This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Questions which are the converse of those presented in strikes exist where employers combine to prevent certain workmen from obtaining employment. This often takes the form known as the "blacklist." It has been held that an employe who by reason of having taken part in a strike has been blacklisted, can not have an injunction against the employers to prevent them from continuing to act in conspiracy not to employ such employe.1 The existence of any civil remedy has been denied.2 Some cases are presented in which employers will not accept an employe unless he has a certificate or clearance card from his last employer. Such last employer is, even under such circumstances, under no obligation at common law to furnish such certificate.3 Hence, if such employe is refused employment for want of such certificate, he can not maintain an action against his former employer for refusal to give such certificate.4 Where the former employer assigns a reason for the discharge of the employe, and such reason is entered upon the employer's records or transferred to the certificate given to such employe at his request, the action of the employe is often based on the theory that such former employer is liable for slander or libel if such assigned reason is false. It has been held that if the entry on the employer's books is false and prevents the employe from obtaining employment, such employe may maintain an action against such employer.5 In other cases there seems to be a tendency to hold that entries, made for the benefit and sole use of the employer, and transferred to the certificate at the request of the employe, are not actionable unless malicious. Thus entering the ground of discharge as "carelessness," on the discharge list of a railway for its own use, is not actionable unless malicious.1 Publication is often lacking, and hence neither libel nor slander can exist. Thus the entry on employe's record, "Dismissed - insolent and abusive to company's patrons," was read by one clerk to another, who copied it on a card. It was signed by the employer's superintendent and given to the employe. All this was done because of his request for his record. No other publication was shown, and from the evidence it was at least very probable that the alleged ground of discharge was true. It was held not libel.7 Even if it has been shown that the agreement between employers not to accept former employes of each other is the cause of the employe's being refused employment, or being discharged, it has teen held that no action will lie against any of such employers. Two insurance companies, B and X, entered into an agreement not to employ any one who had worked for the other within two years from the termination of his former employment. A had worked for X, had been discharged and had been employed by B under a contract for an indefinite term. When B and X made their contract, B discharged A. A had, of course, no remedy against B for breach of contract, and it was held that in tort A could recover neither against B,8 nor against X.9 The reason advanced for this rule is that such contract between the insurance companies is illegal, hence not binding; hence, the failure to secure employment is in law due to the voluntary and rightful act of the employer.10 While such reasoning is rather artificial, Kentucky is a state in which procuring breach of a contract of employment is not actionable.11
14Boutwell v. Marr, 71 Vt. 1, 76 Am. St. Rep. 746, 43 L. R. A. 803, 42 Atl. 607.
15 Hawarden v. Coal Co., 111 Wis. 646, 87 N. W. 472.
16Delz v. Winfree, 80 Tex. 400, 26 Am. St. Rep. 756, 16 S. W. 111.
17 Park & Sons Co. v. Druggists' Association, 175 N. Y. 1, 96 Am. St. Rep. 578, 67 N. E. 136.
18 Employing Printers' Club v. Dr. Blosser Co., 122 Ga. 500, 106 Am. St. Rep. 137, 69 L. R. A. 90, 50 S. E. 353.
1 Worthington v. Waring, 157 Mass. 421, 34 Am. St. Rep. 294, 20 L. R. A. 342, 32 N. E. 744. (The court declined to express any opinion as to whether he had a remedy at common law; but said that if he had any, it was by indictment.)
2Boyer v. Telegraph Co., 124 Fed. 246.
3 Cleveland, etc., Ry. v. Jenkins, 174 111. 308, 66 Am. St. Rep. 296, 62 L. R. A. 922, 51 N. E. 811.
4 New York, etc., R. R. v. Schaffer, 65 O. S. 414, 87 Am. St. Rep. 628, 62 L. R. A. 931, 62 N. E. 1036. (In this case it was pointed out by one of the court that the record failed 1o show any agreement between the former employer and the employer refusing employe not to hire former employes without such certificated
5 Hundley v. R. R., 105 Ky. 162, 88 Am. St. Rep. 298, 48 S. W. 429. (This is part obiter, since the declaration was held to be demurrable, as it did not show that by reason of such false entry plaintiff had been unable to obtain employment.)
6 Missouri Pacific Ry. v. Richmond, 73 Tex. 568, 15 Am. St. Rep. 794, 4 L. R. A. 280, 11 S. W. 555.