Can an Employer Ask How Much You Make in California

When applying for new jobs, many California employees face a common concern: they didn't exit their final job on the best terms, just they have to requite an honest listing of their last jobs to their prospective employer.

In general, a former employer has a right to make true statements about the reason why an employee was fired (or why they quit) if they are asked past a potential employer.⁠1 In fact, communications betwixt a former and prospective employer are often considered "privileged," in that they cannot exist used every bit prove in a lawsuit.⁠ii

This is sometimes referred to as the common-involvement privilege.⁠3 This privilege, however, has important limits. This article volition take a closer look at the common-involvement privilege, it'due south limits, and more.

Commodity Content

Every bit mentioned higher up, communications between a erstwhile and prospective employer are generally subject to a common-interest privilege that makes them admissible in court.⁠4 But an employer does not accept any legal protections if they made the statement maliciously, with the intent to harm the interests of the former employee.⁠5

And, if the information was given without being requested past the potential employer, it is strong testify that the statement is false or made with the intent to prevent the employee from being hired.⁠6 If that is the case, the sometime employer may have broken the law past volunteering the information.⁠7

As such, many employers choose to limit the content of their communications with prospective employers to simply stating facts like:

• The dates of the worker's employment,

• Their chore championship, and

• Whether they are rehirable.

Of annotation, California law specifically protects this last category of information. Former employers are always authorized to country whether they would rehire a person if asked.⁠8

But, if an employer breaks the law and provides false information well-nigh a onetime employee to a potential employer, or they provide unsolicited data nigh the employee with the intent to preclude them from getting hired, the old employee tin sue the employer for the amercement they feel as a result.⁠nine

Such lawsuits commonly accuse the former employer of defamation, a legal merits that the former employer made false statements about the employee that acquired damage to their reputation.

As mentioned above, communications between a former and potential employer are oftentimes treated as a privileged communication, for legal purposes.⁠10 A privileged communication is ane that is not admissible in court to bear witness a certain thing. In the context of defamation lawsuits, a argument is simply defamatory if information technology is non privileged.⁠11 And then, a privileged statement would be inadmissible to show defamation.

Of class, many not-privileged statements are also inadmissible in court, but that usually has to do with rules of evidence unrelated to privilege doctrines. But privileged statements, every bit a category, are ones that can't be admitted into courtroom.

Instance

Communications between an attorney and his or her client are often considered privileged.⁠12 Due to the of import nature of the attorney-client relationship, courts requite special rights to attorneys and their clients.

Because of this, a client does not need to fear giving truthful information to his or her chaser because it cannot be used against him in court.

There are, of grade, exceptions to the privilege, but as a general matter the privilege usually holds upward.

In this context, the fact that a statement is privileged between a former and prospective employer just means that the former employer cannot exist liable for the content of their statements to the prospective employer. If the statement itself is not admissible to bear witness defamation, then the old employee cannot concord the employer accountable for the argument.

The privilege protecting former employers (i.e., the "common-interest privilege") has several limits. Employers will non receive protection of the privilege under several circumstances:

• Malicious Statements. The employer may not make statements rooted in malice against the employee.

• Unsolicited Communications. The employer is not protected past the common-involvement privilege if they take it upon themselves to contact the new or prospective employer.

• Imitation or Reckless Statements. The employer may non knowingly make false statements about the employee, or statements about the employee that are reckless with regard to whether they are truthful.

• Statements about Protected Activities. The employer may non brand statements concerning the speech or activities of an applicant for employment if the spoken communication or activities are constitutionally protected.

Chiefly, an employer is non automatically liable for their statements simply because the argument isn't privileged. In add-on to overcoming the common-interest privilege, an employee will demand to prove other facts to justify a lawsuit confronting the employer.

three.1.

Malicious Statements

If a statement is fabricated past a old employer with malice, the common-interest privilege protecting the employer's reference does not arise.⁠13 The California Supreme Courtroom has defined malice in this context as a state of mind arising from hatred or ill will, which evidences a willingness to injure some other person.⁠xiv

Malice can exist difficult to bear witness and, in many cases, it cannot be inferred by the statement itself.⁠15

three.2.

Unsolicited Communications

Imagine the following situation: John used to exist employed by ABC Inc. His supervisor, Bob, disliked John and treated him poorly. John eventually left ABC Inc. to find another job. Subsequently he left, Bob chosen all of the local businesses to tell them about how terrible an employee John was. Does Bob still have the common-involvement privilege protecting a former employer'south reference?

No. The privilege only kicks in if the erstwhile employer is requested past the prospective employer to give the data.⁠16 An employer that takes their own initiative to communicate with a prospective employer, without having first been requested by the prospective employer to practice so, does not receive the protections provided past the privilege.

Courts have also noted that the mutual-interest privilege may be lost if the former employer excessively communicates or includes statements that are irrelevant to the matters being discussed.⁠17 Employers that want to ensure their statements remain privileged, should restrict their statements to those concerning matters being discussed.

And then, in Bob's case, because he preemptively contacted prospective employers without being requested to do so, his statements cannot be protected under the privilege protecting a former employer's reference.

Knowingly false statements are by and large not protected by the common-interest privilege.⁠xviii In fact, a erstwhile employer who misrepresents facts and prevents (or attempts to prevent) the former employee from obtaining employment can be found guilty of a crime!⁠19

The employer must have credible evidence for the assertions it makes about former employees.⁠20 Courts have held that an employer cannot report mere rumors or workplace gossip in a reference to prospective employers.⁠21

So, even if a former employer believes something is true, they cannot report it to a prospective employer unless they have reasonable grounds for believing in the truth of the statements they brand.⁠22 Those reasonable grounds must be evidence-based, rather than mere speculation.

At the aforementioned fourth dimension, yet, a statement that is only negligent will still be protected. The statement must take been reckless or grossly negligent to invalidate the common-interest privilege.⁠23

Put just, a former employer is not protected if they make a statement that they know is simulated, or they act with reckless disregard as to their argument's truth or falsity.

3.4.

Statements about Protected Activities

An employer does not receive the privilege protecting a former employer's reference if the quondam employer communicates well-nigh the spoken language or activities of the former employee if the speech or activities of the employee were protected by law.⁠24

Whether an action is legally-protected is a fact-specific research. Examples of protected activities might include private activities,⁠25 the do of a person'south right to free speech,⁠26 a person'south correct to petition in connexion with a public issue, the right to commonage bargaining or picketing,⁠27 or the exercise of a person's religion.

So, a former employer could not, for instance, receive the privilege if they communicated about the fact that the worker was a member of a specific political political party or that they engaged in political activities during not-piece of work hours. Besides, a sometime employer's statements about the employee'south participation in union activity would not exist protected.

3.5.

Statements That Alienation a Contract

Equally a final thing, it worth noting that sometime employers are sometimes contractually leap to remain silent about a former employee. This oft occurs when the employee has a severance agreement or a settlement agreement that includes a "non-disparagement" clause or some other provision related to confidentiality.

As the proper name indicates, a not-disparagement clause is an agreement between the parties of a contract to avoid proverb bad things nearly each other. Like confidentiality agreements, non-disparagement clauses are generally enforceable in California, with some limits (a contract may not, for example, prohibit employees from cooperating with regime or constabulary enforcement agencies).⁠28

If an understanding prohibits an employer from speaking almost sure aspects of the worker or the worker's employment, they take a chance violating the agreement by maxim negative things virtually an employee with hereafter employers. In that situation, the employer might not exist protected by the privilege betwixt former and potential employers.

Every bit mentioned above, the mere fact that a statement is not privileged does non automatically hateful that an employer is liable to the employee. To support a defamation lawsuit, the employee still must bring testify to testify that the employer has defamed him. In California, defamation requires 3 primal facts to exist proven (these are sometimes called "elements" of the claim):

• Falsity. The employee must demonstrate that the person being sued (called the defendant) made a false and unprivileged statement of fact, not opinion, about the employee (called the plaintiff).

• Publication. The employee must demonstrate that the false statement was communicated to someone else besides the employee. Prove of a communication by a former employer to a prospective employer is sufficient to prove "publication." The advice can be either spoken or written.

• Damage. The employee must demonstrate that impairment occurred to the employee's reputation or occupation.

The terminal element is oftentimes the most hard to prove. Damaging statements can include:⁠29

• False accusations of criminal acquit.

• Accusing someone of a lack of integrity or honesty.

• Falsely challenge someone is incompetent.

• Making other simulated statements about someone else'due south personal characteristics or behavior.

References

Labor Code, § 1053 ["Nada in this chapter shall prevent an employer or an amanuensis, employee, superintendent or manager thereof from furnishing, upon special request therefor, a true statement concerning the reason for the discharge of an employee or why an employee voluntarily left the service of the employer."].↥

Civ. Code, § 47, subd. (c).↥

Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1367.↥

Civ. Code, § 47, subd. (c).↥

Civ. Code, § 47 [requiring a lack of "malice" every bit a prerequisite to the privilege].↥

Labor Lawmaking, § 1053 ["If such statement furnishes whatsoever marking, sign, or other means conveying information dissimilar from that expressed by words therein, such fact, or the fact that such statement or other means of furnishing information was given without a special request therefor is prima facie prove of a violation of sections 1050 to 1053."].↥

Labor Code, §§ 1050, 1053.↥

Civ. Lawmaking, § 47, subd. (c) ["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."].↥

Labor Lawmaking, § 1054.↥

Civ. Code, § 47, subd. (c).↥

Civ. Code, §§ 45 ["Libel is a imitation and unprivileged publication past writing, printing, motion picture, effigy, or other fixed representation to the centre, which exposes whatsoever person to hatred, antipathy, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a trend to hurt him in his occupation."], 46 [similar definition for slander].↥

Evid. Code, §§ 950⁠–⁠962.↥

Civ. Code, § 47; Brownish v. Kelly Dissemination Co. (1989) 48 Cal.3d 711, 724 n.7.↥

Agarwal v. Johnson (1979) 25 Cal.3d 932, 944.↥

Encounter, east.thousand., Civ. Lawmaking, § 48.↥

Civ. Lawmaking, § 47, subd. (c).↥

Deaile v. Full general Phone Co. of California (1974) forty Cal.App.3d 841, 847.↥

Civ. Code, § 47, subd. (c).↥

Labor Lawmaking, § 1050 ["Whatever person, or agent or officer thereof, who, after having discharged an employee from the service of such person or afterwards an employee has voluntarily left such service, by any misrepresentation prevents or attempts to foreclose the former employee from obtaining employment, is guilty of a misdemeanor."].↥

Civ. Code, § 47, subd. (c).↥

Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1375.↥

Noel five. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1375.↥

Noel five. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1373.↥

Civ. Lawmaking, § 47, subd. (c).↥

Cal. Const., art. I, § 1.↥

Cal. Const., art. I, § 2; U.S. Const., amend. I; Lawmaking Civ. Proc., § 425.sixteen, subd. (b)(1).↥

Code Civ. Proc., § 527.3.↥

Encounter, east.g., Labor Code, § 1102.5.↥

Jensen v. Hewlett Packard Co. (1993) 14 Cal.App.4th 958, 964⁠–⁠965.↥

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Source: https://www.worklawyers.com/job-references-hiring-california/

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