Privacy Issues in the Workplace

F. R ESPONDING TO R EFERENCE C HECKS While conducting a thorough background investigation is an important human resources function, it is equally important to provide information about current or former employees without creating legal liability for the agency. This section discusses employers’ obligations to provide information, potential legal pitfalls associated with doing so, and legal protections which are available. 1. T ORT C LAIMS There are numerous civil "tort" claims 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 following are the most common claims made by unsuccessful job applicants:

 Defamation: Defamation is one of the most popular tort claims in job reference cases. 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. 124  Emotional Distress: Unsuccessful applicants also might sue for intentional and/or negligent emotional distress. Emotional distress occurs when an employer acts in an outrageous manner with intentional or reckless disregard for the harmful emotional impact of that conduct on the job applicant. 125  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. 126  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. 127

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. 128 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:

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 42