Many employers are reluctant to provide references for former employees because of the risk that giving a negative reference can lead to a defamation lawsuit. To deal with this problem, California has a reference immunity law.
Under this law, truthful communications about job performance or employment qualifications of a current or former employee are privileged—and can’t be used as the basis for a defamation claim—as long as the communications are based on credible evidence and made without malice. Privileged communication includes answering the question, “Would you rehire the employee?” The privilege, however, doesn’t apply to comments about an employee’s protected speech or activity that is protected under federal or state law.
Even with this immunity, however, California employers need to take precautions when giving references. Here are some tips:
- Insist on a written authorization from the former employee who will be the subject of the reference. Keep this authorization on file along with a copy of the reference (or a written summary of the reference if it was given orally).
- Confine your remarks to an objective evaluation of the job performance and job qualifications. Or, safer yet, make it a policy and practice to only confirm job title, dates of employment, and wage/salary rate.
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