What Can You Say About Your Ex-Employee?

You fired the guy for good cause — maybe for poor performance or theft, or perhaps for harassing fellow employees.  Now someone is calling you, asking for a reference for your misbehaving former employee.

You want to tell the truth, but if your words cost him a chance for a new job, will he sue you?  Or, if you sugar-coat your reference and he gets the job, can his new employer sue you for wilful non-disclosure, when your “ex” repeats his bad conduct on the new job?

Many California employers do not understand that, under Civil Code section 47, an employer’s responses to reference requests are legally privileged — that is, the speaker cannot be subject to legal liability for making the statement.  So why are many employers so timid about “telling it like it is”?

First, the privilege is not absolute.  California law says any employment reference statements must be made “without malice” and “based on credible evidence.”  The “without malice” standard is an exceedingly high standard for an aggrieved ex-employee to overcome — it is the same standard that prevents most libel and slander lawsuits by people in the public spotlight.  However, the “based on credible evidence” standard is less well-defined, and could easily give an ex-employee a hook to try to make a lawsuit stick.  This “credible evidence” standard was inserted into the law through a lobbying effort by the plaintiffs’ bar, based on fear that an absolute privilege would give employers free reign to defame their former employees.

Second, even with the protections of the conditional privilege, there is never a guarantee that someone won’t sue you.  You still would need to deal with the cost, time, and stress of getting the lawsuit dismissed, and getting your privileged statements vindicated.

The good news for employers is that California has a so-called “anti-SLAPP” statute (Code of Civil Procedure section 425.16) that enables defendants to stop a bogus lawsuit in its tracks, whenever free speech rights are involved.  An anti-SLAPP motion can be filed in court immediately after the lawsuit is served; what’s more, the statute provides for the recovery of attorneys’ fees from the plaintiff, if the defendant wins the anti-SLAPP motion.

Although the “conditional” nature of the privilege may give your ex-employee some wiggle room to craft a lawsuit against you if he or she does not like the reference you give out, there is one thing that is certain in this area of the law.  California law specifically authorizes employers to state whether or not they would re-hire the ex-employee.  So, although many employers choose not to respond to reference inquiries, you should be safe in limiting your response to stating whether or not you would re-hire the ex-employee.