California now has a new law on the books designed to protect employers and victims from defamation claims by alleged sexual harassers. Following the example of New York, California's Assembly Bill 2770 is an effort to encourage employers to share relevant information about employees without fear of a defamation suit. This should make it more difficult for alleged harassers to move from one workplace to another. The new California law taking effect on January 1, 2019, amends the definition of “privileged communication” to protect sexual harassment complaints made “without malice” and based on “credible evidence” by an employee to an employer. By the same token, communications made “without malice” by a current or former employer to “interested parties,” defined to include a party the employer believes may be a prospective employer, are also protected. This includes current or former employers’ communications regarding whether the employer would not rehire the alleged harasser due to a determination that he or she engaged in sexual harassment.
Currently, employers are faced with making a tough decision of releasing the information about sexual harassment allegations to a prospective employer with the possibility of a defamation lawsuit in return from the alleged harasser. The new law doesn’t completely remove this risk, as some workers may still file suit alleging the communication at issue was made with malice and/or was not based on credible evidence.