California Civil Code Section 47 makes certain types of communications privileged (protected) against civil claims of defamation. A new law, AB 2770, will expand the qualified privilege to now encompass “complaints of sexual harassment by an employee, made without malice (malice means statements made with complete disregard for the truth or false accusations made out of spite, ill will, or hatred towards the alleged harasser), to an employer based on credible evidence and communications between the employer and interested persons regarding a complaint of sexual harassment. It also authorizes an employer to answer, without malice, whether the employer would rehire an employee and whether or not a decision to not rehire is based on the employer’s determination that the former employee engaged in sexual harassment.”
Despite the expanded “qualified privilege,” employers are still advised to exercise caution. We often counsel employers to treat employment verification calls as if the person calling in is the former employee’s best friend or family member to see what you will say. Also consider having the former employee sign a release before any information is given out. Make sure to tell the employee in writing that all information will be released, the good, the bad and the ugly. Having a clear paper trial will provide you with an additional layer of protection if that employee later sues for defamation or blackballing.
If you have any questions about the hiring or firing process, or any other employment law matter, please call LightGabler at 805-248-7208.