Overnite Transportation Co. (OTC) is a nationwide trucking company. James Gibson worked for OTC out of the Kaukauna, Wisconsin, terminal, a nonunion facility. Gibson began working for OTC in May 1999. In October 1999, the Teamsters went on strike and established a picket line at OTC's Milwaukee terminal, a union facility. Due to the strike, the Milwaukee terminal was essentially shut down. OTC therefore ran some of the Milwaukee freight through Kaukauna. Because Gibson had previously worked in Milwaukee and was familiar with the area, he was temporarily assigned to pick up freight at the Milwaukee facility. When he was there, Teamster supporters harassed him. Gibson decided to resign from Overnite, telling Tim Behling, the terminal manager in Kaukauna, that he had to quit immediately to help his ailing grandfather's company.

In fact, Gibson went to work for another trucking company, USF Holland, the next day. Gibson testified at trial that he lied because he was afraid Behling would retaliate against him for quitting to avoid confrontation with the Teamsters in Milwaukee and for going to work for a union company. He started at USF Holland as a probationary employee. In January 2000, USF Holland hired Robert Arden & Associates to check Gibson's background. An Arden representative called Behling for an employment reference. The report Arden generated indicated that Behling made the following comments regarding Gibson: "He was way below average. He needed to improve his work ethic and attitude." "He was late most of the time and he missed anywhere from two to three days a week." "He had a real problem with authority." "He has a very negative attitude."

"He's everybody's best friend-so he thinks. He did get along with some people, but most saw through him." "His paperwork was fair. It needed help like you wouldn't believe." Behling also indicated that Gibson's trustworthiness was "borderline" and that he would "never" rehire Gibson. OTC was the only one of Gibson's former employers to give a negative report to Arden. Based on the report, USF Holland terminated Gibson's employment and Gibson sued for defamation. Gibson testified that people in the trucking industry were aware of Arden's report, and as a result, it took a year and a half to find another job. The jury found that Behling's statements were defamatory and it awarded him $33,000 in compensatory damages and $250,000 in punitive damages. The court entered judgment on the jury's verdict and OTC appealed.] PETERSON, J....

An employer has a conditional privilege under WIS. STAT. § 895.487 to make statements about a former employee. Overnite argues that, to abuse the privilege, statements must be made with actual malice, that is, with knowledge of falsity or with reckless disregard for the truth. Torgerson v. Journal/Sentinel. Inc., 210 Wis.2d 524, 528, 563 N.W.2d 472 (1997).

Express malice, however, requires only a showing of ill will, bad intent, envy, spite, hatred, revenge, or other bad motives against the person defamed. Polzin v. Helmbrecht, 54 Wis.2d 578, 587-88, 196 N.W.2d 685 (1972). Because the jury found express malice, and not actual malice, Overnite contends it cannot be held liable.... An employer who, on the request of an employee or a prospective employer of the employee, provides a reference to that prospective employer is presumed to be acting in good faith and, unless lack of good faith is shown by clear and convincing evidence, is immune from all civil liability that may result from providing that reference. The presumption of good faith under this subsection may be rebutted only upon a showing by clear and convincing evidence that the employer knowingly provided false information in the reference or that the employer made the reference maliciously ... (Emphasis added.) The statute is silent as to whether actual or express malice is required. ...

At the time the statute was enacted, the common law simply required express malice to rebut the conditional privilege.... ("The proper test to apply to determine whether the nonconstitutional conditional privilege was abused is a question of express malice. This is what is termed ‘common law malice,' by the United States Supreme Court." (Citation omitted.)). The Legislative Reference Bureau encouraged the legislature to specifically require express malice in the statute as well in order to clarify the standard. However, the legislature made no change. Overnite interprets the legislature's failure to make the suggested change to mean it intended the standard to be actual malice. Gibson's interpretation is that the legislature intended to retain the common law standard of express malice. We agree with Gibson. WISCONSIN STAT. § 895.487(2) provides [the] ways in which the presumption of good faith may be rebutted:

(1) "the employer knowingly provided false information in the reference," [or]

(2) "the employer made the reference maliciously," ... The first option could arguably require actual malice because it requires that the employer act "knowingly." ...

The second option simply requires malice. The legislature was alerted to the ambiguity of the word "maliciously" but did not make any change. Common law prevails in Wisconsin until changed by statute. To abrogate the common law, the intent of the legislature must be clearly expressed, either in specific language or in a manner that leaves no reasonable doubt of the legislature's purpose. We therefore conclude that the legislature intended to keep the same standard of malice as existed in the common law- express malice. Our conclusion is further supported by the jury instructions.

Like WIS. STAT § 895.487(2), WIS JI- Civil 2507 lists ways in which the jury can find that an employer abused its privilege to make statements about former employees. First, the jury may find that the defendant made the statements knowing that they were false or in reckless disregard as to the truth or falsity of them. This is actual malice. However, the jury may also find defamation where the defendant made statements solely from spite or ill will. This is express malice, which is what the jury found here. Actual malice is not required...

Case Questions

1. Are employers who provide references to prospective employees presumed to be acting in good faith unless a lack of good faith is shown by clear and convincing evidence?

2. What is the difference between "actual malice" and "express malice"? Was the employer liable for defamation in this case even though the jury found express malice and not actual malice?