This month the Governor signed into law Assembly Bill 2770. This new law, set to take effect January 1, 2019, provides an employer with protection should the employer provide an employment reference. Under the new law, employers are protected from defamation claims when advising a prospective employer that the applicant was the subject of a credible sexual harassment claim.
In order for the employer to be protected when it advises a prospective employer of a sexual harassment claim against its former employee, the claim must be based on “credible evidence” and have been made “without malice.” Currently, employers are protected from non-malicious references with respect to job performance or qualifications and existing law authorizes an employer to advise whether or not it would rehire the employee.
The Legislature and Governor believe many employers would not use their privilege to speak out against sexual harassers in the workplace primarily due to fear of a defamation lawsuit or tortious interference with a business opportunity claim and believe the failure to give a truthful reference creates a system where alleged gets to move on and become some other employer’s problem. The new law was passed with the hope it will open the line of communication between former and prospective employers when it comes to the employee’s performance and policy violations.
If you are unsure how to respond to a request for a reference for a former troublesome employee, you should contact your legal counsel before you say anything to the party seeking the reference.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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