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The Nevada Supreme Court Adopts New Defense to Employee Defamation Suits

Volume 1, Issue 6
April 8, 2002

Court holds that employer has the right to reply to former employee’s comments without being subject to claim of defamation.

In a rare display of judicial power, the Nevada Supreme Court recently ordered a writ of mandamus that effectively compelled the Eighth Judicial District Court to grant an employer’s motion to dismiss. In so doing, the Court likewise adopted a new defense in cases involving defamation claims. Mike Anzalone, a former investigator for the Attorney General’s Office (“AG’s Office”), worked there from 1993 until his resignation in 1996. Prior to his resignation, Anzalone was working on a routine criminal investigation of a Gaming Control Board employee, who had been arrested for cheating activity. In an interview with the Las Vegas Sun regarding the investigation, Anzalone asserted that he was forced to resign because he refused orders to engage in what he considered to be unlawful investigatory tactics. In a letter responding to Anzalone’s allegations, likewise printed in the Las Vegas Sun , Attorney General Frankie Sue Del Pappa stated that Anzalone was given the choice to resign, and that he otherwise would have been fired for instances of severe misconduct not related to the investigation.

When Anzalone later sued the AG’s Office and several of its officers alleging defamation, among other claims, the AG’s Office filed a Motion to Dismiss, which the lower court denied. On appeal, the Nevada Supreme Court took unique action in ordering that the case be dismissed. In so doing, the Court held that Del Pappa’s statements were protected under the common law privilege of reply. The newly adopted privilege entitles those who are attacked with potentially defamatory statements a limited right to reply to the attack. The privilege, however, will be lost if the reply is 1) irrelevant or non-responsive to the attack, 2) disproportionate to the attack, 3) excessively publicized, or 4) done with malice.

As a result of this decision, employers now have an established, although limited, right to respond to defamatory attacks from prior and current employees.

State of Nevada, Office of the Attorney General v. Eighth Judicial District Court, 118 Nev. Adv. Op. No. 16 (March 13, 2002).

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.