And, if the information was given without being requested by the potential employer, it is strong evidence that the statement is false or made with the intent to prevent the employee from being hired. If that is the case, the former employer may have broken the law by volunteering the information.
Malicious Statements If a statement is made by a former employer with malice, the common-interest privilege protecting the employer’s reference does not arise. The California Supreme Court has defined malice in this context as a state of mind arising from hatred or ill will, which evidences a willingness to injure another person.
Unsolicited Communications Imagine the following situation: John used to be employed by ABC Inc. His supervisor, Bob, disliked John and treated him poorly. John eventually left ABC Inc. to find another job. After he left, Bob called all of the local businesses to tell them about how terrible an employee John was. Does Bob still have the common-interest privilege protecting a former employer’s reference?
No. The privilege only kicks in if the former employer is requested by the prospective employer to give the information. An employer that takes their own initiative to communicate with a prospective employer, without having first been requested by the prospective employer to do so, does not receive the protections provided by the privilege.
Courts have also noted that the common-interest privilege may be lost if the former employer excessively communicates or includes statements that are irrelevant to the matters being discussed. Employers that want to ensure their statements remain privileged, should restrict their statements to those concerning matters being discussed.
So, 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.
False Statements Knowingly false statements are generally not protected by the common-interest privilege. In fact, a former employer who misrepresents facts and prevents (or attempts to prevent) the former employee from obtaining employment can be found """guilty of a crime!"""
The employer must have credible evidence for the assertions it makes about former employees. Courts have held that an employer cannot report mere rumors or workplace gossip in a reference to prospective employers.
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 make. Those reasonable grounds must be evidence-based, rather than mere speculation.