California Civil Jury Instructions (CACI)

2711. Preventing Subsequent Employment by Misrepresentation - Essential Factual Elements (Lab. Code, § 1050)

[Name of plaintiff] claims that [name of defendant] made [a] false representation[s] to prevent [him/her] from obtaining employment. To establish this claim, [name of plaintiff] must prove all of the following:

1. That after [name of plaintiff]'s employment with [name of defendant] ended, [name of defendant] made [a] representation(s) to [name of prospective employer] about [name of plaintiff];

2. That [name of defendant]'s representation[s] [was/were] not true;

3. That [name of defendant] knew the representation[s] [was/ were] not true when [he/she/it] made [it/them];

4. That [name of defendant] made the representation[s] with the intent of preventing [name of plaintiff] from obtaining employment;

5. That [name of plaintiff] was harmed; and

6. That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff]'s harm.

Directions for Use

For jury instructions regarding opinions as statements of fact and the definition of an important fact, see CACI Nos. 1904 and 1905 in the Fraud or Deceit series. For an instruction on the qualified privilege pursuant to Civil Code section 47(c), see CACI No. 1723 in the Defamation series.

It is unclear whether elements 3 and 4 are necessary elements to this cause of action.

Sources and Authority

Labor Code section 1050 provides: "Any person, or agent or officer thereof, who, after having discharged an employee from the service of uch person or after an employee has voluntarily left such service, by any misrepresentation prevents or attempts to prevent the former employee from obtaining employment, is guilty of a misdemeanor."

Labor Code section 1052 provides: "Any person who knowingly causes, suffers, or permits an agent, superintendent, manager, or employee in his employ to commit a violation of section[] 1050 . . . or who fails to take all reasonable steps within his power to prevent such violation is guilty of a misdemeanor."

Labor Code section 1054 provides, in part: "[A]ny person or agent or officer thereof, who violates any provision of sections 1050 to 1052, inclusive, is liable to the party aggrieved, in a civil action, for treble damages. Such civil action may be brought by such aggrieved person or his assigns, or successors in interest, without first establishing any criminal liability under this article."

Labor Code section 1053 provides: "Nothing in this chapter shall prevent an employer or an agent, employee, superintendent or manager thereof from furnishing, upon special request therefor, a truthful statement concerning the reason for the discharge of an employee or why an employee voluntarily left the service of the employer. If such statement furnishes any mark, sign, or other means conveying information different from that expressed by words therein, such fact, or the fact that such statement or other means of furnishing information was given without a special request therefor is prima facie evidence of a violation of sections 1050 to 1053."

"Section 1054 provides for a damage remedy for the party aggrieved by a violation of the section 1050 prohibition against an employer blacklisting a former employee. It is patent that the aggrieved party must be the blacklisted employee, not a union, since the latter can neither be fired nor quit." (Service Employees Internat. Union, Local 193, AFL-CIO v. Hollywood Park, Inc. (1983) 149 Cal.App.3d 745, 765 [197 Cal.Rptr. 316].)

"Labor Code section 1050 applies only to misrepresentations made to prospective employers other than the defendant. [¶] . . . [T]he Legislature intended that Labor Code section 1050 would apply only to misstatements to other potential employers, not to misstatements made internally by employees of the party to be charged." (Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, 288-289 [186 Cal.Rptr. 184].)

A communication without malice solicited by a prospective employer from a former employer would be privileged in accordance with Civil Code section 47(c). (See O'Shea v. General Telephone Co. (1987) 193 Cal.App.3d 1040, 1047 [238 Cal.Rptr. 715].)

Civil Code section 47(c) provides, in part, that a privileged publication is one made "[i]n a communication, without malice, to a person interested therein. . . . This . . . 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, [the prospective employer]. 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."

"We . . . recognize that '[t]he primary purpose of punitive damages is to punish the defendant and make an example of him.' Since this purpose is the same as the treble damages authorized by Labor Code section 1054, we do not sanction a double recovery for the plaintiff. In the new trial on damages, the jury should be instructed on the subject of punitive damages based on malice or oppression. Any verdict finding compensatory damages must be trebled by the court. Plaintiff may then elect to have judgment entered in an amount which reflects either the statutory trebling, or the compensatory and punitive damages." (Marshall v. Brown (1983) 141 Cal.App.3d 408, 419 [190 Cal.Rptr. 392].)

Secondary Sources

2 Witkin, Summary of California Law (9th ed. 1987) Agency and Employment, § 313, p. 306

4 Wilcox, California Employment Law, Ch. 63, Causes of Action Related to Wrongful Termination, § 63.06[2] (Matthew Bender)

21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and Hour Disputes, §§ 249.22[3][a], 249.31, 249.81 (Matthew Bender)

Bancroft-Whitney's California Civil Practice: Employment Litigation (1993) Termination of Employment, § 6:27, p. 45; id. (2001 supp.) at § 6:27, pp. 252-253

(New September 2003)