Privacy Issues in the Workplace

(c) In communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision authorizes a current or former employer, or the employer’s agent, to answer whether or not the employer would rehire a current or former employee.

Thus, the issue is whether the former employer had credible information to support its statement to the prospective employer, and whether it acted with malice.

An employer should only give a reference if two criteria are met; 1) the reference is honest, and 2) the employer 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 employer will have a difficult time showing that it had credible information that will trigger the protection of Section 47(c). If an employer has credible information to support a job reference, it will normally be protected from any civil tort claims.

Note that a waiver, while recommended, may not prove to be an absolute bar to liability.

McQuirk v. Donnelley 129 The Ninth Circuit Court of Appeals interpreting California law, held that a County and its Sheriff were not immune from liability (despite a signed release) for providing a reference to a prospective employer for a former employee. Philip McQuirk was a former employee of the Glenn County, California Sheriff’s Office. Five years after receiving a medical retirement from Glenn County, he applied for a non-peace officer position with the Mountlake Terrace Police Department in Washington State. McQuirk signed a release that authorized former employers to provide information regarding him, his work record, his reputation, and his financial status and waived liability for compliance. McQuirk, was hired on April 11, 1995. On April 12, 1995, Commander Smith of the Mountlake Terrace Police Department spoke with Louis Donnelley, Glenn County Sheriff, regarding McQuirk. McQuirk alleges that Donnelley made five defamatory statements about him during that conversation. McQuirk’s offer was rescinded. McQuirk filed a lawsuit in Washington against Donnelley and Glenn County, seeking damages and

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 43