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

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/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.

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 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 (11th ed. 2017) Agency and Employment, §§ 302, 373, 374, 377, 379, 387, 416, 455, 459
Chin et al., California Practice Guide: Employment Litigation, Ch.4-D, Implied Covenant of Good Faith and Fair Dealing, ¶  4:351 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-E, Defamation, ¶¶ 5:532, 5:540 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-K, False Imprisonment, ¶¶  5:891–5:893 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 16-E, Statute of Limitations, ¶  16:493 (The Rutter Group)
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)