Job References at Hiring

Brad Nakase, Attorney

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Job References and Hiring

When applying for a new position, most employers ask for a resume or list of references. During an interview, there may be discussion as to why you left your previous job. If you quit or were fired, this answer might be not on the best terms. It can be rather awkward when trying to get a new job if your old boss speaks negatively about you.[1] A special privilege exists between a former and prospective employer which allows your former employer to make truthful statements about your job performance and why you left to a prospective employer.[1] This privilege is called the “common-interest privilege.”[2]

The common-interest privilege protects the conversations between the prospective and former employer in order to fully understand who one is hiring. It is in public policies interest to ensure employers are fully discovering who they are hiring and not being led under false pretenses. If this privilege applies, the statement made cannot be used in court for the truth against the employer.[3] However, there are exceptions to this privilege (when this privilege will not apply):

  • There is no protection if statements are made maliciously, or with the intent to hurt one’s reputation[4]
  • No protection when the statements are false[5]
  • Unsolicited statements – statements made without being asked for information[6]
    • Paul is fired for stealing French fries from a restaurant in Miami. Dan, the owner, is so furious, he picks up the phone and calls every restaurant in Miami to tell them Paul is a thief and to never hire him.[2]
  • Cannot state whether the former employee engages in protected activities or belongs to certain groups[7]
    • Paul protests for no more [8]straws because he loves sea turtles so much and has joined a special activist group. This cannot be divulged by Dan, his former employer.

However, a former employer is ALWAYS allowed to state whether he or she would rehire the employee.[9]

Defamation in California[10]

In order to bring a claim against a former employer for defamation, the employee must show three things:

  • Falsity: statements made were false, unprivileged, and not an opinion
  • Published: statements were published meaning they were stated or written to another person
  • Damages: employee must show his or her reputation was damaged by the statements made by former employer.[11]

If you feel you have been defamed (have had false statements made about you, either in writing or orally,) and have faced damages because of it, the best option would be to speak with a lawyer before filing any claims. This will ensure you have taken the proper steps, understand the law thoroughly, and will have a better understanding of whether your claim is valid or not.

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Legal Reference

Case of defamation in a labor dispute: Gregory v. McDonnell Douglas Corp.

[1] Cal. Civ. Code Sec 47(c)

[2] Labor Code § 1054

[1] Labor Code, § 1053

[2] Cal. Civil Code § 47(c)

[3] Cal. Civ. Code Sec 47(c)

[4] Civ. Code, § 47

[5] Cal. Civ. Code Sec 47(c)

[6] Cal. Civ. Code Sec 47(c)

[7] Cal. Civ. Code Sec 47(c)


[9] Cal. Civ. Code Sec 47(c)

[10] Cal. Civ. Code Sec 44

[11] Cal. Civ. Code Sec 44

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