An Administrator's Guide to California Private School Law

Chapter 3 – Hiring

3. Interference with At-Will Employment Relationship: This claim occurs where a former employer interferes with the employment relationship being formed between the applicant and prospective employer or where a school interferes with the employee’s current at-will employment relationship. 235 4. Interference with Contractual Relations: This claim occurs where a school interferes with an employee’s current employment contract with another employer. In this situation, the employee is not an at-will employee, but is bound to his or her current employer by some employment contract. To prevail on a cause of action for intentional interference with contractual relations, a plaintiff must plead and prove: (1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant’s knowledge of that contract; (3) the defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. 236 5. 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 (three times actual damages) or punitive damages as a civil remedy for such misrepresentation.

b. Exception: Privileged Communications Subdivision (c) of Civil Code section 47 protects employers for making non-malicious job references, even if they are incorrect. It states that responses to prospective employers’ requests for reference information, made without malice, are privileged. 237 Thus, a school should only give a reference if two criteria are met: (1) the reference is honest; and (2) the school 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 school will have a difficult time showing that it had credible information that will trigger the protection of the privileged communication exemption. Generally, so long as a school does not knowingly make any misrepresentations about the employee and the school has a uniform policy for responding to any reference check, the school can usually avoid any potential tort liability. 238 2. P OTENTIAL L IABILITY T O S UBSEQUENT E MPLOYERS Just as former employees may sue a school for inaccurate, poor references, subsequent employers may sue a school for inaccurate, good references. While this might seem to put the school in a difficult position, the school’s defense in both cases is the same: the truth.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 77