You were pretty sure that you were the last person your former employee would put down as a reference — until the phone call came.
You know their new potential employer is trying to avoid hiring a bad employee, but you’re not sure what you can say. Will the truth get you into trouble?
California has reference immunity
Unlike many other states, employers in California have some legal protections against lawsuits when they give a bad reference. Under CA Civ. Code Sec. 47(c), anything you say about a former employee’s qualification or job performance is considered “privileged” as long as:
- Your statements are truthful
- Your statements are made on credible evidence (not rumor)
- You are not acting with any malicious intent
- You do not comment on any protected speech the employee made nor protected actions that the employee took
For example, you can easily answer the question, “Would you rehire this employee?” You could not, however, tell their prospective employer that your former employee filed a complaint with the Equal Employment Opportunity Commission (EEOC) while working for you, nor that they talked about organizing a union with others.
Avoid half-truths and misleading statements
You could end up in hot water for negligent referrals if you offer misleading statements or half-truths that make a bad employee sound like they’d be a great person to hire. If, for example, you fired the employee because they engaged in sexual harassment while working for you, you would be remiss if you misrepresented the situation to their prospective new employer.
Understanding your rights and obligations as an employer isn’t always easy. Working with an attorney that understands the difficulties you face is often in your best interests.