Jun 22

The Lyin’ King: Why Your Boss Can Lie About You


The bad news about bad references is that your employer can do more than verify whether you worked for him. He can outright trash you. California law establishes three “occasions” in which your employer has a privilege to make false and even damaging statements about you. Such statements can keep you from getting the big job. In fact, they can keep you from getting any job. Like Shakespeare said, “slander lives upon succession/forever housed where it gets possession.”1 The good news: your employer can’t get too carried away. You can still sue your employer for defamation if malice motivated him to badmouth you.

It’s Been a Privilege: The Three Privileged Occasions in Which Your Employer Can Trash You

California has a strong public policy of encouraging employers to talk candidly about their employees.2 Civil Code section 47(c) reflects that public policy by privileging three distinct “occasions” in which an employer can make false and derogatory statements about an employee to an “interested” listener: (1) the employer is “also interested” in the information; (2) the employer “stands in such a relation” to the listener that the latter has a reasonable ground for supposing that the former’s motive for communicating with him is innocent; or (3) the listener “requests” the information.3

But a listener’s “interest” in a speaker’s statement must be direct and immediate for an occasion to be privileged.4 For example, every employer has a pecuniary interest in a workplace free of sexual harassment.5 Thus, your former employer isn’t necessarily liable for defamation if he falsely tells your prospective employer that he fired you for sexually harassing a co-worker.6 But your former employer couldn’t say the same thing on Twitter. The interest of the world at large in keeping someone else’s workplace free of sexual harassment is nothing more than idle curiosity.

The Privileges Never Arise When an Employer’s Motives Are Malicious

Contrary to what many employers believe, an employer never has a “privilege to defame” an employee. The privileges of Section 47(c) never arise in the first place when “malice” motivates an employer’s statements.7 The employee can prove malice by proving either: (1) the employer acted out of “hatred or ill will” towards him; or (2) the employer lacked reasonable grounds to believe that the statements were true and therefore recklessly disregarded the employee’s rights.8 Of course, the employee can’t prove malice just by pointing to the statement itself.9 Otherwise, every false and unflattering statement would be malicious.

Even if an employer’s motives for slamming an employee aren’t malicious, the privileges of Section 47(c) won’t arise if the employer comments on the “speech or activities” of an “applicant for employment” if “any…law” protects them.10 For example, the law protects an employee from termination for filing a wage claim,11 discussing wages and working conditions with other employees,12 or for engaging in political activity.13 In other words, a job applicant’s employer can still be liable for defamation if he false but innocently tells a prospective employer that the job applicant’s protected speech or activities cost him his job.

  1. The Comedy of Errors, Act III, sc. 3, line 105. 

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

  3. Civ. Code §47(c). 

  4. Rancho La Costa, Inc. v. Superior Court, 106 Cal.App.3d 646, 664-665 (1980). 

  5. See, e.g., Bierbower v. FHP, Inc., 70 Cal.App.4th 1 (1999). 

  6. Civ. Code §47(b)(3). 

  7. Brown v. Kelly Broadcasting Co., 48 Cal.3d 711 fn. 7 (1989). 

  8. Taus v. Loftus, 40 Cal.4th 683, 721 (2007. 

  9. Civ. Code §48. 

  10. Civ. Code §47(c). 

  11. Lab. Code §98.6. 

  12. Lab. Code §232, 232.5. 

  13. Lab. Code §§1101-1102. 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.