Kelly A. Knight is an attorney and mediator based in Los Angeles, CAlifornia. He handles matters throughout California.

Governor signs AB 2770, expanding the common-interest privilege to include communications that an employee would not be rehired because the employee engaged in sexual harassment

Now for a new development in California statutory law.

Section 47 of the Civil Code provides that certain types of communications may carry a cloak of legal protection, e.g., against claims of defamation. Examples include (but are not limited to) communications in the "proper discharge of an official duty" (section 47(a)), communications in any legislative, judicial, or other official proceeding (commonly known as the "litigation privilege") (section 47(b)), and communications made without malice to a person holding a common interest (commonly known as the "common-interest privilege") (section 47(c)).

Governor Brown just signed Assembly Bill 2770 into law, expanding the common-interest privilege under section 47(c). The common-interest privilege now expressly includes certain communications regarding complaints of sexual harassment, including the complaint itself if made without malice and "based upon credible evidence," and communications between interested persons made without malice about the complaint:

  • "[A] complaint of sexual harassment by an employee, without malice, to an employer based upon credible evidence...." 
  • "[C]ommunications between the employer and interested persons, without malice, regarding a complaint of sexual harassment."

While the old section 47(c) already applied to communications answering "whether or not the employer would rehire a current or former employee," the new section 47(c) adds that the employer may also answer "whether the decision to not rehire is based upon the employer’s determination that the former employee engaged in sexual harassment."

Many prudent employers are understandably extremely cautious about what they tell inquiring prospective employers because they want to limit any potential of being sued for defamation. (This is often one reason why many companies have a blanket policy of only confirming a former employee's dates of employment and last rate of pay.) Responding that a former employee would not be rehired because the employer determined that the former employee engaged in sexual harassment is obviously a serious communication that many employers would not want to make.

This change in the law will provide some protection for employers who do choose to answer these types of inquiries.

Click here for the text of AB 2770.

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