Privacy Issues in the Workplace

injunctive relief for defamation. The Court granted the County’s motion for summary judgment. McQuirk appealed.

The Court of Appeals reversed. Interpreting the law in the way it believed the California Supreme Court would, the Court held that pursuant to Civil Code section 1668, the waiver signed by McQuirk was invalid as it improperly shielded Donnelley from liability for intentional torts. In addition, the Court held that Donnelley was not immune from liability under Government Code section 820.2, which provides immunity for public officials for discretionary acts. The Court held that Donnelley’s conduct in making the statements to McQuirk’s prospective employer was a ministerial act, not discretionary. The Court concluded that Section 820.2 confers immunity only with respect to basic policy decisions and found that the actions of Donnelley were on an operational level and not a planning/policy level. Similarly, the County would not be immune from liability. The Court noted, however, that Civil Code section 47(c) provides a qualified privilege for employers when giving references, and limited its holding to prevent employers from prospectively contracting by waiver for more than the qualified privilege granted them under California law.

3. S TATUTORY C LAIMS State and Federal anti-discrimination laws prevent employers from taking adverse action - such as giving false job references - to individuals on the basis of a protected status. The law protects individuals on the basis of race, national origin, color, sex, sexual orientation, religion, disability, medical condition and numerous forms of protected activity. Examples of protected activity include seeking Workers’ Compensation benefits, filing a discrimination or harassment complaint, and participating as a party or witness in a discrimination lawsuit. Employers that give false job references because the current or former employee belongs to a protected class can be subject to significant liability under State and Federal anti-discrimination laws. As with tort claims, an employer sued for discrimination or retaliation under these laws must be able to prove that it gave an accurate reference. Documentation is therefore crucial. But proof of equal treatment is also important in discrimination cases. If an employer has a history of never providing job references, and it then provides an accurate, negative reference about a former employee with a protected status, a jury or court might find that the employer gave the reference because of the plaintiff’s race, gender or other protected status. The employer’s history of providing no reference could be enough to convince the jury or court that the employer would not have given any reference if the employee did not have the protected status. This could result in judgment against the agency.

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