On July 9, 2018, California Governor Jerry Brown signed Assembly Bill 2770 (AB 2770) into law. The new statute amends California Civil Code Section 47, which designates certain communications as “privileged,” meaning that individuals cannot be liable for defamation (including libel and slander) based on those communications.
Both the California State Senate and Assembly passed the bills on their respective consent calendars instead of holding individual votes because AB 2770 lacked opposition.
In the context of workplace sexual harassment complaints and investigations, the new amendments add language to Section 47(c) to protect three different groups:
- Complainants – The amendments classify as privileged written and oral sexual harassment complaints that employees make, without malice, based upon credible evidence. The amendments do not define “credible evidence.”
- Witnesses – In addition, AB 2770 makes privileged witness communications to an employer if the witness makes the communications without malice. For example, the statute protects a witness who responds to an employer’s sexual harassment investigation questions.
- Employers – The statute allows employers to respond to reference checks by the alleged harasser’s potential new employers if the potential employers ask if the alleged harasser is eligible for rehire and, if not, “whether the decision to not rehire is based upon the employer’s determination that the former employee engaged in sexual harassment.” Again, the employer must make the statements without malice.
According to the published Senate Floor Analysis, the California Chamber of Commerce cosponsored the bill. The Chamber of Commerce expressed concern that employers that had knowledge that a former employee engaged in workplace sexual harassment might not relay that information to a prospective employer because of concerns that the employee might sue his or her former employer for defamation. As a result, repeat sexual harassers could move from job to job without detection.
AB 2770 leaves some legal issues unresolved. The statute limits itself to sexual harassment communications; it does not address communications involving any other type of prohibited harassment, such as race, national origin, disability, age, or sexual orientation harassment. The legislation also does not define the “credible evidence” upon which a victim or others must base a sexual harassment complaint. Moreover, harassers still can argue that an alleged victim made his or her complaint maliciously.
Finally, the legislature may have opened up a new basis for negligent hiring claims. An employer that fails to ask previous employers during reference checks about an employee’s rehire eligibility and whether sexual harassment is the reason for the employee’s inability to be rehired may have difficulty explaining why it did not ask those questions if the employer finds that it hired a repeat sexual harasser.