©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 109 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.298 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.299 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.300 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 communications enjoying this protection are (1) reports of sexual harassment made by an employee to the employer based on credible evidence, (2) communications regarding sexual harassment allegations between the employer and “interested persons” (such as witnesses or victims), and (3) statements made to prospective employers as to whether a decision to rehire would be based on a determination that the former employee engaged in sexual harassment.301 Legislation effective in 2024 extends the statutory definition of a privileged communication in defamation actions to include communications concerning an individual’s experience of sexual assault, sexual harassment, workplace harassment or discrimination, and cyber sexual bullying. 302 The same law also provides that a prevailing defendant in any defamation action brought against that defendant for making a communication that is privileged is entitled to their reasonable attorney fees and costs for successfully defending themselves in the litigation, plus treble damages for any harm caused to them by the defamation action against them, in addition to punitive damages permitted by law.303 5.9 Misrepresentation Claims 5.9.1 Employer liability for fraudulent inducement Labor Code section 970 authorizes double damages for an employee who has been induced to change from one place to another by false promises regarding employment.
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