On July 9, 2018, California Governor Jerry Brown signed AB 2770 which protects both sexual harassment victims and their employers from being sued for libel, slander, or defamation in connection with allegations of sexual harassment. AB 2770 also gives an employer permission to tell a prospective new employer calling for a reference that a former employee is not eligible for rehire based on allegations of sexual harassment. The only caveats are that the former employer must answer the question about eligibility for rehire “without malice,” and that the allegations of sexual harassment be based on “credible” evidence.
Civil Code Section 47(c) now states in relevant part:
“This subdivision authorizes a current or former employer, or the employer’s agent, to answer, without malice, whether or not the employer would rehire a current or former employee and whether the decision to not rehire is based upon the employer’s determination that the former employee engaged in sexual harassment.”
Prior to AB 2770, if an employee came forward with an allegation of sexual harassment, the alleged perpetrator often threatened a claim for defamation, libel, and/or slander against the complaining employee and the employer. The fear of a defamation suit, which allows an award of punitive damages, was believed to silence many victims. They were simply too afraid of being sued to come forward. Now, with AB 2770, victims can come forward to report allegations of sexual harassment to their employers without fear of being sued — provided that they are acting without malice.
Also now, with AB 2770, an employer can now legally disclose to a prospective new employer that a former employee would not be eligible for re-hire due to prior allegations of sexual harassment — again, provided that the employer is acting without malice. However, whether an employer should go that far and disclose those details is not always clear. Having the right to do it, and whether you should do it, are totally different issues. We recommend that a former employer talk to employment counsel before disclosing anything about a former employee.
AB 2770 passed the Legislature with unanimous bipartisan support. You can read the full text of AB 2770 here.