Blacklisting and Preventing Subsequent Employment by Misrepresentation: California Labor Code Section 1050

Introduction

California Labor Code section 1050 protects workers from “blacklisting” by former employers. After employment ends, it is unlawful for an employer (or its agents) to make misrepresentations to prospective employers that prevent or attempt to prevent a former employee from obtaining new work. Violations can result in both criminal and civil liability.

Legal Elements

To establish liability under section 1050, a former employee must typically show:

1. The employer or its agent made a representation to a prospective employer about the former employee after employment ended;

2. The representation was untrue;

3. The employer knew it was false when made;

4. The statement was made with the intent of preventing the employee from finding subsequent employment;

5. The employee was harmed; and

6. The employer’s conduct was a substantial factor in causing that harm.

CACI No. 2711; Kelly v. Gen. Tel. Co., 136 Cal. App. 3d 278, 288–89 (Ct. App. 1982); Serv. Emps. Int’l Union, Local 193, AFL-CIO v. Hollywood Park, Inc., 149 Cal. App. 3d 745, 765 (Ct. App. 1983).

Scope and Coverage

Section 1050 applies only to misrepresentations made to third-party prospective employers, not to internal company remarks or statements made to colleagues. Kelly, 136 Cal. App. 3d at 288–89. Truthful, good-faith communications requested by potential employers are generally privileged, provided they are not malicious or reckless. Civil Code § 47(c); O’Shea v. Gen. Tel. Co., 193 Cal. App. 3d 1040, 1047 (Ct. App. 1987).

Remedies

Knowingly violating section 1050 is a misdemeanor offense. Lab. Code § 1050. Aggrieved employees may recover actual damages, which are subject to mandatory treble damages under Lab. Code § 1054. The plaintiff must elect between statutory treble damages and punitive damages but cannot recover both. Marshall v. Brown, 141 Cal. App. 3d 408, 419 (Ct. App. 1983).

Important Nuances

While courts and jury instructions usually require knowledge and intent, a minority of legal commentary suggests section 1050 liability might be possible for negligent or reckless misrepresentations. The safest course is to avoid any false or exaggerated statements.

Employer Best Practices

• Provide only factual, accurate, and non-malicious references to prospective employers.

• Train supervisors and HR professionals to avoid misrepresentation in any communications regarding former employees.

• Restrict reference responses to authorized personnel and ensure consistent application of neutral reference policies.

• Keep detailed records of all communications with prospective employers.

• Respond to reference checks with verified facts, such as job title and dates of employment, rather than subjective opinions.

• Regularly review and update company policies with counsel to ensure compliance with Labor Code § 1050.

Bottom Line

California strictly prohibits employers from interfering with former employees’ future employment prospects through misrepresentation. The law is designed to protect workers from blacklisting and carries significant penalties for violations.

Citations

Lab. Code §§ 1050–1054; Civil Code § 47(c); Kelly v. Gen. Tel. Co., 136 Cal. App. 3d 278 (Ct. App. 1982); Serv. Emps. Int’l Union, Local 193, AFL-CIO v. Hollywood Park, Inc., 149 Cal. App. 3d 745 (Ct. App. 1983); O’Shea v. Gen. Tel. Co., 193 Cal. App. 3d 1040 (Ct. App. 1987); Marshall v. Brown, 141 Cal. App. 3d 408 (Ct. App. 1983).