A potential employer in California can generally ask a former employer any question about a prospective employee. However, you may be hard-pressed to find a former employer who will answer any questions beyond confirming job title, dates of employed, documented departure reason, and whether they would rehire. The reason is simple. Fear of litigation.
Former Employer Liability
California employers have what is called “qualified privilege” when providing reference information to potential employers. This privilege provides employers with liability protection. However, qualified privilege has limits. The information provided cannot be false or made with malice. Qualified privilege does not protect information disclosed about employee protected activities (i.e. speech activities, union, etc.). Nor does it protect information disclosed that is a breach of contract between a former employer and employee (i.e. non-disparagement clause).
Additionally, California case law can subject former employers with liability for offering misleading reference information. For example, giving a great reference for an employee who has numerous sexual misconduct complaints. If the employee is hired and is accused of sexual misconduct at the new workplace, the former employer opens themselves up to potential litigation. Although a former employer has no obligation to provide detailed reference information, once they do so, there is a duty not to misrepresent.
Potential Employer Liability
As outlined above, there are no laws restricting what potential employers can ask former employers. However, there may be legal consequences, depending on the questions. For example, if a potential employer asks questions about federally protected classes (i.e. race, color, religion, sex, national origin, and age). Asking about protected classes and making hiring decisions based on that information is unlawful and may lead to liability.
Although a potential employer in California can generally ask a former employer any question about a prospective employee, it is hard to get beyond the basics. Even if you are able to get beyond the basics, potential employers need to be careful to ask questions that do not land them in liability trouble.
If you need any assistance with the hiring process, please contact Hackler Flynn & Associates.
DISCLAIMER: Content within this post should not be considered legal advice and is for informational purposes only. Communications made through this post do not create an attorney-client relationship. Hackler Flynn & Associates is not responsible for any content that you may access from third-party resources that may be accessed through or linked to this post. Hackler Flynn & Associates is only licensed to practice in California.
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