Nov 1

Blacklisting: How Your Boss’ “Bull” Can Gore Your Reputation

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Your reputation is your single greatest asset. In the words of Iago, “Who steals my purse steals trash…, but he that filches from me my good name robs me of that which not enriches him and makes me poor indeed.” Those words apply with particular force when the person who has robbed you of your good name is a former employer. A reference from a former employer can make or break your career. If your resume always seems to fall into a black hole, the chances are good that a former employer is trashing you behind your back – or, as California law calls it, “blacklisting” you. Fortunately, California’s anti-blacklisting laws strictly regulate what an employer can say about a former employee. Here’s what to do if your former employer runs his mouth about you.

California’s Anti-Blacklisting Laws: Good News About Bad References

Good news about bad references: they’re usually illegal. Labor Code section 1050 provides that an employer, or agent or officer of an employer, is guilty of a misdemeanor if, by “any misrepresentation,” he prevents or attempts to prevent a former employee – whether he voluntarily quit or his employer fired him – from obtaining employment. ((Lab. Code §1050.)) That means a job applicant’s former employer or supervisor can try but fail to thwart him from getting a job and still be liable for blacklisting. Similarly, Labor Code section 1052 provides that an employer is guilty of a misdemeanor if he: (1) knowingly “causes, suffers, or permits” any agent, superintendent, manager, or other employee to violate Section 1050; or (2) fails to take all reasonable steps to prevent such a person from violating Section 1050. ((Lab. Code §1052.)) 

Even a former employer’s truthful statements can get him into trouble. Labor Code section 1053 takes some of the heat off an employer by permitting him or anyone on his payroll to truthfully tell a former employee’s prospective employer the reason for the former employee’s discharge or resignation. ((Lab. Code §1053.)) But the speaker may make the statement only in response to a “special request” from the prospective employer for such a statement. ((Id.)) (Presumably,  the speaker must otherwise remain silent about why the former employee’s employment ended, even if a prospective employer initiates the communication.) Even then, the speaker’s insinuation of anything different from what he expressly says about why the former employee’s employment ended is prima facie evidence of blacklisting. ((Id.))

What Can an Employee Get if His Former Employer Blacklists Him?

If an employer tries to blacklist his former employee, the former employer might find himself in the red. For any violation of Labor Code sections 1050 or 1052, the former employee may file a civil action for treble damages – i.e., damages in an amount triple his lost earnings and benefits, emotional distress, and any other actual damages that he might suffer. ((Lab. Code §1054.)) The former employee can proceed in civil court without having to wait for a criminal court to convict the defendant(s). ((Id.)) Moreover, the treble damages are awardable as a matter of right. The trier of fact must, not simply may, treble the former employee’s damages if he can prove by a preponderance of the evidence that the defendant(s) violated Section 1050 or 1052.

Unfortunately, an employee can’t recover both treble damages and punitive damages for blacklisting. ((Marshall v. Brown, 141 Cal.App.3d 408, 419 (1983).)) Generally, a plaintiff can’t recover both treble damages and punitive damages because both forms of compensation accomplish the same goals – punish wrongdoing and protect the public from future misconduct. ((Power Standards Lab, Inc. v. Federal Express Corp., 127 Cal.App.4th 1039, 1047 (2005).)) For a court to award both forms of compensation would hand a plaintiff a double recovery for the same misconduct. Courts therefore presume that the California Legislature doesn’t intend to allow a plaintiff to obtain a double recovery for the same misconduct unless the Legislature “specifically indicates” otherwise. ((Fassberg Construction Co. v. Housing Authority of City of Los Angeles, 152 Cal.App.4th 720, 759-760 (2007).)) In an action for blacklisting, then, an employee will have to elect between treble damages and punitive damages.

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.