Cal-Peculiarities: How California Employment Law is Different 2022 Edition

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 109 communications enjoying this protection are (1) reports of sexual harassment made by an employee to the employer based on credible evidence, (2) communications regarding sexual harassment allegations between the employer and “interested persons” (such as witnesses or victims), and (3) statements made to prospective employers as to whether a decision to rehire would be based on a determination that the former employee engaged in sexual harassmen t. 252 5.9 Misrepresentation Claims 5.9.1 Employer liability for fraudulent inducement Labor Code section 970 authorizes double damages for an employee who has been induced to change from one place to another by false promises regarding employment. Many states refuse to use the doctrine of promissory estoppel to aid an employee who leaves a job to accept an at-will job that never materializes. In California it’s different. Even if the plaintiff has left an at-will employment, the California employer inducing the plaintiff to leave another’s employ can be liable under theories of promissory estopp el 253 o r promissory frau d 254 for the income the plaintiff lost by leaving the prior employer in reliance on the new employer’s pre-hire promises. A California court held that a plaintiff who was hired by an at-will employer with false promises of compensation, and who was fired six months later for complaining about the broken promises, could recover the compensation that he would have earned with his former employer, which would have re-hired him but for its strict no-rehire policy . 255 5.9.2 Employer liability for too-generous references: negligent referral A California employer that gives a reference praising a former employee, while failing to report facts showing the employee’s dangerous tendencies, may be liable for intentional or negligent misrepresentation. A school district that praised a former employee for his ability to work with children, while failing to report his misconduct with children, was subject to a misrepresentation suit by a child whom the employee molested in his new employmen t. 256 5.9.3 Employer liability for blackballing Labor Code section 1050 makes an employer liable for treble damages for misrepresentations to prevent a former employee from obtaining new employment. 5.10 Employer Liability for Employee Torts 5.10.1 Negligent retention of wrongdoing employees An employer is liable for injuries to third parties caused by an employee whom the employer retained while knowing of the employee’s known propensities to cause such har m. 257 5.10.2 Intentional torts by employees The traditional rule is that an employee’s actions are within the scope of employment—and thus binding on the employer—only if they are motivated, in whole or part, by a desire to serve the employer’s interest. Deviating from this rule, California courts have expanded employer liability by reasoning that an employee’s willful, malicious, and even criminal torts can fall within the scope of employment. In California, the employer is vicariously liable for an employee’s conduct—even if that conduct is not authorized or ratified—if the employment predictably creates the risk that employees will commit torts of the type for which liability is sought.