When applying for new jobs, many California employees face a common concern: they didn't leave their last job on the best terms, but they have to give an honest list of their last jobs to their prospective employer. So, what can a former employer say to a prospective employer? Can a former employer give a bad reference related to the employee's conduct?

Overview

Many California employees don't realize that a communication between a former and prospective employer is privileged. There is a common misconception that former employers cannot say anything about the performance of an employee to a prospective employer.

This misconception is probably rooted in a common practice for employers to limit the content of their communications with prospective employers. Employers do this to limit their liability for a defamation lawsuit by the employee. In California, however, employers are specifically authorized to state whether or not they would rehire the employee.

The privilege protecting former employers has limits. Employers will not receive protection under the privilege under several circumstances:

• Malicious Statements. The employer may not make statements rooted in malice against the employee.
• Unsolicited Communications. The employer is not protected by the privilege if they take it upon themselves to contact the new or prospective employer.
• False Statements. The employer may not make false statements about the employee.
• Statements about Protected Activities. The employer may not make statements concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected.

What is a "Privileged" Statement?

Very simply, a privileged statement is one that is not admissible in court to prove a certain thing. In the context of defamation lawsuits, a statement is only defamatory if it is not privileged. So, a privileged statement would be inadmissible to prove defamation.

Of course, many non-privileged statements are also not admissible in court, but that usually has to do with rules of evidence unrelated to privilege doctrines. But privileged statements, as a category, are ones that can't be admitted into court.

A common example of a privileged statement is a confidential communication made between an attorney and his client. Due to the important nature of the attorney-client relationship, courts give special rights to attorneys and their clients. So a client does not need to fear giving truthful information to his or her attorney because it cannot be used against him in court. There are, of course, exceptions to the privilege, but as a general matter the privilege usually holds up.

In this context, the fact that a statement is privileged between a former and prospective employer simply means that the former employer cannot be liable for the content of their statements to the prospective employer. If the statement itself is not admissible to prove defamation, then the former employee cannot hold the employer accountable for the statement. As mentioned above, however, there are several important limitations to that privilege.

Malicious Statements

If a statement is made by a former employer with malice, the privilege protecting the employer's reference does not arise. The California Supreme Court has defined malice in this context as a state of mind arising from hatred or ill will, which evidences a willingness to injure another person. Malice can be difficult to prove and, in many cases, it cannot be inferred by the statement itself.

Unsolicited Communications by a Former Employer

Imagine the following situation: John used to be employed by ABC Inc. His supervisor, Bob, disliked John and treated him poorly. John eventually left ABC Inc. to find another job. After he left, Bob called all of the local businesses to tell them about how terrible an employee John was. Does Bob still have the privilege protecting a former employer's reference?

No. The privilege only kicks in if the former employer is requested by the prospective employer to give the information. An employer that takes their own initiative to communicate with a prospective employer, without having first been requested by the prospective employer to do so, does not receive the protections provided by the privilege.

Courts have also noted that the privilege may be lost if the former employer excessively communicates or includes statements that are irrelevant to the matters being discussed. So, employers that want to ensure their statements remain privileged, should restrict their statements to those concerning matters being discussed.

So, in Bob's case, because he preemptively contacted prospective employers without being requested to do so, his statements cannot be protected under the privilege protecting a former employer's reference.

False Statements

False statements are generally not protected by the privilege of a former employer's reference. The employer must have credible evidence for the assertions it makes about former employees. Courts have held that an employer cannot report mere rumors or workplace gossip in a reference to prospective employers.

So, even if a former employer believes something is true, they cannot report it to a prospective employer unless they have reasonable grounds for believing in the truth of the statements they make. Those reasonable grounds must be evidence-based, rather than mere speculation.

Statements about Protected Activities

An employer does not receive the privilege protecting a former employer's reference if the former employer communicates about the speech or activities of the former employee if the speech or activities of the employee were constitutionally protected.

Whether an activity is constitutionally protected can be a very fact-specific inquiry. Examples of constitutionally protected activities might include private activities, the exercise of a person's right to free speech, a person's right to petition in connection with a public issue, the right to collective bargaining or picketing, or the exercise of a person's religion.

So, a former employer could not, for example, receive the privilege if they communicated about the fact that the worker was a member of a specific political party or that they engaged in political activities during non-work hours.

Non-privileged Statements & Liability

Simply because a statement is not privileged does not automatically mean that an employer is liable to the employee. Importantly, the employee still must bring evidence to show that the employer has defamed him. In California, a defamation lawsuit requires three elements. The employee must show:

• Falsity. The employee must demonstrate that the person being sued (called the defendant) made a false and unprivileged statement of fact, not opinion, about the employee (called the plaintiff).
• Publication. The employee must demonstrate that the false statement was communicated to someone else besides the employee. Evidence of a communication by a former employer to a prospective employer is sufficient to show "publication." The communication can be either spoken or written.
• Damage. The employee must demonstrate that damage occurred to the employee's reputation or occupation. Damaging statements can include:
  • False accusations of criminal conduct.
  • Accusing someone of a lack of integrity or honesty.
  • Falsely claiming someone is incompetent.
  • Making other false statements about someone else's personal characteristics or behavior.

We have previously covered the requirements of a defamation claim here.

Final Thoughts

The law concerning employment references in California is very fact-specific and will turn on the situations present in each case. It can be difficult to know whether a former employer's communication with a prospective employer will be privileged. Employers would be most protected by limiting the scope of their statements, but many choose not to do so.

If you believe your employer has defamed you, you might have a right to recover damages from that employer. If you would like a confidential free consultation to discuss the facts of your case, give Petronelli Law Group, PC a call to determine your options: (949) 954-8181.

References

Civ. Code, § 47, subd. (c).
Id.
Id.
Civ. Code, §§ 45, 46.
Evid. Code, §§ 950-962.
Civ. Code, § 47; Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724 n.7.
Agarwal v. Johnson (1979) 25 Cal.3d 932, 944.
See, e.g., Civ. Code, § 48.
Civ. Code, § 47, subd. (c).
Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841, 847.
Civ. Code, § 47, subd. (c).
Id.
Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1375.
Id.
Civ. Code, § 47, subd. (c).
Cal. Const., art. I, § 1.
Cal. Const., art. I, § 2; U.S. Const., amend. I; Code Civ. Proc., § 425.16, subd. (b)(1).
Code Civ. Proc., § 527.3.
Jensen v. Hewlett Packard Co. (1993) 14 Cal.App.4th 958, 964-965.