think this was absolutely brilliant. Now, it seems like more and more people agree! Although the box-truck dwelling Google employee actually moved into an apartment during the Covid-19 pandemic when he no longer had the ability to work in the office or use all its amenities, many workers residing in non-movable dwellings decided to do the opposite. They hit the road and started living the #vanlife. 

Of course, there were also a lot of people who may not have gone to such travel/adventure extremes, but instead just moved to another location, perhaps even to a different state or country. However, the motivations were still the same – the freedom to choose how and where they would live without giving up their careers. Although some moves were meant to be temporary, some were not.  Even in some cases where the moves were perhaps intended to be temporary, they may have ended up becoming permanent. 

So, what is one to do when they have relocated in one way or another when many employers are requiring workers to return to the office on either a full-time or part-time basis? 

This requirement is quite simply a non-starter for many. Even if they still live only a short walk from their office, there are still a lot of folks out there that would rather find a different job than go back to the office. This is obviously the easy answer. But for others, they may not feel like they can simply up and quit. They may find themselves wondering, is there anything that protects me from having to go back? 

The simplest answer is that absent the agreement of your employer, you’re probably going to have to quit or return. Unfortunately, your employer is allowed to dictate your presence in the office regardless of what it allowed you to do during the pandemic. Your employer may have told you they didn’t mind you moving out of state or traveling around the country working in a van. Yet, that doesn’t mean they have to let you continue on that way. 

Importantly, one key exception to this rule would be if you have a disability and you need to work from home as a reasonable accommodation. Then, your request to do so may be protected under the Americans with Disabilities Act. Although some employers may attempt to deny such an accommodation request by arguing it would not be reasonable, it will likely be a difficult argument for them if you were able to perform all the essential duties of your job remotely during the pandemic. 

If you have been fired because you could not return to the office and would like to talk with an employment lawyer about the facts of your case, call our office to schedule a consultation. Or, if you have no legally protected reason not to return but also don’t want to quit, never forget about the Google employee living in his box truck in the parking lot for years. It’s always a viable option . . . at least until you get caught. 

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

Over the past few days, I have been outraged by the Sesame Place disaster. I’m not only outraged by what has happened to these young children, but am outraged by the Sesame Place response.  

It is sad when any character at a theme park has to rush off to another location leaving children behind, or simply misses a child. It happens. However, seeing a character deliberately ignore children based on the color of their skin is wretched. 

Like millions of Americans this week, I watched a video of two beautiful, little Black girls be ignored at a theme park by a character they are growing up with, a character that is helping to shape their lives, a character they clearly love and hold dear, all while the little girls innocently wear their Sesame Street backpacks. These children do not understand the character that rejected them at the theme park was just a terribly flawed person dressed in costume. All these children see is she got a high five, she got a hug, and I was rejected. Now, mothers and fathers have to console…reassure…and explain what has happened at the end of what should have been a joyous day. “This Rosita” should have been fired. I’ll say this Rosita knowing that different people will dress as this character at different times.

The video shows this Rosita waving off the two girls and turning away.  In response to the video, Sesame Place stated that, “The Rosita performer did not intentionally ignore the girls and is devastated about the misunderstanding.” Did they really say Rosita is devastated? This is laughable. No, those children, their parents, the public are devastated.  Sesame Place attempts to write this off as Rosita signaling “no” to people in the crowd requesting that Rosita hold their child for a photo.  Wrong response Sesame Place.  Just…wrong response.  

This Rosita’s actions were abhorrent. Yet, Sesame Place yours were more so. Now, Sesame Place, you should face the anger of millions of Americans because of the way you handled the situation! Or better put, chose not to handle it. Your initial response signals that you excuse and condone such discriminatory behavior. The subsequent apology, acknowledgment that “it’s not OK,” and announcement of employee training sends the signal that you are insincere and only changing your tune for the benefit of Sesame Place’s business interests.   

I do not presume to know the true character of the people at the top of the Sesame Place hierarchy. However, if your business truly abhors discrimination in any form, the best response when something happens is to own it and rapidly address it. You’ll get more respect and probably a lot less backlash. 

No one expects Sesame Place, or any other business, to be perfect. Sometimes the wrong people will get past the application and hiring process and enter the building starting fires. When that happens, lies and cover ups only add fuel to the flames. Sesame Place, and other businesses, your responsibility is to douse the flames by taking the appropriate actions.  

For any reputable business, it does not serve your business interests to protect employees that show – through their discrimination against others – that they have very little concern for those business interests.

In Plaintiff’s employment law, many employees end up in our office because they work with someone like this Rosita and their employer ignores the discriminatory behavior or worse yet tries to cover it up. If you work with someone like this Rosita who has discriminated against you, or your employer has retaliated against you for complaining about discriminatory treatment you have been subjected to, contact an employment lawyer right away.  

Businesses need to take better care because sometimes the difference between a resolution and a revolution is the response.

Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

With the increase of remote work and tech jobs in Texas, moonlighting appears to be on the rise. This naturally leads to the question: can my employer fire me for moonlighting? There is no simple bright line rule. Instead, it requires knowing what your company’s rules are and knowing what agreements you have signed. 

 This past week I had a consultation that brought up an interesting question. The consult wanted to know what laws protected him from getting another job while still employed with his current employer. To quote them, they wanted to know if they could get in trouble for having a “side hustle” or secondary income stream. The practice of having a side hustle is becoming more and more common. In particular, it is big in the tech industry where many employees either freelance or operate a completely different small company. Having a second job is often referred to as moonlighting, and the question of whether it is legal requires a rather longwinded answer that almost always falls into the purview of what your employer’s workplace policies state. In this blog I would like to flesh out that answer. 

 First, with the exception of serving in the military, there is no specific law that outlines whether someone can hold a second job. This means that instead of looking at statutes, we turn to either contract law or the employer’s internal policy to find the answer. 

 Under contract law the obvious answer is a non-competition clause or sometimes duty of loyalty clause that limits the employee’s ability to seek secondary employment. While the answer to what a non-compete is can be a full blog answer, in short it is essentially an agreement between an employee and an employer where the employee agrees to not compete during the term of their employment and sometimes for a period of time after their tenure with the employer is done. Under the Texas Business Code, these agreements are fully enforceable provided that they are reasonable in scope, geographic area, and time. Thus, if an employee has signed a non-compete agreement and their second job competes with their primary employer, then they may very well be in violation of that agreement. 

 If an employee was to violate a non-compete with their moonlighting, the employer may be entitled to seek an injunction from a court to stop the employee from continuing to breach the agreement. Further, if the employer is able to prove that it has suffered an economic harm from the employee’s engagement in the second job, it may choose to seek damages from the employee. As such, it is imperative to take note when joining a company if you will be forced to sign a non-compete agreement. 

 Next, as stated above, there are no specific laws that state that you cannot have a second job. Nonetheless, this should not be taken to mean that an employer cannot fire you for working a second job. This is because  employers typically have specific company rules that forbid moonlighting. Moreover, even if you are not subject to a non-compete, sometimes employers have internal conflict of interest rules. This means that absent some discriminatory application of this rule, an employer may terminate an employee for having a conflict of interest i.e. a second job. 

 Lastly, due to the fact that Texas is an employment at-will state, an employer is still able to discharge an employee for any reason, even if false, so long as it does not run afoul of another law. Thus, even if there is no rule against a second a job, an employer may still choose to terminate an employee for moonlighting. Again, this is assuming it is not for an illegal reason. 

 Ultimately, when it comes to moonlighting it is always best practices to request a meeting with your employer to discuss if whether your engagement with another employer would be acceptable. The old adage “it is better to ask for forgiveness than permission,” is inapplicable here. But, as was alluded to above, the mere fact that Texas is at-will or that there are internal policies not allowing moonlighting does not always mean that it is legal. Often times these inquiries require a holistic analysis by an attorney that understands the law and is willing to fight for your rights. At Wiley Walsh, P.C. we specialize in employment, and we are more than happy to go over your situation so that we can assess what we are able to do for you. Feel free to contact us to schedule an appointment with one of our attorneys.

 

Colin Walsh
Texas Employer Lawyer Colin Walsh

As the fog rolled in and the sound of a lonely trumpet drifted through the air, I ducked inside a hotel on Mission Street.  It was Thursday.  The hotel was not too far from the lamb chops at John’s Grill and just a few blocks away from Spade and Archer’s old office on the fifth floor of the Hunter-Dulin Building.  I guess it would be just Spade there now.  If he was still alive.  It was a nice hotel, big spaces, bright lights.  It was the kind of place nice people went for nice conventions.  And indeed, that’s why I was there.  I checked the slip of paper in my hand.  This was it, the location of the National Employment Lawyers Association’s annual convention.  I pulled my fedora lower down on my face.  I had places to be.

Last week, our firm went to the National Employment Lawyers Association’s annual convention in San Francisco.  It was the first in-person convention in two years.  As a plaintiff’s employment lawyer, it is certainly one of the highlights of my year.  The convention itself is around two and half days of lectures and presentations on all things employment law related.  There are sessions on tons of things like causation standards, trial techniques, and negotiation.  Lawyers and law professors from all across the country come to the convention.  It is wonderful to meet so many people doing the same thing and who want to help you grow as an attorney fighting for your clients’ rights.  

It is always deeply inspiring and this year was no different.  For example, on the first day of the convention we heard from plaintiffs who successfully brought cases against Tesla and Amazon for race discrimination, and another plaintiff who sued a state university for sexual assault.  And that was just before lunch!  Then we heard from the person who helped form the first ever union of Amazon workers in the United States.  All of the speakers and the presentations give you hope for the future and energize you for the rest of the year.        

Every year, I learn something new and become a better attorney for it.  Every year, after attending two and half days of presentations, I am always eager to get back to the office so that I can try those new things.  Going to the convention and attending the presentations definitely enables me to better represent my clients in their cases.  Whether it’s a different technique for noticing and taking depositions, or a different way of seeking discovery from a company, my toolbox always expands after attending a NELA convention.

It is not all work, though.  We also had a chance to do some sightseeing around the city, go to a baseball game, and a hike in Muir Woods.  Some lucky people—ok, just me—saw some of the places mentioned in the book and movie, The Maltese Falcon, which turned out to be right around the hotel. It was my first time in San Francisco, and I would definitely return.

  As I have been writing this blog, I have been trying to think of some way to end it in a noir-ish fashion befitting Fog City or Baghdad by the Bay, but I haven’t come up with anything.  The problem is that noir is too cynical, too jaded, even hopeless to end this blog post with because I feel inspired to get back out there and fight for my clients’ rights.  And I will, right after I see a guy about a certain bird. It’s uh, the stuff dreams are made of.

    

  

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler
Julie St. John
Texas Employment Lawyer Julie St. John

June 24, 2022 is a day to remember.  Sadly, it is not to be remembered for justice.  Instead, it is to be remembered for its striking blow to women’s rights. On this day, the United States Supreme Court pressed the rewind button on progress. The “rewind button” brings up memories of cassette recorders and VCRs from decades past. That thought seems utterly fitting for the occasion. 

You see, on June 24, 2022, the Supreme Court decided that it wanted to take us back decades – nearly half a century – to January 21, 1973, the day before Roe v. Wade was decided.  The Supreme Court decided that it wanted to take us back to a time where young women died from back alley procedures because there was no safe haven for their choices. The Supreme Court decided that it wanted to take us back to a time where women knowing their pregnancy wasn’t viable, were forced to endure the pain and heartache of being required to carry to term. The Supreme Court decided they wanted to take us back to a place and time where women felt their bodies and life choices were not their own.  

According to former U.S. Supreme Court Chief Justice Charles Evans Hughes, the Supreme Court “is charged with ensuring the American people the promise of equal justice under the law.” On June 24, 2022, the Supreme Court failed to live up to its charge. The Supreme Court has failed the American people. 

For the first time in U.S. history, the Supreme Court has taken away a previously guaranteed constitutional right—the right for a woman to make her own healthcare decisions without government interference . . . the right to abortion. A right that has been guaranteed for almost 50 years has been stripped away. The Supreme Court’s actions in Dobbs v. Jackson showed their complete disregard for the rights of millions of women who would immediately become victims of their states. In fact, in the eye of this storm that is Dobbs v. Jackson, “trigger” laws in nearly a dozen states went into effect. This meant that a woman’s right to choose was taken away the very day Dobbs v. Jackson was decided, with other anti-abortion laws becoming effective within the next 30 days.  

With its decision, the Supreme Court has opened the flood gates for states to ban abortion unless the life of the mother is at risk. According to the Center for Reproductive Rights, this will likely lead to almost half of the states in the U.S. passing the most restrictive laws possible. Clinics in Texas have already stopped providing abortions after Attorney General Ken Paxton issued an advisory that criminal prosecutions for those providing such services would begin immediately. Although many women will still be able to obtain the services they need by traveling to other states, many will not. Those women will be forced to either carry an unwanted pregnancy to term or obtain an illegal abortion which will put their own health at risk. Neither of these options are acceptable. 

 When the draft decision was leaked, it was a sign of times to come. However, actually seeing the final opinion solidifies the fears people had as they watched this Court form under the prior administration. In its decision overruling Roe v. Wade, the Court rejected the value of precedent, it rejected the right to privacy, and it paved the way for future bans. This Supreme Court opinion signaled what rights may remain on the chopping block. Will there be another strike at women’s rights or choices related to reproduction with future bans on the purchase of contraception?  Will there be attacks on same sex relations and marriage? This opinion terrifyingly makes these things seem possible.  

We must do everything in our power to protect and fight for our rights.  We must do everything in our power to fight to win back this right that should not have been taken away. Yet, we must not stop there, as this will not be the end of threats to the rights of the American people. We must speak out against this decision and any other that takes away or threatens our Constitutional rights. We must vote for officials that want to protect all of our fundamental rights on both the state and national levels. We must not accept defeat in this fight or the next that’s sure to come. 

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

When employees look for an employment attorney, they are looking for someone to advise them on the law as it relates to an employment matter. The ultimate goal and hope is for the employee to find and choose an attorney that they trust to counsel them and give them sound advice. Of course, it goes without saying that providing sound advice does not always mean that the lawyer is there to tell the employee what they want to hear. Instead, a lawyer is there tell them what they need to hear. The lawyer is there to assess the situation and provide their take on the pros and cons or possible outcomes, as well as access the viability of claims if any exist. 

Navigating employment relationships can sometimes be very difficult. When things turn sour at work, it can be like a bad marriage. When it comes to work separation, it can be similar to a divorce. After 10, 20, or 30 years of dedication to an employer, it is understandable that an employee can become emotional about their job and career. Feeling betrayed and hurt is not uncommon when it comes to a place where one has spent so many hours. When this happens, it is best to seek the counsel of an experienced employment attorney early – before making any final decisions. However, it is important to remember, as is in any area of the law, whether it be employment, family, or personal injury law, sometimes the news is good, other times the news is not so good. Whatever the news may be, the attorney is not there to sugarcoat things and make false promises. The attorney is there to prepare the person seeking legal advice to make an informed decision once they know how the law applies to their circumstances and understands their options.

As employment attorneys, we are often outraged by the stories that we hear. Sometimes, in these stories, we learn that an employer has violated the rights of an employee and we want to give the employee a plan of action and means of fighting back. Conversely, with at-will employment, some employees find that when an employment issue arises, they have very few rights. In some instances, they have no rights – no laws that protect them from mistreatment. This is of course not to say that the employer’s actions are justified, moral, or right but simply that there is little to no legal recourse for the employer’s unethical behavior. When this happens, we still aim to provide sound advice and put those that seek our counsel in the best possible position to make decisions.  

When you consult with an attorney, their goal is to give you advice based on their experience and knowledge of the law as it relates to your facts. When you hire an attorney, you have hired them to represent you based upon that same experience and knowledge. It is the hope that you have done so with the intention of listening to the advice you have paid for. Though outraged we might be, we must often set aside those emotions to best represent our clients to put them in the best possible position or to help them make the best decisions based upon their circumstances. This is not always an easy job, but it is what is required of us if we are to truly help those in need.

At the end of the day, your employment attorney cannot force you to do anything. However, as stated above, when seeking an employment attorney, it is important to find an attorney whose advice you feel you can trust. This person is going to be someone providing you with valuable guidance in an area of the law in which they regularly practice and/or specialize.  If you’ve hired them, you have asked them to be your advocate and advisor.  It is the hope that you’ve done so with the intent of letting them be the lawyer, while you be the client. At Wiley Wheler we specialize in labor and employment law, and we are well versed in the nuances of the situations that can arise within that realm. If you have concerns regarding your employment or feel like your rights have been violated, feel free to contact us to schedule a consultation. 

Marcos De Hoyos
Texas Employment Lawyer Marcos De Hoyos

The Depp v. Heard trial had been dominating news outlets for the past month. In it, actor Johnny Depp accused actor, and former spouse, Amber Heard of defaming him when she claimed that Depp had abused her over the course of their relationship. Recently, a verdict in the trial had been reached. In this verdict, the jury unanimously found that Heard could not substantiate her claims against Depp and that she knew that her allegations of abuse were false when she published her essay outlining Depp’s abuse in 2018. The jury concluded that Heard acted with actual malice when writing her essay. The result of this case is largely unusual. The fact of the matter is that it is exceedingly difficult to prevail on defamation claims and it is the goal of this article to examine why that is.

In order to prevail on a defamation claim, a plaintiff must satisfy four different requirements. First, the plaintiff must show a false statement purporting to be a fact. In other words, an incorrect statement that is being asserted as true. Second, the statement must be published or communicated to a third person. Third, the plaintiff must show fault that amounts to at least negligence. Lastly, the plaintiff must show that the false statements caused some harm to the person that resulted in damages.

The Depp v. Heard, trial, however, operated on a different standard due to the fact that both actors are public figures. In The New York Times Co. v. Sullivan, the Supreme Court held that in order for a public figure to succeed on defamation claims, the public figure plaintiff must demonstrate that the false statements expressed were made with “actual malice.” In Sullivan, the Court specified that actual malice means that the defendant expressed the false statement with “knowledge that it was false or with reckless disregard of whether it was false or not.” In other words, the defendant making the defamatory statements had to know that the statements they were making were false or should have known that they were false.

Suppose, for example, that a plaintiff asserts a defamation claim against a defendant. The plaintiff has to prove to the court that the defendant knew, or should have known, that the statements made were false. The defendant has several avenues through which to contest it. The defendant could show that she was making a statement of an opinion due to the fact that the statement made must be factual. For example, “I think X is a fool” would be considered an opinion even if X has an IQ of 132. On the other hand, if the defendant were to say, “I think Y beats her children,” and this results in Y losing her job, then the plaintiff could very well succeed on a defamation claim given that that the defendant made this statement recklessly and that it resulted in damages to the plaintiff. 

The defendant could also make a showing that, even if her statements were false or factual, she believed them to be true. The defendant could simply claim that the statement was made due to a certain source that she cited or even researched. That could very well be enough to defeat a defamation claim. Alternatively, the false statement could have stemmed from word-of-mouth; perhaps an individual the defendant worked with communicated the statement to the defendant and the defendant believed it.

There are a several means through which one may defeat a defamation claim. Defamation is exceedingly difficult to show because the plaintiff, in a sense, has to show the court the defendant’s state of mind. As such, the Depp v. Heard verdict is an outlier, not the norm. If an individual believes that they have been defamed, then it is preferable to base that belief on research rather than on a blockbuster.

Colin Walsh
Texas Employer Lawyer Colin Walsh

Last week, we discovered that Evan Skinner, our new summer intern, loves comedies, music, politics, and sports.  Also, he plays piano pretty well.  This week ask him about law school and other fun stuff . . . 

  1. 1) Why did you decide to go to law school?

I wanted to go to law school because I felt like it provided a good balance between things I enjoyed doing, like keeping up with politics and public policy, and things that would help me eventually find a stable career. As much as I love politics, it’s not necessarily easy to find a job with solid long-term prospects in that field, especially straight out of college. Law school was an opportunity to continue learning about things I enjoyed learning about while also setting myself up for success in an industry with a lot more long-term stability.

  1. 2) What is your favorite part of law school?

The thing I’ve enjoyed most about UT Law specifically is how high-quality all the instruction is. In undergrad, I had a lot of good professors but also more than a few that were just sort of O.K. At UT Law, every professor I’ve had would have been in my top five undergraduate professors. It’s really excellent and I didn’t expect it to be such a change.

  1. 3) What is your least favorite part of law school?

I expected this going in, and I don’t think anyone would say they especially like it, but the amount of stress law school can put on you is no joke. For as much as I’ve enjoyed my classes and professors, there can also be a lot of pressure, especially at the end of the semester and in exam season. Ultimately, I think I’m going to look back and be glad about that, but it’s not always awesome to experience in the moment.

  1. 4) Why do you want to work for a Plaintiff’s employment litigation firm this summer?

I’m very much about helping people, both in terms of policy preferences and in life in general. I think working to help workers, and helping people who don’t necessarily have a lot of resources or legal training against companies that have both of those things, is a really admirable thing to do. It’s something that makes me feel like I’m doing something to tangibly make people’s lives better.

  1. 5) Who is your favorite Supreme Court Justice, living or dead, and why?

Surprisingly enough, I’ve never really thought about who my favorite justice is. Out of the current Court, I probably like Sonia Sotomayor the most. As far as historical justices, Louis Brandeis, William Brennan, and Thurgood Marshall all did lots of good work and I have a lot of respect for all three of them. 

  1. 6) Who is the law?

I think that everybody has to be the law in some way, because there’s no way to separate the people that enforce the laws from the people who make the laws, and there’s no way to detach the people that make the laws from the people that choose the lawmakers. I think that’s good. Laws are a basic part of every functioning society and every member of that society needs to have some input, even if it’s indirect.

[Editor’s note – We also would have accepted “Judge Dredd” for question 6]

Thanks, Evan, for your insightful answers.  We hope you enjoy working at the firm this summer!