California: New Defamation Protections for Harassment Victims and Employers

APPLIES TO

All Employers with CA Employees

EFFECTIVE

January 1, 2019

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Governor Brown recently signed AB 2770 into law allowing (1) current and former employers to inform prospective employers they would not rehire the employee based on the employer’s determination that the former employee engaged in sexual harassment, and (2) employees to report credible complaints of sexual harassment to current employers. By allowing such disclosures, alleged harassers are prohibited from suing sexual harassment victims and employers for defamation.

There are certain caveats – such disclosures and communications must be made without “malice”, meaning that they cannot be fueled by ill will, blatant disregard for the truth, or hatred towards the alleged harasser. Additionally, employee harassment complaints must be based on “credible evidence”. An alleged harasser can make a defamation claim if these caveats are not met; however, the burden of proof falls on the alleged harasser and not the employer or employee.

This new push by the California legislature to take steps in alignment with the #MeToo movement will give further ammunition to employers and victims of harassment looking to prevent future harassment-related incidents. Additional food for thought – although it is not a requirement to request such harassment history information from prior employers, prospective employers should consider making such inquiries a regular part of hiring due diligence efforts. If an employer hires an employee with a history of harassment and fails to inquire about such history, and the employee continues to exhibit bad behavior, it may be more difficult for employers to defend against employee harassment complaints.

Action Items

  1. Have internal policies and procedures reviewed to ensure proper reporting and handling of harassment claims.
  2. Have staff trained regularly on harassment, discrimination, and retaliation prevention.
  3. Implement hiring policies and reference check processes to include obtaining potential harassment information from applicants’ previous employment.
  4. Review employment verification procedures and determine your desire to provide additional information to prospective employers seeking information on harassment investigations.
  5. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

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