Why is an employer not liable for statements?
Why is Bob's statement not protected?
How many facts are needed to prove defamation in California?
What happens if you give information without asking?
What is malice in California?
Why does a client not need to fear giving truthful information to his or her attorney?
Can an employer report rumors to prospective employers?
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Can an employer give a bad reference in California?
The California Labor Code prohibits employers from making exaggerated or false statements about their former employees when giving a job reference. It is important to understand what an employer in California can and cannot say about a former employee when giving a job reference.
What are employers allowed to say in references?
Employers can usually be truthful during a reference check, but they should be aware of their rights and responsibilities under state law. There are no federal laws that address what an employer can or can't say about a worker.
What is considered confidential employee information in California?
Confidential Employee Information Confidential employee personal and professional information includes but is not limited to: Personal data: Social Security Number, date of birth, marital status, and mailing address. Job application data: resume, background checks, and interview notes.
What are you not allowed to say in a reference?
A lot of references only say what your job title was and when you worked there. The reference has to be accurate. Your employer can't say anything that's not true. They also have to be fair when they decide what to put in the reference.
What is a former employer allowed to say about you?
There are no federal laws restricting what information an employer can disclose about former employees.
What is HR allowed to ask from previous employers?
The HR employee can ask a former employer whether they'd rehire a job candidate. The former employer's HR policies might prohibit anything beyond a "Yes" or "No" response to this particular inquiry, but a "No" response gives the prospective employer something to think about.
What can employers disclose about former employees in California?
Under California law, an employer is not obligated to provide a reference for a former employee, but should it choose to do so, the employer may provide information about job performance, qualifications, and eligibility for rehire.
What HR information is confidential?
The Dimensions of Employee-HR Confidentiality This data, which can pertain to age, sex, religion, race or national origin, must remain confidential. Similarly, social security numbers, birth dates, home addresses and spousal information also must remain confidential within employee personnel files.
What is the California rule on confidentiality?
[8] Disclosure of confidential information must be no more than is reasonably necessary to prevent the criminal act. Under paragraph (D), disclosure of confidential information, when made, must be no more extensive than the member reasonably believes necessary to prevent the criminal act.
Can an employer say bad things in a reference?
It is commonly assumed that a previous employer must give a reference and is legally prohibited from giving a bad one. This is not the case. Your employer can give you a bad or unfavourable reference, but only if they genuinely believe it to be true and accurate and have reasonable grounds for that belief.
Who should you never list as a reference?
People You Should Never Use as a Professional ReferenceFamily Members. Believe it or not, candidates have put a family member (or two) on their reference list. ... Anyone Who Fired You. A person who fired you will either say one of two things: ... Friends or Roommates. ... Anyone Who's Not Expecting a Call.
Do I have to reference everything I say?
You need to provide a reference whether or not you are using the exact words. Even if you change the words, someone might want to find out more about the information you are referring to. If you use the same words as the original, you need to use quotation marks around this section, followed by the reference.
Can you say negative things in a reference?
There are no state or federal laws that prohibit an employer, a coworker, or anyone else from providing a poor reference for someone else. However, an employer may cross the line and face liability if he or she makes an untrue statement about an applicant's performance.
Do employers actually talk to references?
Essentially, yes. While it's true that not 100% of Human Resources (HR) departments will call your references during pre-employment screening, most do. If you're about to begin a job search, you should expect to have your references checked.
Who should you not list as a reference?
People You Should Never Use as a Professional ReferenceFamily Members. Believe it or not, candidates have put a family member (or two) on their reference list. ... Anyone Who Fired You. A person who fired you will either say one of two things: ... Friends or Roommates. ... Anyone Who's Not Expecting a Call.
Can you say anything negative on a reference?
As long as it's fair and accurate, a reference can show that you're not suitable for a job. For example, a reference can show you do not have enough experience for a job or say that you were dismissed.
Can Employers Give a Bad Reference for a Former Employee?
Working Through an Unstable Economy. When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits.
Job References & Hiring: What can employers say in California?
What can former employers say during a reference phone call in California. Optimum Employment Lawyers explain hiring law, defamation & privileges.
Employee Reference Checks - California
If you have selected an applicant who is a current or prior State employee, you or your designee must review the individual’s Official Personnel Folder (OPF). Following are the steps you need to take for arranging to review a potential employee’s personnel file:
State Laws on References and Statements By Former Employers
Many states regulate what an employer may say about a former employee—for example, when giving a reference to a prospective employer. In some states, employers may provide information about a former employee only with the employee's consent.
What to Do if a Former Employer Gives You a Bad Reference
Navigating the sometimes choppy waters of the job market can be tough for anyone, but it is especially frustrating when a former employer is speaking negatively about your performance. If you have been searching for a job and find things are going well until potential employers contact your references, you might be a victim of […]
California Reference Law | Nolo
In California, employers are protected from liability for defamation if they provide reference information based on credible evidence, without malice.
What does it mean when an employer makes a statement with malice?
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.
Why is Bob's statement not protected?
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.
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.
What is a malicious statement?
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.
What does it mean when a statement is not privileged?
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:
What is malice in California?
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.
Is a privileged statement defamatory?
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.
What happens if an employer knows that an applicant is not suitable for the position?
If a prospective employer knew, or should have known, based on a reasonable inquiry into an applicant’s background that the person was not suitable for the position and subsequently places a dangerous or unqualified individual in a position where s/he can harm co-workers or third parties, the employer can be held liable for the employee’s acts.
Why is it important to conduct a reference check?
Unfortunately, in the real world, it is essential to conduct thorough reference checks because: Applicants may not always provide accurate or truthful information on their resume. Application materials are frequently incomplete. Lack of information leads to bad hiring decisions. Negligent hiring claims are more likely.
What is negligent hiring?
Negligent hiring/negligent retention – when a current or former employer refuses to disclose or selectively discloses information about the qualifications of an applicant, it minimizes the chances of a defamation lawsuit for that employer. However, it forces prospective employers to make selection decisions based on incomplete or faulty information and exposes these employers to another type of liability – negligent hiring and negligent retention.
Why is it important to be cautious of references?
Be cautious of references that are extremely positive or negative. An extremely flattering review may be given by the current employer in an effort to ensure that a problem employee will be hired by another agency. Extremely negative ratings may result from a desire to retaliate against the person for attempting to leave the job or for personal reasons. You should evaluate these relative to all references received on the applicant and assign the appropriate weight.
How many references are needed for DGS OHR 18?
Note: The DGS OHR 18 form allows for current supervisor and three references; however, you may ask for additional references. If you do request additional references, you may revise the form accordingly. You are limited to contacting only those individuals listed on the release form or the applicant’s application and/or resume.
Why is a half hearted reference check bad?
On the other hand, a half-hearted reference check raises the risk of hiring an incompetent or dishonest employee.
Why do you do a reference check?
You should be taking steps during the interview and reference checking processes to acquire as much information as possible about the applicant’s previous job performance in order to make an informed hiring decision.
What is the California case law for not providing enough information about an employee?
California case law also subjects employers to liability for not providing enough information about an employee, if they choose to provide a detailed reference. For example, a school district gave a glowing recommendation for a vice principal who had in fact been accused of sexual misconduct and inappropriate behavior with students. The reference provided unconditional praise for the employee, recommending him "without reservation." When the employee was hired by a new school district and again accused of sexual misconduct with a female student, her parents were allowed to sue the former school district. Although the district was under no obligation to provide a reference for the employee in the first place, once it chose to do so, it had a duty not to misrepresent the facts.
What is the law in California that protects employers from defamation?
In California, employers are protected from liability for defamation if they provide reference information based on credible evidence, without malice.
What is a release for a former employer?
If you want a former employer to provide more detailed information that the law requires, you might consider signing a release: an agreement giving the employer permission to respond to prospective employers who call for a reference, and giving up your right to sue the employer for anything said as part of that process.
What is qualified privilege in California?
California employers enjoy a qualified privilege when they provide reference information to prospective employers. This means that an employer is immune from liability (cannot be sued) for defamation, as long as the employer provides the information to a prospective employer who requests it and acts without malice. California law specifically states that this protection extends to statements about job performance, qualifications, and eligibility for rehire. However, it does not protect statements about an employee's constitutionally protected speech or activities, nor statements about an employee's union or other concerted activities.
Can an employer be sued for false statements?
However, the employer can be sued if it knows the statements are false or acts with reckless disregard for their trust or falsity.
Do you have to provide a service letter to an employee?
California law requires a service letter only for employees of public utility companies; the letter must indicate how long the employee worked for the company and the type of service the employee provided. Other employees don't have a legal right to a service letter.
Does California have a law that protects employees from unions?
California law specifically states that this protection extends to statements about job performance, qualifications, and eligibility for rehire. However, it does not protect statements about an employee's constitutionally protected speech or activities, nor statements about an employee's union or other concerted activities.
Why are employers reluctant to provide references?
Employers are reluctant to provide job references. Employers' hesitancy is grounded in fear of litigation by ex-employees. A bad reference could give rise to many different types of claims, including defamation, interference with prospective advantage, blacklisting under Labor Code section 1050, or even retaliation for protected activity in which the employee engaged during his or her employment. Employers are in fact afforded some protection by the "common-interest privilege" contained in California Civil Code section 47 (c). A recent decision by the Fourth District Court of Appeals, Noel v. River Hills Wilsons, Inc ., clarifies and reaffirms this protection.
What happens if an employer provides a negative reference?
If the employer will be providing a negative reference with respect to a former employee, the employer will face the possibility of a legal claim by the employee. As explained above, the protection from defamation claims is not absolute. Likewise, employers can incur significant legal defense costs in defeating even frivolous claims.
Why is the "based on credible evidence" language included in the statute?
The Court noted the "based on credible evidence" language was included in the statute simply to emphasize it is not reasonable for employers to report mere rumors or unfounded gossip. If a communication was based on mere rumor, for instance, the privilege may be lost because there would be no reasonable grounds for believing the truth of the publication. This prong of the analysis is related to the malice standard referenced above.
Why designate only certain individuals to handle all reference requests?
Designate only certain individuals to handle all reference requests. This provides assurances the policy is being applied consistently. It also helps avoid contradicting references, as it is not unusual for management employees to have different opinions regarding what information should be communicated about a former employee.
Can an employer be liable for a false job reference?
An employer can be liable for a false job reference only if it acts in "reckless disregard of the truth."
Do you need to request a reference in writing?
Require any reference request be in writing. This provides valuable documentation and strengthens any common-interest privilege claim; the common-interest privilege only applies if there is a request from one whom the employer reasonably believes is a prospective employer. Employers also should document all the communications and only provide the reference or verification in writing.
Do employers provide references?
Most employers choose to provide at least some information in response to reference requests. For example, it is not uncommon for employers to verify dates of employment, positions held and rates of pay, but nothing more. Some employers choose to go further and provide letters of recommendation or answer more substantive questions, such as whether the applicant is subject to rehire. Regardless of the specific practice chosen by employers, the following tips could help avoid many legal and practical problems:
Why do employers need to verify employment in California?
Because of the relatively generous legal protection the state provides , businesses conducting employment verification in California should be able to convince employers to share even quite sensitive details, such as why the employee left the company. In states with fewer protections, you may need to limit your employment verification questions to the basics.
How to verify employment?
Basic employment verification corroborates someone’s claim they were once employed at a certain company. Often, the verifier, generally a human resources rep from the company at which an employee seeks employment, will ask for additional details. Employment verification queries may include the following: 1 The employee’s start and end dates 2 Job title or position with the company 3 Reason for leaving the company 4 Income verification for the employee, including salary information (Prohibited in California) 5 Job performance 6 Any skills and types of experience, such as certifications or experience working with specific technologies
What is employment verification?
Basic employment verification corroborates someone’s claim they were once employed at a certain company. Often, the verifier, generally a human resources rep from the company at which an employee seeks employment, will ask for additional details. Employment verification queries may include the following: The employee’s start and end dates.
What is Section 47 C?
Section 47 (c) of California’s civil code classes “communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to , and upon request of, one whom the employer reasonably believes is ...
Can employers check salary history?
In January 2018, California enacted a law barring employers from checking salary history information for prospective employees. In fact, section 432.3 of the California labor code specifically states that “An employer shall not rely on the salary history information of an applicant for employment as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant.”
Does a severance agreement protect against malicious statements?
Note that this law does not protect employers against making malicious statements about a former employee, nor does it protect a former employer who reaches out to a prospective employer rather than waiting for that prospective employer to make contact. Finally, if the employee had a severance agreement that includes a nondisparagement clause, the former employer may be limited in what they can say about the employee.
Can former employees sue employers?
That means former employees can’t sue the employer based on such communications — California specifically shields any privileged communication from defamation claims. Therefore, employers can feel safe about sharing details of an employee’s working history, even when those details may cost the former employee a job offer or cause them other problems.
What is negligent referral?
Last, there are cases on “negligent referral.” This occurs when the former employer provides little or no information on an ex-employee. When that failure causes harm to an innocent third party, the new employer can sue the previous employer for failing to disclose information the employer knew to be true and should have reported.
What do future employers depend on?
Future employers depend, to a certain degree, on getting information about applicants. It is helpful to find out if an applicant was frequently late, missed work often, was insubordinate, etc.
What is Section 47 C?
The Civil Code Section 47 (c) offers protection when answering the question of if a former employee is, or is not, eligible for rehire as long as the statement is made “without malice.” It can be very telling to hear such a response from a former employer.
Is it common to have a negligent referral?
Negligent referral cases are not common , but there is that body of law that could come back to haunt a former employer. Once an employer decides how to handle reference requests, it is a good idea to run the policy by an attorney to assure that it is a good course of action. Staff Contact: Dana Leisinger.
Should tardiness be cited?
For example, if an employee was frequently late but the lateness was due to a physical problem, tardiness should not be cited. If you think an employee was a troublemaker, but indeed he/she was a whistleblower, it should not be mentioned.
Do employers provide dates of employment?
For that reason, many employers prefer to simply provide dates of employment and position held. Other employers do provide a wealth of information, and again — as long as they are being truthful, the law protects them. Future employers depend, to a certain degree, on getting information about applicants.
Can an employer give reasons for termination?
No — an employer can provide reasons for separation/termination, but many employers are uncomfortable doing so due to concerns about a lawsuit from a former employee for defamation.
Who can provide job references?
Only one person, usually a trained HR professional , should be permitted to provide job references. This person should make it a point to review the applicable state laws where the employee resides and where the prospective employer is located. Also, care should be taken to ensure that the exact same process is used for each job reference request to avoid any claims of discrimination.
Do you have to complete an application form?
It's also a good idea for employers to require all applicants to complete an application form—in addition to or instead of a resume—and to include a release for employers and other entities from which they might request a reference, Rennekamp said.
Can an employer say anything about a worker?
There are no federal laws that address what an employer can or can't say about a worker. Many states, however, have enacted legislation that gives employers a qualified immunity when providing information for a reference check. These statutes generally provide that an employer is immune from civil liability when it responds to a reference check in good faith, explained Molly Lee Kaban, an attorney with Hanson Bridgett in San Francisco. The immunity is lost, however, if it can be shown that the employer knowingly or recklessly provided false or misleading information or acted with malicious intent.
Should employers ask about rehire?
Employers shouldn't ask or answer questions about whether a person is eligible for rehire, Rennekamp said. "The answer you get might not indicate anything except how well the person giving the reference liked the individual and will certainly not contain enough specifics on which to base a hiring decision."
Should employers maintain control of their organization?
Employers should maintain control of the information that their organization gives out, Rennekamp said. They might do that by putting limits on who can give a reference or what information can be provided. "However, we should all keep in mind that all employers need information about past performance and behavior in order to determine if an individual is a good fit for the position," she added.
Do employers have to be familiar with the laws?
Thus, employers should be familiar with the specific laws for the states in which they operate.
Can an employer be sued for slander?
None of these statutes provides the employer with complete immunity, said Sage Knauft, an attorney with Walsworth in Orange, Calif. The employer still could face a defamation (libel or slander) lawsuit from the employee or a negligent referral laws uit from the prospective employer if care was not taken in limiting the type of information provided and making sure that the information was given to the correct person.
Why is an employer not liable for statements?
Importantly, an employer is not automatically liable for their statements simply because the statement isn’t privileged. In addition to overcoming the common-interest privilege, an employee will need to prove other facts to justify a lawsuit against the employer. 3.1.
Why is Bob's statement not protected?
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.
How many facts are needed to prove defamation in California?
To support a defamation lawsuit, the employee still must bring evidence to show that the employer has defamed him. In California, defamation requires three key facts to be proven (these are sometimes called “elements” of the claim): Falsity.
What happens if you give information without asking?
And, if the information was given without being requested by the potential employer, it is strong evidence that the statement is false or made with the intent to prevent the employee from being hired. 6 If that is the case, the former employer may have broken the law by volunteering the information. 7
What is malice in California?
13 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. 14
Why does a client not need to fear giving truthful information to his or her attorney?
Because of this, 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.
Can an employer report rumors to prospective employers?
The employer must have credible evidence for the assertions it makes about former employees. 20 Courts have held that an employer cannot report mere rumors or workplace gossip in a reference to prospective employers. 21. So, even if a former employer believes something is true, they cannot report it to a prospective employer unless they have ...
Overview
What Is A "Privileged" Statement?
Malicious Statements
Unsolicited Communications by A Former Employer
False Statements
Statements About Protected Activities
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: 1. Falsity.The employee must demonstrate that the per...
Final Thoughts
Defamation and References
California Law on References
- California employers enjoy a qualified privilege when they provide reference information to prospective employers. This means that an employer is immune from liability (cannot be sued) for defamation, as long as the employer provides the information to a prospective employer who requests it and acts without malice. California law specifically state...
Getting A Reference
The Facts of The Case
The Common-Interest Privilege
Protected Communications Must Be Based on Credible Evidence
Communications Made Without Malice Are Privileged
Reference Policy Considerations
- Even given the protection to employers confirmed in the Noel decision, the question remains whether providing substantive job references (more than dates of employment, for instance) is a good practice for employers. If the employer will be providing a negative reference with respect to a former employee, the employer will face the possibility of a...
Practical Tips