Colorado employees are increasingly asserting tort claims against employers, in addition to the traditional discrimination, retaliation, harassment and breach of contract claims. These tort theories are widely used to overcome statutory caps on recoverable damages, to enable employees to recover additional categories of damages (such as punitive damages or damages for emotional distress), to provide additional bases for employer or even individual supervisor liability, and to avoid removal of their claims to federal court. Employers can be blindsided by such claims, with devastating potential consequences.
These tort claims involve several potential theories of liability, including intentional infliction of emotional distress (also known as “outrageous conduct”), negligent infliction of emotional distress, wrongful discharge in violation of public policy, defamation, negligent misrepresentation, fraud, interference with contract or prospective financial advantage, invasion of privacy, assault and battery, malicious prosecution or abuse of process, assault and battery, promissory estoppel, and negligent hiring, training and retention. Business owners are all too frequently surprised to discover that they may be held liable for torts committed by their employees within the scope and course of their employment – even if the business owner did not expressly approve of or direct the conduct serving as the basis for the claim.
In the event they prevail, employees may recover typical tort damages, including their actual damages (such as for lost wages and benefits), damages for emotional distress, and even punitive damages in the event they prove that the employer’s agents acted with malice. The alleged damages in these cases are often in the hundreds of thousands of dollars.
Employees must bring these tort claims within relatively short time frames, which may be as short as one year. If they fail to file the claim within such a “statute of limitation,” the claim may be lost. Employers have multiple defenses to these claims, including laches, pre-emption, unclean hands, employee misconduct, contributory negligence, privilege, legal justification, and more. Employers may also have potential counterclaims against employees who have brought action against them.
Baird Quinn’s attorneys have successfully prosecuted and defended against employment tort claims. We have obtained impressive results for our clients – from the outright dismissal of claims brought against employers to large judgments and settlements obtained on behalf of employee clients.
We have an uncompromising commitment to obtaining the best possible results in prosecuting and defending against tort claims in the workplace. Please feel free to contact our labor and employment attorneys for consultation or assistance.