Libel About Protected Speech

Say you're talking privately (not to the public at large) about someone, and say something that seriously damages their reputation. It's an honest mistake on your part, and you aren't animated by hostility towards the person; but the person learns about it and sues, claiming that the allegations were false and that you didn't perform a reasonable investigation (i.e., were negligent).

In most states, including California, that could be actionable defamation, but is sometimes subject to so-called "qualified privileges." They are privileges because they provide immunity from defamation liability (don't confuse them with evidentiary privileges, which provide a right not to testify). They are qualified because they only apply so long as you made an honest and well-motivated mistake. They basically (to oversimplify slightly) raise the mental state the plaintiff needs to show from negligence as to falsehood to recklessness or knowledge.

Classic examples of qualified privileges include the "common interest" privilege, for instance when you're talking to a business partner about an employee or a prospective contracting party, or when you're talking to a fellow club member about a candidate for membership. They also include the "interest of another" privilege, for instance when someone calls you about an ex-employee of yours and asks for a candid assessment of the ex-employee's qualities. (It's true that such job references remain legally risky, precisely because the privilege is only qualified and not absolute, but the qualified privilege does decrease the risk.) California law offers this summary of the rule, providing that a qualified privilege applies

(c) [to] a communication, without malice [i.e, without knowing or reckless falsehood, and without ill will towards the subject], to a person interested therein,

• by one who is also interested, or
• by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or
• who is requested by the person interested to give the information.

[i] This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant.

[ii] This subdivision applies to and includes a complaint of sexual harassment by an employee, without malice, to an employer based upon credible evidence and communications between the employer and interested persons, without malice, regarding a complaint of sexual harassment.

[iii] 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.

Now here's the interesting twist, which I just noticed a few weeks ago: The qualified immunity expressly excludes

a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure [dealing with publicity about a labor dispute] or any other provision of law.

So I think this means that

• an employer's saying, "don't hire this person, he stole from us," is qualifiedly privileged, which is to say that the employer is immune if it made an honest even if unreasonable mistake in investigating the matter;
• an employer's saying, "don't hire this person, he sexually harassed a coworker," is qualifiedly privileged;
• an employer's saying, "don't hire this person, he had posted racist messages on Facebook," is not qualifiedly privileged, which is to say the employer is liable if it made an honest but unreasonable mistake in investigating the matter;
• an employer's saying, "don't hire this person, he had a sexual relationship with a subordinate in violation of our policies," is not qualifiedly privileged (so long as Lawrence v. Texas is read as providing that sexual behavior is generally constitutionally protected).

I couldn't find any cases in which this provision came up, but it is indeed there; it was added in 1994, when the reference to employment references (item [i] above) was first added. If you know about its backstory, or its applications, or similar provisions in other states, please let me know.

Comments

[Joe_dallas]

In my industry, many of the mid level and senior level employees will know other mid level to senior level employee at the other firms where the potential new employee has worked. So it is fairly common to get candid 'off the record " references for the potential employee.

[SomeGuy 2]

It's fairly common to get references that are styled as "off the record." They are not, in fact, off the record in the event of litigation, you probably can be compelled to testify to their contents in the event of a lawsuit, "But I told Bob it was off the record!" doesn't work. Which is one of the reasons your HR/Legal departments will strenuously tell you not to do this no matter how much an old pal is asking for your honest opinion. The exception described in this post might help you, but it's better not to have to make the argument.

[Joe_dallas]

Your point is correct - though when the "old pal" will only say that company policy prohibits commenting on former employees - its generally a red flag - operates like the unwritten coded message - stay away from that person.

[Don Nico]

Joe,
I agree that "company policy prohibits commenting on former employees" is the prudent way to go if you have any negative information.

[Joe_dallas]

concur - that of course is the standard answer for everyone when asking the HR department.
However, when discussing outside the official channels it conveys the unwritten message - " a bad employee"

[santamonica811]

Can you say something like, "I'd like to give you an honest assessment of Bob. But I'm nervous about being sued by him, if I were to be honest and if I were to let you know what I and Company X thought and think of him."?

[Joe_dallas]

Santamoica - That language would be far worse - often the "no comment" statment is sufficient to carry the message.

[John F. Carr]

A manager was willing to give me a favorable reference but asked that my new employer call him at home, not at work, due to a no-references policy.

[Joe_dallas]

John Carr – concur – There is a lot of behind the scenes job references.

for problem former employees, I have always given the company policy, no reference response. Many potential employers recognize the “no reference Policy” as a negative reference, especially if it is coming from a small firm.

[Mark Leen]

So, that would appear to be content based discrimination regarding speech. Thoughts on whether it would survive strict scrutiny?

[Yes Way, Ted]

This is retarded.

[Rossami]

I don't think that last bullet can be right. Having sex generally may be constitutionally protected but having sex with a subordinate pretty definitely is not. Companies fire people all the time for abusing the supervisor/subordinate relationship. Even the EEOC doesn't try to fight those cases with the mere argument that "it was consensual".

[Zarniwoop]

Yeah, I question that as well. A “no sex with subordinates” policy doesn’t discriminate against anyone on the basis of their sex, but instead is directed to a power dynamic that exists for both straight and gay relationships in the workplace. Not seeing how such a corporate policy would run afoul of the Due Process Clause per Lawrence v. Texas

[Randal]

No, that doesn't make sense. "Constitutionally protected" doesn't mean "from retaliation by an employer." That would add very little, if anything, to the statute, since as you point out, the Constitution generally doesn't bind company policy.

But it's not clear what it does mean. Everything is constitutionally protected to some extent by the Due Process Clause. Maybe "constitutionally protected from prosecution?" But that's everything that isn't explicitly illegal, since there are constitutional protections against being prosecuted for non-crimes (due process, ex post facto). In that case, communications could only reference criminal conduct. That can't be right.

Maybe it means "constitutionally protected from being made illegal?" That certainly includes sex with a subordinate... but also lots of other stuff, like having bad judgement or being lazy, which seem like the kinds of things you generally talk about in this sort of communication.

I would call "constitutionally protected" unconstitutionally vague.

[John F. Carr]

Was this law passed at the same time as a ban on firing workers for legal off-the-job activities?

[Stephen Lathrop]

The references to, "malice," in the OP? Are we to think about those as if they involved, "actual malice," or just plain old garden variety malice?

[Noscitur a sociis]

As indicated by Prof. Volokh's parenthetical, it means "actual malice" (i.e. not actual malice).

[Stephen Lathrop]

Noscitur a sociis — I remain puzzled. Is this the parenthetical you refer to?:

[to] a communication, without malice [i.e, without knowing or reckless falsehood, and without ill will towards the subject],

If so, that seems to conflate rather than to distinguish which of two concepts is operative. Is there something else I overlooked?

[Bill R]

Waste no time in hiring this person.
Their input was always critical.
They are always on the spot when problems turn up.
You will be lucky if you can get this person to work for you.
Their expertise in this field is unbelievable.
Their skills are in no way average.
You will fondly remember the day you hired this person.
I cannot recommend this person highly enough.
I enthusiastically recommend this candidate with no qualifications whatsoever.
No person would be better for this job.
Always lives up to my expectations.
They were great at making the rest of my team feel competent.

[wolfefan]

These are great!

[Joe_dallas]

Bill - I am always leery of a super glowing reference - if they cant say something negative or some form of weakness / shortcoming ie good at some tasks bad at some other task, then the reference comes across as not credible.

I am much more confident of the future employee's skill set if there are weaknesses mentioned. I am also much more inclined to hire that person knowing that I got a more honest evaluation. In many respects, being honest in the reference increases the likelihood of being hired.

[Bill R]

Ah, but *are* these all glowing references?