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AB-2770 Privileged communications: communications by former employer: sexual harassment.(2017-2018)

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Date Published: 04/19/2018 09:00 PM
AB2770:v98#DOCUMENT

Amended  IN  Assembly  April 19, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 2770


Introduced by Assembly Member Irwin

February 16, 2018


An act to amend Sections Section 47 and 48 of the Civil Code, relating to privileged communications.


LEGISLATIVE COUNSEL'S DIGEST


AB 2770, as amended, Irwin. Privileged communications: communications by former employer: sexual harassment.
Existing law provides that libel is a false and unprivileged written publication that injures the reputation and that slander is a false and unprivileged publication, orally uttered, that injures the reputation, as specified. Existing law makes certain publications and communications privileged and therefore protected from civil action, including certain communications concerning the job performance or qualifications of an applicant for employment that are made without malice by a current or former employer to a prospective employer. Existing law authorizes an employer to answer whether or not the employer would rehire an employee.
This bill would include among those privileged communications complaints of sexual harassment by an employee employee, without malice, to an employer based on credible evidence and communications by between the employer to and interested persons and witnesses regarding a complaint of sexual harassment during an investigation and would authorize an employer to answer answer, without malice, whether the employer would rehire an employee and whether or not a decision to not rehire a person is based on the employer’s determination that the former employee engaged in sexual harassment. The bill would also provide that for purposes of those provisions, malice is a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy, or injure another person, and that an allegation or statement that the communication is false is insufficient to establish malice.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 47 of the Civil Code is amended to read:

47.
 A privileged publication or broadcast is one made:
(a) In the proper discharge of an official duty.
(b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, except as follows:
(1) An allegation or averment contained in any pleading or affidavit filed in an action for marital dissolution or legal separation made of or concerning a person by or against whom no affirmative relief is prayed in the action shall not be a privileged publication or broadcast as to the person making the allegation or averment within the meaning of this section unless the pleading is verified or affidavit sworn to, and is made without malice, by one having reasonable and probable cause for believing the truth of the allegation or averment and unless the allegation or averment is material and relevant to the issues in the action.
(2) This subdivision does not make privileged any communication made in furtherance of an act of intentional destruction or alteration of physical evidence undertaken for the purpose of depriving a party to litigation of the use of that evidence, whether or not the content of the communication is the subject of a subsequent publication or broadcast which is privileged pursuant to this section. As used in this paragraph, “physical evidence” means evidence specified in Section 250 of the Evidence Code or evidence that is property of any type specified in Chapter 14 (commencing with Section 2031.010) of Title 4 of Part 4 of the Code of Civil Procedure.
(3) This subdivision does not make privileged any communication made in a judicial proceeding knowingly concealing the existence of an insurance policy or policies.
(4) A recorded lis pendens is not a privileged publication unless it identifies an action previously filed with a court of competent jurisdiction which affects the title or right of possession of real property, as authorized or required by law.
(c) In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision applies to and includes a complaint of sexual harassment by an employee employee, without malice, to an employer based upon credible evidence and communications by between the employer to and interested persons and witnesses persons, without malice, regarding a complaint of sexual harassment during an investigation. harassment. This subdivision authorizes a current or former employer, or the employer’s agent, to answer answer, without malice, whether or not the employer would rehire a current or former employee and whether the decision to not rehire is based upon the employer’s determination that the former employee engaged in sexual harassment. This subdivision shall not apply to a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure or any other provision of law.
(d) (1) By a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued.
(2) Nothing in paragraph (1) shall make privileged any communication to a public journal that does any of the following:
(A) Violates Rule 5-120 of the State Bar Rules of Professional Conduct.
(B) Breaches a court order.
(C) Violates any requirement of confidentiality imposed by law.
(e) By a fair and true report of (1) the proceedings of a public meeting, if the meeting was lawfully convened for a lawful purpose and open to the public, or (2) the publication of the matter complained of was for the public benefit.

SEC. 2.Section 48 of the Civil Code is amended to read:
48.

For purposes of subdivision (c) of Section 47, malice is a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy, or injure another person. Malice is not inferred from the communication, and an allegation or statement that the communication is false is insufficient to establish malice.