An Administrator's Guide to California Private School Law

Chapter 3 – Hiring

While there is some case law suggesting that third parties can rely on Megan’s law when conducting a background check, it is not clear that schools can use it to deny employment or privileges such as volunteering. The safer course of conduct is for schools to conduct background checks through the Department of Justice.

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H. R ESPONDING T O A R EQUEST F OR B ACKGROUND I NFORMATION While conducting a thorough background investigation is important, it is equally important to provide information about current or former employees without creating legal liability for the school. This section discusses schools’ obligations to provide information, the potential legal pitfalls associated with doing so and the available legal protections.

1. P OTENTIAL L IABILITIES T O T HE E MPLOYEE a. Tort Claims

There are numerous civil “tort” claims that an employee may raise related to the provision of a job reference. A tort cause of action is a claim that one individual has wrongfully harmed another. The five most common claims made by unsuccessful job applicants are:

1. Defamation: A defamatory job reference is one that makes false assertions of fact about the job applicant that causes a prospective employer to decline to hire the individual. For example, if a former employer knows that the applicant is fully literate, it should not report to the prospective employer that the applicant cannot read. 231

In Noel v. River Hills Wilsons, Inc. , Brandon Noel filed a defamation action against his former manager and employer for false information about him provided to a background investigator for his new employer, for whom he had begun working on a contingent basis. The California Court of Appeal held that the alleged false statements were protected by conditional common-interest privilege. There was no evidence that malice was a motivating cause of the statements that the applicant left his former employment over “loss prevention” issues. Rather, the manager made an unintentional error or careless blunder because she was expecting another inquiry about a different former employee and had reasonable grounds for thinking statements were true. 232

2. Intentional/Reckless Infliction of Emotional Distress: Intentional or reckless infliction of emotional distress occurs when a school acts in an outrageous manner with intentional or reckless disregard for the harmful emotional impact of that conduct on the job applicant. 233

Causes of action for intentional and reckless infliction of emotional distress must be supported by evidence of: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” 234

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 76