Governor Jerry Brown signed Assembly Bill 2770 by Assemblywoman Jacqui Irwin into law as Chapter 82 of the Statutes of 2018 on July 9, 2018. The bill’s provisions specifically amended Section 47 of California’s Civil Code and went in to effect on January 1st of this year.

AB 2770 created a limited privilege for employer communications of sexual harassment claims against former employees. AB 2770 amends Civil Code Section 47(c) in two explicit clauses. First it adds a sentence that the particular subdivision applies to and includes a complaint of sexual harassment by an employee without malice to an employer based upon credible evidence and communications between the employer and interested persons, also without malice, regarding a complaint of sexual harassment.

The second clause is that AB 2770 amends the existing law to state that this particular subdivision authorizes a current or former employer, or that employer’s agent, to answer without malice whether or not the employer would rehire a current or former employee and whether that decision to not rehire is based upon the employer’s determination that the former employee engaged in sexual harassment.

Now in explaining this bill to members of the Legislature the Senate Floor Analysis said, “This bill would allow former employers to inform potential employers about whether a decision to terminate or not rehire an individual is based upon the employer’s determination that the former employee engaged in sexual harassment. This bill does not provide an absolute privilege to these types of communications, but a conditional privilege whereby the statements made by the former employers cannot be made with malice.”

This bill was sponsored by the California Chamber of Commerce and in support, the Cal Chamber and some 35 supportive groups wrote that, “AB 2770 codifies case law to ensure victims of sexual harassment and employers are not sued for defamation by the alleged harasser when a complaint of sexual harassment is made and that California’s public policy protects employees from harassment and AB 2770 furthers this particular public interest.”

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