Privacy Issues in the Community College Workplace

disregard for the harmful emotional impact of that conduct on the job applicant. 115  Interference with Economic Advantage: Another legal claim is interference with prospective economic advantage. This claim asserts that the former employer interfered with the employment relationship being formed between the applicant and prospective employer. 116  Misrepresentation: It is a misdemeanor for a former employer to make false statements about former employees in an effort to prevent them from obtaining subsequent employment. Former employees may sue for treble or punitive damages as a civil remedy for misrepresentation. 117

2. P RIVILEGED C OMMUNICATIONS Although the prospect of tort liability might be intimidating, Civil Code section 47(c) provides legal protection from liability for non-malicious job references, even if they are incorrect. Section 47(c) states that responses to prospective employers’ requests for background information, made without malice, are privileged. 118 Civil Code section 47(c) expressly includes within the ambit of privileged communication references by prior employers. Section 47(c) provides that a privileged broadcast includes one made:

(c) In 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.

Thus, the issue is whether the former employer had credible information to support its statement to the prospective employer, and whether it acted with malice.

An employer should only give a reference if two criteria are met; 1) the reference is honest, and 2) the employer can prove it is honest. An employee may have been lazy, but if there is no performance evaluation, counseling memo, written warning or other documentation memorializing the employee’s laziness, the employer will have a difficult time showing that it had credible information that will trigger the protection of section 47(c). If an employer has credible information to support a job reference, it will normally be protected from any civil tort claims.

Privacy Issues in the Community College Workplace ©2019 (c) Liebert Cassidy Whitmore 39