03 Chapter- Commonly Committed Workplace Torts PDF

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Professor: John Sivie, [email protected]
Course: MGMT 4402, Positive Employee Relations...

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Notes [Management 4402-01] Chapter #03: Commonly Committed Workplace Torts 2018-02-02 INTRODUCTION  Review of the common torts in the workplace environment.  Tort law primarily consist of personal injury law.  Common workplace torts include defamation, intentional infliction of emotional distress, interference with contracts, and theft of trade secrets.  Employers are not liable for all torts employees suffer on the job.  Collective Bargaining Agreements and state workers compensation statutes insulate employers from some lawsuits.  Tort is a private or civil wrong or injury, caused by one party to another, either intentionally or negligently.  In many states workers’ compensation insurance immunizes many employers from some tort liabilities.  Additionally, where the workforce is unionized or where the employer is a public entity the employees right to bring a common-law tort action against the employer may be subject to significant restrictions.

DEFAMATION; LIABLE AND SLANDER  One of the most common workplace torts is defamation.  Defamation is an intentional, false, and harmful communication.  Liable and Slander 1. Communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. 2. Defamation can come in the form of libel or slander  Libel: a written falsehood  Slander: a spoken falsehood 

The defamation is termed “per se” if the information is of a type easily recognizable is causing damage, such as: 1. Imputation of a crime of a crime. o Telling someone did a crime, “IMPUTATION” he did it! 2. Having a loathsome disease. 3. Affecting the plaintiff in his or her business, trade, or profession.

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Business Defamation o Defined as false spoken or written words that tend to prejudice another in his or her business, trade, or profession. o Business defamation is actionable without proof of special damage if they affect an individual in a manner that may result in a consequence or prevent this individual from deriving a reward which probably otherwise might have been obtained.  I have a little café and I make breakfast and now they’re making rumors and I lost money. o This is a “per se” tort and can give rise to strict liability.

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Strict Liability o When a plaintiff prevails without having to prove negligence.

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The law of defamation varies from state to state, but there are some generally accepted rules. If you believe you are have been "defamed," to prove it you usually have to show there's been a statement that is all of the following:

o o o o

Published False Injurious Unprivileged

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Defamation can be spoken, written, pictured, or even gestured. Because written statements last longer than spoken statements, most courts, juries, and insurance companies consider libel more harmful than slander. 1. Published a. "Published" means that a third party heard or saw the statement -- that is, someone other than the person who made the statement or the person the statement was about. b. "Published" doesn't necessarily mean that the statement was printed in a book -- it just needs to have been made public through social media, television, radio, speeches, gossip, or even loud conversation. 2. False a. A defamatory statement must be false -- otherwise it's not considered damaging. i. The statement has to be false. b. Even terribly mean or disparaging things are not defamatory if the shoe fits. c. Most opinions don't count as defamation because they can't be proved to be objectively false. i. Most opinions don’t count as defamation because they can’t be proven to be false. d. For instance, when a reviewer says, "That was the worst book I've read all year," she's not defaming the author, because the statement can't be proven to be false. 3. Injurious a. Since the whole point of defamation law is to take care of injuries to reputation, those suing for defamation must show how their reputations were hurt by the false statement. b. For example, the person lost work; was shunned by neighbors, friends, or family members; or was harassed by the press. c. Someone who already had a terrible reputation most likely won't collect much in a defamation suit. 4. Unprivileged a. The offending statement must be "unprivileged." b. Under some circumstances, you cannot sue someone for defamation even if they make a statement that can be proved false. c. For example, witnesses who testify falsely in court or at a deposition can't be sued. (Although witnesses who testify to something they know is false could theoretically be prosecuted for perjury.) i. When you swear to tell the truth but you lie and give false testimony, you are prosecutes for perjury. d. Lawmakers have decided that in these and other situations, which are considered "privileged," free speech is so important that the speakers should not be constrained by worries that they will be sued for defamation. e. Lawmakers themselves also enjoy this privilege: They aren't liable for statements made in the legislative chamber or in official materials, even if they say or write things that would otherwise be defamatory. i.

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Qualified Privilege o When one person is in good faith communicating information to another person where the other person has a need to know, such as a performance evaluation. o Qualified privileges immunity from a suit in the absence of malice.

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Absolute Privileges o When a person makes statements in connection with a legal proceeding.  When you are a witness in a stand. You have a right to state your opinions. This would be protected under qualified privilege.

TORTUOUS INFLICTION OF EMOTIONAL DISTRESS  Elements of a prima facie case of intentional infliction of emotional distress. 1. Extreme and outrageous conduct by the defendant. 2. The defendant’s intention of causing, or reckless disregard of the likelihood of causing, emotional distress. i. We can find that some supervisors are unqualified and start firing people. 3. The plane of suffering of severe emotional distress. 4. As a direct result of the defendant’s extreme and outrageous conduct. i. If you have some type of disability, let them know before.

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Intentional Infliction of Emotional Distress o Purposely-outrageous conduct causing emotional harm.

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Negligent Infliction of Emotional Distress o Makes the defendant liable for damages for unreasonable behavior that results in severe emotional harm to the plaintiff even though the defendant never meant to inflict any harm. o Negligent infliction of emotional distress is carelessly outrageous conduct causing emotional harm.  Sometimes you go into work offices and you work in a sales and you have to work based on calls and you get a lot of pressure doing so. You can sue for these damages.

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Nelson was fired from employment at target after security officers determined that she took a customer’s wallet. Nelson claims she mistook the customer’s wallet for her own, but the employers said, based on the security camera footage, that was impossible. Nelson sued target for intentional infliction of emotional distress, alleging that her employer “interrogated her at length and repeatedly accused her of being dishonest” even though he knew or should have known that Nelson was telling the truth. o The target act outrageously, purposely causing emotional harm? o The court found that the employer’s conduct was not sufficiently outrageous for Nelson’s claim to withstand summary judgment.

TORTUROUS INTERFERENCE WITH CONTRACT  Torturous Interference with Contract is unprivileged intrusion into a contractual relationship. o You’re up for privilege, and I go up to the manager and tell the manager all these terrible things, I just completed torturous interference.  Case o A former employee, Dawn Duty, brought action against her former employer, the Boys and Girls Club of Porter County (B GC), and a former coworker, Charles R. Lear, alleging wrongful discharge and torturous interference with the contractual relationship, claiming that the employer violated its policy to protect employees from retaliation under the employee handbook’s whistleblower policy and that the coworker persuaded the employer to terminate her employment.  Did the plaintiff prove a torturous interference claim against the defendants?

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The judges held that Duty’s claim could be granted relief for torturous interference with the contractual relationship. They reinstated her case.

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Retaliatory Demotion o The elements are very similar to a claim of wrongful discharge. o Retaliatory demotion is reduction in rank, salary, or job title is a punishment.

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Theft of Trade Secrets o Are the proprietary information protected by common law or state law. o The employer’s rights are reinforced through a confidentiality and noncompetition agreement signed when a new employee is hired. o The agreements forbid an employee from taking valuable trade secrets from a company.

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Case o TSG Finishing is in the business of fabric finishing, applying chemical coatings to achieve whichever result is desired by the customer, such as coloring, stiffening, deodorizing, and abrasion resistance. The information used to achieve these finishes was a confidential trade secret. An employee, Bollinger, left TSG to work for ACF, a company in the same business that shared certain customers, where Bollinger was responsible for performing similar customer evaluation for ACF as he did at TSG. TSG Finishing filed suit against Bollinger, alleging claims for breach of contract, misappropriation of trade secrets, and unfair and deceptive practices.  Did Bollinger misappropriate trade secrets?  Yes, It was concluded that TSG, the plaintiff, carried its burden of presenting evidence sufficient to identify the specific trade secrets protected by the TSP....