CACI No. 2711. Preventing Subsequent Employment by Misrepresentation - Essential Factual Elements (Lab. Code, § 1050)

Judicial Council of California Civil Jury Instructions (2020 edition)

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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/nonbinary pronoun] 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/nonbinary pronoun/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.
New September 2003
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
• Preventing Later Employment by Misrepresentation. Labor Code section 1050.
• Permitting Violation is Misdemeanor. Labor Code section 1052.
• Civil Liability for Violation. Labor Code section 1054.
• Truthful Statement for Termination of Employment. Labor Code section 1053.
• Privileged Publications. Civil Code section 47(c).
• “Section 1054 provides for a damage remedy for the party aggrieved by a
violation of the section 1050 prohibition against an employer blacklisting a
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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].)
• “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
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 284, 349, 352, 354-359, 381, 413, 417
Chin et al., California Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 4:351, 5:532, 5:540, 5:892.10, 16:493
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)
California Civil Practice: Employment Litigation § 6:29 (Thomson Reuters)
2712-2719. Reserved for Future Use
CACI No. 2711 LABOR CODE ACTIONS
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