Class 4: Employment Torts

Topics Overview:

• Overview of Torts in the Workplace: Not all legal issues between employers and employees are contract or statutory; many arise in tort law – civil wrongs causing harm. We cover tort claims that employees can bring against employers (or sometimes coworkers or third parties) and vice versa. Major categories include: wrongful discharge in violation of public policy (a tort as discussed, essentially an at-will exception – heavily featured in Class 2), defamation, invasion of privacy, intentional infliction of emotional distress, fraud/misrepresentation, negligent hiring/retention, and others like battery (in harassment cases, e.g., sexual assault by a supervisor).
• Defamation: Workplace defamation typically involves references or statements about an employee that harm reputation. We discuss the elements – a false statement of fact, published to a third party, causing harm. Common scenarios: an employer giving a bad reference that includes false information, or a supervisor spreading false accusations (e.g., claiming an employee was fired for theft when that’s untrue). We note defenses like truth and qualified privilege. 
• Privacy Torts: There are four classic privacy torts – intrusion into seclusion, public disclosure of private facts, false light, and appropriation. In the employment context, intrusion is most relevant (e.g., unreasonable searches of an employee’s personal space or surveillance in bathrooms) and public disclosure (e.g., releasing sensitive personal information). Illinois recognizes intrusion upon seclusion and public disclosure torts. We’ll examine cases like an employer prying into an employee’s medical records or announcing private information company-wide. We also cover the Illinois Right to Privacy in the Workplace Act (which isn’t a tort but a statute protecting employees’ off-duty lawful activities – for instance, an employee can’t be fired for smoking off-duty, and that law provides a remedy). That statute reflects Illinois public policy on privacy in lifestyle.
• Intentional Infliction of Emotional Distress (IIED): We discuss how IIED can apply in extreme cases of workplace misconduct – the conduct must be truly extreme and outrageous and cause severe emotional distress. Examples: a supervisor’s campaign of severe harassment or an employer’s threat or cruelty beyond normal workplace conflicts. Illinois courts set a high bar for IIED in employment, often ruling that even harsh treatment or firings are not “outrageous” enough unless truly egregious (e.g., a pattern of sexual harassment coupled with retaliation might qualify).
• Negligent Hiring/Retention: Employers can be liable in tort if they hire or keep an employee who they knew or should have known was dangerous or unfit, and that employee then harms someone (could be a fellow employee or third party). For instance, if a daycare hires someone with known past violence and they injure a child, the employer faces negligent hiring liability. In the employment context, co-workers might sue an employer for injuries caused by a dangerous employee. We note that Illinois recognizes this tort and requires a showing the employer had a reason to foresee the harm (background checks, prior complaints, etc.).
• Interaction with Workers’ Comp Exclusivity: A critical point – many tort claims by an employee against their employer for on-the-job injuries are barred by workers’ compensation exclusivity.  We clarify which tort claims are not blocked by comp (e.g., defamation, privacy, IIED in some cases of sexual harassment – those are independent of physical workplace injury).
• Employer’s Tort Claims: Briefly, employers can sue employees for torts too – e.g., breach of fiduciary duty if a high-level employee competes or steals trade secrets (overlaps with Class 5 competition), or conversion if employee embezzles property. We mention these to be comprehensive, though much will be covered in Class 5.

Hypothetical Questions & Model Responses:

Hypothetical: A manager falsely tells other employees that Joe was fired for embezzling funds. In reality, Joe was laid off for economic reasons and did nothing wrong. Joe is having trouble finding a new job because rumors of “theft” are circulating in the industry. What are Joe’s legal options?

Model Response: Joe can consider a defamation lawsuit for injury to his reputation. The manager made a false statement of fact (“Joe embezzled funds”) which was “published” to third parties (told to other employees, and seemingly spreading in the industry) and it clearly harms Joe’s reputation (accusations of serious misconduct like theft are defamatory per se, meaning damages are presumed). Joe would need to prove the statement was false and made at least negligently. Here it appears entirely false. One issue is privilege: Communications inside a company about an employee might be covered by a “common interest” or qualified privilege, protecting the manager if he wasn’t malicious. However, depending on which state’s law applies, that privilege can be overcome if the manager acted with malice – e.g., knowing it was false or recklessly disregarding the truth. If Joe can show the manager knew he wasn’t a thief and spread the lie to harm Joe, the privilege won’t shield the manager or employer. Joe can sue the employer under respondeat superior for the manager’s defamatory statements made in scope of employment. In Illinois, he could file in state court; if successful, he could recover damages for loss of earnings and mental anguish. Aside from defamation, if the manager’s conduct was especially ill-willed, Joe might add an IIED claim – but spreading a rumor, while nasty, might not reach “extreme and outrageous” required for IIED (unless it was part of a larger harassment campaign). So defamation is the clear route.

Hypothetical: During an investigation of workplace theft, a supervisor forcibly takes an employee into a locked office and interrogates her for two hours, yelling and preventing her from leaving. The employee was innocent and found the experience terrifying. What tort claims could she have?

Model Response: The supervisor’s actions implicate several torts: false imprisonment (the employee was confined in a locked office against her will), and possibly intentional infliction of emotional distress (yelling combined with confinement for two hours could be seen as extreme conduct causing severe distress). For false imprisonment, the elements are satisfied if the employee was held against her will with no reasonable means of escape for that period. It sounds like yes – locked office, supervisor blocking exit. The employer might argue it was a reasonable security investigation, but physically detaining an employee and effectively kidnapping them for two hours crosses the line in most cases. Illinois law allows a store to detain a suspected shoplifter for a short time under a privilege, but with an employee and two-hour interrogation, that privilege likely doesn’t apply or was exceeded. So she likely has a false imprisonment claim. As for IIED, the behavior (physically intimidating, yelling, prolonged confinement of an innocent employee) could indeed be “extreme and outrageous,” especially since the employee was innocent – a jury could find the supervisor’s conduct beyond all bounds of decency. The employee would need to show she suffered severe emotional distress (likely, after two hours of that, she might have anxiety, etc.). Workers’ comp exclusivity might arise – since this happened at work, can the employer argue any injuries are covered only by workers’ comp? For intentional torts like this, especially if the supervisor was acting outside the scope of any reasonable discipline.  Depending on which law applies, the lawsuit might proceed on the theory that intentional torts committed by a co-employee or supervisor can be outside the comp bar if the employer didn’t direct it. Also, false imprisonment and IIED aren’t typical “accidental” injuries, so comp likely doesn’t preempt them. This example shows that while employers have some latitude to investigate misconduct, there are clear legal limits – you can’t lock up and terrorize employees.

Federal vs. Illinois Law:

Most tort remedies in employment are creatures of state law (Illinois common law or statutes). Federal law doesn’t generally provide tort causes of action for employment disputes, with a few exceptions: e.g., a federal discrimination claim is not a tort per se (it’s statutory), and workers’ comp is state. There is no federal law of defamation or IIED applicable to private employment – those are state claims. However, federal and state laws can interact. For example, if a defamatory statement is made in the context of a termination, an EEOC charge for discrimination might be filed alongside a defamation suit. Also, some conduct could violate both – e.g., sexual harassment can be a Title VII violation and also potentially an IIED tort. One might pursue both, but usually the tort claim must meet a higher threshold. Illinois’ Human Rights Act can preempt tort claims that are inextricably linked to civil-rights violations. For instance, a claim of IIED based solely on sexual harassment might be dismissed unless the plaintiff can show the conduct was actionable beyond just being discriminatory (some cases allow IIED if the harassment was truly egregious, others say IHRA covers it).

Impacts on Employers and Employees:

• For Employers: Awareness and training are key. Employers should train managers not to make defamatory statements about employees – stick to verifiable facts when giving references (e.g., “eligible for rehire: yes or no”) and avoid airing accusations unless necessary within a privileged context. They should have policies on handling private information (medical info, personal data) to prevent privacy breaches. Employers must also carefully handle internal investigations: you can question employees, but do not physically detain or intimidate – involve security or police if theft is suspected rather than vigilante interrogations. Ensuring a respectful workplace not only helps avoid IIED claims, it also boosts morale. Also, consider employment practices liability insurance (EPLI) – many policies cover defamation or IIED claims arising from employment decisions, giving financial protection.
• For Employees: Employees should know that not every abusive workplace situation is covered by statutes – sometimes tort law is the recourse.  Understand the limits: Feeling unfairly criticized or yelled at, by itself, usually isn’t enough for a tort unless it’s truly egregious. Workers should also utilize internal complaint mechanisms – for example, if a supervisor is bullying (but not discriminating), report it; even if no specific law prohibits general bullying, some employers will address it to avoid escalation. Also, employees need to be careful themselves: if you vent on social media, you might expose yourself to defamation claims by your employer (truth is a defense, but be sure of facts). 

Additional Commentary & Resources:

• Emerging Area – Workplace Bullying: There’s a growing movement advocating for laws allowing tort claims for severe workplace bullying that isn’t based on protected class (so-called “Healthy Workplace” legislation). Illinois has not enacted such a law, but it has been discussed. Currently, victims must shoehorn bullying cases into IIED or constructive discharge claims, which are hard to win. Students might consider whether tort law should evolve to fill that gap.
• COVID-19 Related Torts: The pandemic raised issues like what if an employer publicly discloses an employee’s COVID status (privacy tort?) or if an employee sues saying the employer’s lax safety caused emotional distress. While workers’ comp covers actual illness, some attempted IIED claims for fear of exposure failed. And defamation cases arose from companies announcing “Employee X violated COVID protocol” falsely. It’s a developing intersection of tort and public health in employment.