Cal-Peculiarities: How California Employment Law is Different - 2023 Edition

108 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 5.8.1 Self-compelled publication Ordinarily, a defamation claim requires proof that the defendant published the defamatory statement to third parties. In California it’s different. California joins a few other jurisdictions in recognizing the doctrine of “selfcompelled publication,” applying when it is foreseeable that the defendant’s act would result in a plaintiff’s publication to a third person. For self-compelled publication to apply, the defamed party must operate under a strong compulsion to republish the defamatory statement, and the circumstances creating the compulsion must be known to the originator of the statement when the statement is made to the defamed individual. Suppose that an employer fires an employee for suspected theft, while privately reminding the employee that theft is a dismissible offense under company policy. Suppose further that the employee is not really a thief, but really just meant to borrow the company’s money. Suppose now that the fired employee, seeking a new job, feels compelled to tell prospective employers that theft was the reason that the prior employer gave for the dismissal. Peculiarly in California, these facts may create liability for defamation, even though the former employer never told anyone (other than the fired employee) about the theft, if the plaintiff was “compelled” under the circumstances to publish the defamatory statement. The doctrine of “self-compelled publication” has obvious implications for exit interviews. Employers have tried to avoid liability under this theory by following a strict policy against giving out any information about former employees except for the dates of employment. Such a policy would tend to undermine any contention that an employee reasonably felt compelled to disclose the prior employer’s reasons for terminating employment.292 The Court of Appeal has upheld a $1.7 million jury verdict in a case of self-compelled publication. Michael Tilkey, a licensed life insurance broker employed by an insurance company, argued with his girlfriend while visiting her apartment. When he stepped out onto her patio, she locked the door behind him. When he banged on the door to seek re-admittance, she called the police. He was arrested for disorderly conduct. Tilkey’s employer fired him and filed a Form U5 with the Financial Industry Regulatory Authority, stating he was dismissed for “threatening behavior and/or acts of physical harm violence to another person.” Tilkey then prevailed in a lawsuit for selfcompelled defamation. The Court of Appeal affirmed the jury award, noting that because nothing about Tilkey’s arrest indicated he ever harmed or threatened to harm anyone, the U5 statement was untrue and supported a finding of defamation. And the evidence also supported the jury’s finding of self-compelled publication. The Form U5 was available to every prospective employer of similarly licensed employees, and so when Tilkey was asked by such an employer about prior terminations he reasonably had to disclose the U5 statement.293 5.8.2 References by former employers California expressly recognizes a privilege for a former employer to say whether it would rehire a current or former employee.294 The statutory language is so vague, however, that it is conceivable that an employer still could be liable for defamation if the employer was motivated by ill will to state that a former employee would not be eligible for rehire. Some employers disclose information on former employees based on written authorizations signed by those former employees. But California law does not recognize a waiver of liability as to future intentional acts, so that an employer allegedly providing false information could still be sued for intentional defamation, notwithstanding the former employee’s written authorization for the employer’s disclosure.295 5.8.3 Privileges inspired by #MeToo movement Legislation effective in 2019 specifies that three types of communications regarding sexual harassment are deemed privileged—immune from a defamation claim unless they were made maliciously (with complete disregard for the truth, or false accusations made out of spite, ill will, or hatred). The three forms of non-malicious

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