Workplace Torts

A tort is a wrongful act or an infringement of a right (other than other a contract) that leads to civil legal liability.

If your employer deceived or misrepresented facts to you, and you relied on those facts to your detriment, your employer may have committed “fraud.” To prove fraud, you have to show that a manager purposefully told you something that he or she knew was false at the time, with the intent of deceiving and harming you. You also have to show that the fraud caused you some actual harm, such as monetary loss.

A person is “defamed” when one person communicates a lie or makes a false accusation about another person, either orally or in writing, to a third person, which causes damage to the person’s reputation. Defamation can be written or verbal. The legal term for written defamation is “libel.” The legal term for oral defamation is “slander.”

In the employment setting, defamation most often occurs if a supervisor or manager makes a false accusation of dishonesty or serious misconduct against an employee in front of co-workers or members of management or if an employer provides false information to a potential employer calling for a reference.

Many termination cases are also potential defamation cases. Sometimes the employer states facts about work performance or competency which can be proven false.

However, in order to carry on its business efficiently, a company is entitled to what is known as a “qualified privilege” to make statements about its employees regarding discipline, termination, and references. It is not enough that your employer made a false statement about you. The person making the statements must have acted maliciously, known that the statement was false, or have been reckless in determining whether the statement was true or not.

If your employer simply makes a mistake in providing a reference by looking at the wrong file, for instance, you do not have a claim for defamation, even though your employer gave out false information. If your employer gives an unfavorable opinion about your work to another person, you do not have a claim for defamation unless your employer states that the unfavorable opinion was based on a fact which is not true and which damages your reputation. Opinions generally cannot be the basis for a claim of defamation.

Finally, you must prove that your reputation has been injured in order to recover for defamation. Some false statements are presumed to be injurious to reputation (“She stole from the company right and left”) while others must be shown to have actually injured your reputation in the community.

“False imprisonment” occurs when a person’s freedom of movement is impeded without that person’s permission and without legal justification. False imprisonment can occur, for example, if your manager calls you into his or her office and refuses to allow you to leave (by locking the door or threatening you) and then proceeds to interrogate you about workplace problems or even about personal issues. Whether you have been falsely imprisoned depends on all of the facts and circumstances of the situation, including the length of time you are held against your will, the reason for your detention, and the manner in which your freedom to leave is impeded.

False imprisonment claims, like other personal injury or tort claims, are generally brought together with a claim of wrongful discharge or discrimination and not by themselves. However, in particularly serious situations, these claims can be brought alone.

The terms “assault” and “battery” are used interchangeably by many people, but each has its own legal definition. In civil (non-criminal) law, a “battery” occurs any time a person is touched by another person or object without that person’s consent. An “assault” occurs when one person attempts to touch a person either with his body or an object without that person’s consent. If someone swings his fist at you and misses, you have been assaulted. If someone swings at you and hits you in the face, you have been battered (again, for the purposes of civil law, criminal definitions will differ).

If you have been assaulted or battered by someone at work, you can sue that person for your injuries. Under some circumstances, your employer may also be responsible to you for an assault committed by a supervisor or other employee in the course of his or her duties. In the context of employment terminations, an unlawful battery can occur when a security guard forcefully removes an employee from the premises by making physical contact with the employee or shoves the employee into his or her desk or locker while the employee is trying to gather personal belongings.

Your employer can also be held responsible under discrimination laws for a battery committed by someone who harasses you on account of your sex, age, race, disability, color, or national origin if the harasser’s conduct becomes physical. If you complained to your employer about the harassment before it became physical and your employer failed to stop the harassment, some states allow recovery against your employer for the physical battery.

Generally, if you are injured at work by another employee, whether your co-worker intended to injure you or not, you are entitled to “workers’ compensation” for your injuries and lost work time. If an employee is seriously injured by another employee, the workers’ compensation system may not provide sufficient monetary support for the loss of income, and it usually doesn’t provide any compensation for “pain and suffering.” If you prove that your employer is responsible for injuries sustained in an assault at work, you can recover “pain and suffering” damages and punitive damages-which might be substantial.

Most states do not impose a general duty of care upon companies concerning the employment relationship. Thus, an employer who mistreats, harasses, improperly evaluates, or wrongfully dismisses an employee is not liable for a claim of negligence. However, in many states negligent misrepresentation of material facts, negligent hiring, supervision or retention of a dangerous employee, negligent infliction of emotional distress, and negligent failure to provide a safe workplace may be grounds for a lawsuit. Separate from the question of employer negligence, an employee may be able to sue independent contractors such as doctors, polygraph examiners, detectives, and drug testing agencies for negligent performance of their duties.

This selection was originally excerpted from Job Rights and Survival Strategies by Paul H. Tobias and Susan Sauter.