Chapter 3
COMMONLY COMMITTED WORKPLACE TORTS
INTRODUCTION
Chapter three reviews the common torts in the workplace environment. Tort law primarily consists of
personal injury law. Common workplace torts include defamation, intentional infliction of emotional distress,
CHAPTER OUTLINE
I. INTRODUCTION
Tort is a private or civil wrong or injury, caused by one party to another, either intentionally
or negligently.
A. Restrictions
i. In many states Workers’ compensation insurance (see Chapter 21) immunizes
3-1 DEFAMATION: LIBEL AND SLANDER
A. One of the most common workplace torts is defamation.
Defamation is an intentional, false, and harmful communication.
i. Libel and Slander Defined
1. Communication that tends so to harm the reputation of another as to
*Libel: a written falsehood.
*Slander: a spoken falsehood.
Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 3
2. having a loathsome disease
3. affecting the plaintiff in his business, trade, or profession.
B. Business defamation is defined as false spoken or written words that tend to prejudice
another in his business, trade, or profession are actionable without proof of special
*Strict liability is when a plaintiff prevails without having to prove negligence.
ii. Defenses to claims of defamation are:
1. The statements were not “published” to a third party.
2. The statements were true, or (however, the professor should note that in
*Qualified privilege is immunity from a suit in the absence of malice.
CASE 3.1 TOLER V. SD-CHEMIE, INC.
— S.W.3d —-, 2014 WL 7238202 (Ky. Supreme Ct. 2014)
Facts: Employee, Toler, was fired for allegedly making racist comments to other employees. Toler then
filed the present case, arguing the employees had fabricated the allegations resulting in his termination,
and, as a result, had defamed him.
ANSWERS TO CASE QUESTIONS
Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 3
1. Abuse of the qualified business privilege typically means that the person enjoying the privilege
either knows his/her communication is false or recklessly disregards the possibility of its falsity.
2. The American common law has created a range of privileges behind which a defendant can seek
shelter, when faced with a defamation suit. Absolute privileges include congressmen speaking on
the floor of the House or Senate; witnesses testifying under oath in a court or administrative
3. In order for a plaintiff in a tort case to recover damages, s/he must prove by a preponderance of the
evidence a causal nexus between the defendant’s intentional or negligent conduct and the harm.
3-2 TORTIOUS INFLICTION OF EMOTIONAL DISTRESS
A. Elements of a prima facie case of intentional infliction of emotional distress*:
i. extreme and outrageous conduct by the defendant;
*Intentional infliction of emotional distress is purposely-outrageous conduct causing
emotional harm.
B. Negligent infliction of emotional distress* is recognized in a minority of jurisdictions. In
*Negligent infliction of emotional distress is carelessly outrageous conduct causing
emotional harm.
CASE 3.2 NELSON V. TARGET CORPORATION
334 P.3d 1010 (Utah Ct. App. 2014)
Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 3
Background: Nelson was fired from employment at Target after security officers determined that she took
a customer’s wallet. Nelson claimed 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
ANSWERS TO CASE QUESTIONS
1. In this case, the employer told Nelson that he did not believe she had taken the wallet by
mistake and gave her several opportunities to explain herself. The interview was private and,
according to company policy, conducted in the presence of a human resources representative.
2. Nelson argued that because her employer admitted that he “conducted the interrogation after he
had determined that Nelson had intentionally taken the wallet and was to be terminated,” “the
3. “Negligence” means careless behavior. Here the employer-defendant took a deliberate action.
If this were a tort—which the court found it was not—it would have been an intentional one.
THE WORKING LAW
Infliction of Emotional Distress via Social Networking Sites
Two high school students surreptitiously created a profile on a social networking site appearing to have been
created by the vice principal of their high school. The MySpace page included numerous explicit and graphic
3-3 TORTIOUS INTERFERENCE WITH CONTRACT*
Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 3
A. It is sometimes available to plaintiff-employees against third parties, who are sometimes
*Tortious interference with contract is unprivileged intrusion into a contractual relationship.
CASE 3.3 BULWER V. MOUNT AUBURN HOSP.
86 Mass. App. Ct. 316, 16 N.E.3d 1090 (2014)
Facts: An employee, who was an experienced physician and a black man from Belize, brought his action
against his hospital employer after he was terminated from the residency program, alleging
discrimination and retaliation based on his race and national origin, breach of contract, defamation, and
tortious interference with contractual relationship. Eight months into the program, he was told that the
CASE 3.4 DUTY V. BOYS AND GIRLS CLUB OF PORTER COUNTY
— N.E.3d —-, 2014 WL 7201770 (Ind. Ct. App. 2014)
Facts: A former employee, Dawn Duty, brought action against her former employer, the Boys and Girls
Club of Porter County (BGC), and a former coworker, Charles R. Leer, alleging wrongful discharge and
tortious interference with a contractual relationship, claiming that the employer violated its policy to
CASE 3.5 OLIVER V. ORLEANS PARISH SCHOOL BD.
133 So.3d 38 (La. App. 4 Cir. 2014)
Facts: Employees of a parish school district, who were terminated by a reduction in force (RIF) after
failing schools in the parish were transferred to the Recovery School District (RSD), filed a class action
against the board and the Louisiana Department of Education (LDOE) for wrongful termination and also
asserted a claim against LDOE for tortious interference with their employment contracts.
Issue: Do the plaintiffs have a tortious interference with contract claim against the defendant, because it
terminated their employment?
Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 3
Decision: The court found that ACT 35 (which allowed for the automatic transfer of a failing school to
ETHICAL DILEMMA
When an Employee-Lawyer Sues His Own Law Firm
A California attorney sued his own law firm, claiming that his pay had been docked because he refused to
attend a weekend-long “New Warrior” personal-development seminar that allegedly would include the
men disrobing and passing around a wooden phallus. The event was hosted by the ManKind Project, an
organization that claims to promote “modern male initiation and self–examination.” The plaintiff-attorney
claimed he was being paid $15,000 a month until he refused to attend the event. The defendant-firm
countered that his six-month contract wasn’t renewed because his performance was sub-par. The
attorney’s complaint pled every cause of action discussed in this chapter, and then some.
QUESTIONS:
Putting aside the potential merits of the case, is it ethically inappropriate for an attorney to sue his own
law firm?
3-4 RETALIATORY DEMOTION*
3-5 THEFT OF TRADE SECRETS*
*Trade secrets are proprietary information protected by common law or state statute.
CASE 3.6 TSG FINISHING, LLC V. BOLLINGER
—S.E.2d—, 2014 WL 7463824 (N.C. App. 2014), motion for temporary stay granted, —S.E.2d—, 2015
Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 3
WL 246016 (N.C. Supr. Ct. 2015)
Facts: 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 evaluations 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.
Issue: Did Bollinger misappropriate trade secrets?
Decision: Each of the relevant factors weighed in the plaintiff’s favor. The company specifically
ANSWERS TO CASE QUESTIONS
1. The information at issue here is among the most difficult for the courts to evaluate in terms of its
trade-secret status. First, employees such as the individuals in this case cannot help but become
familiar with such information in the course of employment. It’s impossible to flush this
2. As outlined in (1), above, two issues are paramount: is the information really a trade secret (or is it
information that any competitor either can discover or develop on its own)? And, if the proprietary
3. A middle ground is sometimes set, either by the court or more frequently through a settlement of
the case, under which the plaintiff agrees to give the defendant a license to use the information and
the defendant agrees to a reasonable royalty, both sides agreeing to disagree about the trade-secret
status of the information at issue.
ANSWERS TO END OF CHAPTER PROBLEMS
QUESTIONS
1. It is the defendant’s burden to prove up a qualified privilege, since this—like truth—is an
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2. Absolute privilege to defame adheres to Members of Congress when speaking on the floor (but not to
press releases from their offices); witnesses in court, and usually agency, proceedings (who are not
3. Once the genie is out of the bottle, it can’t be put back. The whole point of a trade secret is that its
value dissipates, if it is revealed. This meets the requirement of irreparable harm required for the
4. Strict liability means that the defendant’s state of mind—intent, carelessness, recklessness or
innocence—is irrelevant. However, the plaintiff retains the burden of proving all other elements
5. It’s easy to conceive of situations, notably those implicating express contracts of employment, where
CASE PROBLEMS
6. The court found that the defendants were guilty of tortious interference in this case, accepting the
ruling of the lower court that “[t]here is direct evidence that [Hanlon’s and Greene’s] departure
was calculated to cripple the Reeves firm’s ability to provide legal services: they left abruptly,
7. Students may disagree on whether or not the requested information (customer lists, customer contact
information, and pricing information) constitutes a trade secret. Triangle Fire, for example, claimed
that the requested customer lists were a compilation of information readily available to the public as
opposed to information acquired or compiled through Sea Coast Fire’s industry. Trade secrets are
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8. The statements at issue were within the qualified privilege, and so the burden fell on the plaintiff to
9. Statements made during the course of judicial proceedings are generally considered absolutely
privileged and cannot form the basis of a defamation claim. However, the case at hand was
10. Students may debate this issue, as it has not yet been decided by a court of law. The most recent
11. The court found ample evidence to support the jury’s conclusion that the plaintiff’s complaints were
protected activity and that his demotion was in retaliation for those complaints. The anonymous letter
12. The plaintiff‘s theory of ratification was based solely upon one phone call in which she alleged Ms.
Yates told her not to report the incident, but if she did, not to use the name of the party involved. In
order to prove ratification, plaintiff must first show that defendant Sara Lee “had knowledge of all
13. The appellant could not prove that the appellee’s conduct was extreme and outrageous, as required
for a claim of intentional infliction of emotional distress, as the appellant did not suffer a work injury
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14. Pierce did not provide sufficient grounds for claims of intentional or negligent infliction of emotional
distress. Both negligent and intentional infliction of emotional distress require that the emotional
HYPOTHETICAL SCENARIOS
15. No, Fred did not defame his captain because his accusations were not phrased as fact. This is evident
by the use of the word, “probably.” If it were defamation, it would qualify as defamation per se,
16. No, the company did not create the robbery or control the robber’s actions. It has no liability for
intentional infliction of emotional distress.
18. Dana is not the victim of retaliatory demotion. The demotion was in response to her having made a
19. The case scenario contains no information regarding trade secrets. Not everything an employee
learns in the course of their employment equates to trade secrets. Also, Nancy did not attempt to steal