Six legal traps for “red state” employers

It seems like all we ever read about is those more activist “blue states” — California, Illinois, Massachusetts, New Jersey, New York . . . 

If you’re an employer in a more employer-friendly “red state,” you may feel left out. “Nobody ever writes about us! *sob*“

Or, you may be feeling cocky. “I’ll never get sued! Eat your heart out, California!”

Maybe your state doesn’t have an anti-discrimination law. Maybe your state doesn’t recognize a claim for wrongful discharge, and if it does, the termination has to be outrageously atrocious to qualify. Maybe your state Department of Labor is reasonable and helpful, and all of your state wage-and-hour laws are modeled after the Fair Labor Standards Act.

(This is beginning to sound like an Old Irish Blessing for employers.) 

But do you really have nothing to worry about if you’re in a less-regulated state? Of course not. First, you always have to worry about federal law. Even putting federal law aside, here are six legal claims an unhappy employee can bring in any state in the Union:

Trap No. 1: Assault and battery. An “assault” is intentionally putting someone in reasonable fear of imminent harmful or offensive contact. A “battery” is a harmful or offensive touching. (It doesn’t have to be violent — just offensive.) Assault and battery claims are sometimes legitimately asserted when an employee is being sexually harassed, or bullied in the workplace.

Trap No. 2: Defamation. A defamatory statement is a statement to a third party that (1) seems “factual” (“Joe got fired for stealing”) but is untrue (Joe was actually allowed to resign because the company only suspected that he might be stealing) and (2) would hurt the reputation of a person. A defamation victim usually has to prove that he or she suffered some type of economic damage as a result of the defamation, but not always. 

In the employment context, defamation claims are a risk when a member of management talks too much and too carelessly about an employee’s termination, or provides a bad reference to the employee’s prospective employer that is not completely accurate. If the defamatory statement is in written form (including online), then it’s “libel.” If the defamatory statement is oral, then it’s “slander.”

Truth is a defense to a defamation claim, and statements of opinion (“Joe was a horrible employee”) are not defamatory. 

Not that I recommend telling Joe’s prospective employers that he was a horrible employee. 

Trap No. 3: False Imprisonment. This consists of restricting a person’s freedom of movement without justification. It doesn’t come up too often in employment litigation, but when it does, it’s usually when an employee suspected of dishonesty or other misconduct is held for questioning and doesn’t feel free to leave.

Trap No. 4: Intentional Infliction of Emotional Distress. This is (1) extreme and outrageous conduct (2) that is intended to cause and does in fact cause (3) severe emotional distress. The conduct has to be very, very bad to be “extreme and outrageous” enough for an intentional infliction claim. But courts are finding that more severe types of workplace harassment qualify.

The “severe emotional distress” part usually requires more than just being upset or hurt: The plaintiff usually has to suffer from some sort of psychological or physical condition as a result of the conduct. But the condition doesn’t have to be permanent.

Trap No. 5: Negligent Infliction of Emotional Distress. Negligent infliction occurs when the employer’s negligent conduct causes an employee to suffer severe emotional distress. Maybe an employer doesn’t pay attention to an employee who is bullying her co-workers. The co-workers may have a valid claim against the bully for intentional infliction (because she knew what she was doing), and against the employer for negligent infliction (because it knew or should have known what the bully was doing, and failed to stop it). 

Trap No. 6: Negligent Hiring, Retention, or Supervision. Let’s say Harvey’s pre-employment reference check shows that he was fired from a previous job for sexual harassment. The CEO hires him anyway because he’s very talented and seems like a good guy, plus the company is in one of those less-regulated red states. After coming on board, Harvey sexually assaults his assistant, Judy. Judy fights him off and reports his conduct to Human Resources, which recommends firing Harvey. But the CEO says no because Harvey is so talented and such a good guy, plus the company is in one of those less-regulated red states.

Instead, the CEO tells Harvey’s colleague, Phil, to keep an eye on Harvey. Phil has good intentions, but he gets busy with his own responsibilities and gradually stops monitoring Harvey. Then Harvey sexually assaults Veronica, Phil’s assistant.

Both Judy and Veronica can sue the company for negligent hiring because the CEO hired Harvey after knowing about his prior record of sexual harassment. Veronica can sue for negligent retention because the company kept Harvey on after having reason to believe that he had sexually assaulted Judy. (Judy might also be able to sue for negligent retention because the company retained Harvey after negligently hiring him.) And Veronica can also sue for negligent supervision because nobody kept an eye on Harvey to prevent him from striking again.   

Bonus Trap No. 7: Ratification. With all of the “intentional” claims (assault and battery, defamation, false imprisonment, and intentional infliction) the employer can be legally responsible for its employees’ bad acts even if the employer didn’t authorize the acts and didn’t know they had occurred at the time. Once the employer learns of the employee’s tortious conduct, it can “ratify” that conduct by affirmatively approving of it (“Way to beat up that gay co-worker, buddy!”), OR by inaction — for example, by failing to discipline or terminate the guilty employee. 

Bonus No. 8: Protections for gun owners. So far, we’ve been talking about tort claims that often come up in employment litigation. But there is also one area where “red” states are more regulated than many “blue” states, and that’s in the area of gun owner rights. Many states in the South and West (and a handful of others) have legal protections for employees with permits who keep firearms or ammo in locked vehicles parked on company premises. You can’t fire ’em. (The employees, I mean.) Some states even let employees take firearms out of their vehicles long enough to stow them in vehicle trunks or gun cases for the work day. 

Although all of these laws allow employers to prohibit weapons inside their buildings, many require employers to post legal notices stating that weapons in the buildings are prohibited even if the employee has a permit.

Well, that’s my list. I didn’t even include wrongful discharge because that one was so obvious. If you’re an employer in a red state, I hope you feel the love now. ♥

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.