Providing Information to Current Employer on Former Employer by Employee
Full Question:
Answer:
Employees in some cases sue former employers for libel (defamation in written form) or slander (defamation in oral form). A defamatory statement is one that harms a person's reputation by lowering his or her standing in the community or deterring others from associating with him or her. Defamation exists when the statement is false, communicated to a
third party, and no special privilege exists. Successful lawsuits have been based on statements in discharge letters and negative references to prospective employers. Truth is an absolute defense in any defamation lawsuit, and thus it is important that an employer always state truthful reasons for any termination.
It is illegal for an employer to injure, through misrepresentation, an employee’s reputation or prospects for new work. Every employee has the right to be protected from insult, slander or libel under the California Civil Code Section. Any person who prevents or attempts to prevent the re-employment of a former employee through misrepresentation is liable for treble damages. See California Labor Code Sections 1050 and 1055. Employers may be liable for the misrepresentations of their employees as well. See California Labor Code Sections 1052 and 1055. Suggesting through innuendo, omitting positive facts, making false statements, or
reporting rumor all could be grounds for legal liability.
The following are CA statutes:
1050. Any person, or agent or officer thereof, who, after having
discharged an employee from the service of such person or after an
employee has voluntarily left such service, by any misrepresentation
prevents or attempts to prevent the former employee from obtaining
employment, is guilty of a misdemeanor.
1052. Any person who knowingly causes, suffers, or permits an
agent, superintendent, manager, or employee in his employ to commit a
violation of sections 1050 and 1051, or who fails to take all
reasonable steps within his power to prevent such violation is guilty
of a misdemeanor.
1053. Nothing in this chapter shall prevent an employer or an
agent, employee, superintendent or manager thereof from furnishing,
upon special request therefor, a truthful statement concerning the
reason for the discharge of an employee or why an employee
voluntarily left the service of the employer. If such statement
furnishes any mark, sign, or other means conveying information
different from that expressed by words therein, such fact, or the
fact that such statement or other means of furnishing information was
given without a special request therefor is prima facie evidence of
a violation of sections 1050 to 1053.
1054. In addition to and apart from the criminal penalty provided
any person or agent or officer thereof, who violates any provision of
sections 1050 to 1052, inclusive, is liable to the party aggrieved,
in a civil action, for treble damages. Such civil action may be
brought by such aggrieved person or his assigns, or successors in
interest, without first establishing any criminal liability under
this article.
1055. Every public utility corporation shall, upon request by any
employee leaving its service, give to such employee a letter stating
the period of service and the kind of service rendered to the public
utility corporation by the employee.
44. Defamation is effected by either of the following:
(a) Libel.
(b) Slander.
45. Libel is a false and unprivileged publication by writing,
printing, picture, effigy, or other fixed representation to the eye,
which exposes any person to hatred, contempt, ridicule, or obloquy,
or which causes him to be shunned or avoided, or which has a tendency
to injure him in his occupation.
45a. A libel which is defamatory of the plaintiff without the
necessity of explanatory matter, such as an inducement, innuendo or
other extrinsic fact, is said to be a libel on its face. Defamatory
language not libelous on its face is not actionable unless the
plaintiff alleges and proves that he has suffered special damage as a
proximate result thereof. Special damage is defined in Section 48a
of this code.
46. Slander is a false and unprivileged publication, orally
uttered, and also communications by radio or any mechanical or other
means which:
1. Charges any person with crime, or with having been indicted,
convicted, or punished for crime;
2. Imputes in him the present existence of an infectious,
contagious, or loathsome disease;
3. Tends directly to injure him in respect to his office,
profession, trade or business, either by imputing to him general
disqualification in those respects which the office or other
occupation peculiarly requires, or by imputing something with
reference to his office, profession, trade, or business that has a
natural tendency to lessen its profits;
4. Imputes to him impotence or a want of chastity; or
5. Which, by natural consequence, causes actual damage.
47. A privileged publication or broadcast is one made:
(a) In the proper discharge of an official duty.
(b) In any
(1) legislative proceeding,
(2) judicial proceeding,
(3) in any other official proceeding authorized by law, or
(4) in the
initiation or course of any other proceeding authorized by law and
reviewable pursuant to Chapter 2 (commencing with Section 1084) of
Title 1 of Part 3 of the Code of Civil Procedure, except as follows:
(1) An allegation or averment contained in any pleading or
affidavit filed in an action for marital dissolution or legal
separation made of or concerning a person by or against whom no
affirmative relief is prayed in the action shall not be a privileged
publication or broadcast as to the person making the allegation or
averment within the meaning of this section unless the pleading is
verified or affidavit sworn to, and is made without malice, by one
having reasonable and probable cause for believing the truth of the
allegation or averment and unless the allegation or averment is
material and relevant to the issues in the action.
(2) This subdivision does not make privileged any communication
made in furtherance of an act of intentional destruction or
alteration of physical evidence undertaken for the purpose of
depriving a party to litigation of the use of that evidence, whether
or not the content of the communication is the subject of a
subsequent publication or broadcast which is privileged pursuant to
this section. As used in this paragraph, "physical evidence" means
evidence specified in Section 250 of the Evidence Code or evidence
that is property of any type specified in Chapter 14 (commencing with
Section 2031.010) of Title 4 of Part 4 of the Code of Civil
Procedure.
(3) This subdivision does not make privileged any communication
made in a judicial proceeding knowingly concealing the existence of
an insurance policy or policies.
(4) A recorded lis pendens is not a privileged publication unless
it identifies an action previously filed with a court of competent
jurisdiction which affects the title or right of possession of real
property, as authorized or required by law.
(c) In a communication, without malice, to a person interested
therein,
(1) by one who is also interested, or
(2) by one who stands
in such a relation to the person interested as to afford a reasonable
ground for supposing the motive for the communication to be
innocent, or
(3) who is requested by the person interested to give
the information.
This subdivision applies to and includes a
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 a
prospective employer of the applicant. This subdivision authorizes a
current or former employer, or the employer's agent, to answer
whether or not the employer would rehire a current or former
employee. This subdivision shall not apply to a communication
concerning the speech or activities of an applicant for employment if
the speech or activities are constitutionally protected, or
otherwise protected by Section 527.3 of the Code of Civil Procedure
or any other provision of law.
(d) (1) By a fair and true report in, or a communication to, a
public journal, of
(A) a judicial,
(B) legislative, or
(C) other
public official proceeding, or
(D) of anything said in the course
thereof, or
(E) of a verified charge or complaint made by any person
to a public official, upon which complaint a warrant has been issued.
