Tortious Discharge

A final wrongful-discharge theory is that a particular discharge was "tortious." A "tort" is probably best defined as a type of conduct legally considered to be wrongful. Tortious discharge may have occurred where an employer discharges an employee with a specific intent to harm the employee or where the employer's conduct toward the employee is intentional and outrageous, is intentional infliction of severe emotional distress, or constitutes fraud. The employer violated a duty he owes to the employee and it is not based on a contract.

Example: An employer physically beats up the employee then fires him for being unable to perform his work.

The main benefit of being able to pursue a tortuous-discharge claim is that it entitles the employee to more than contract or compensatory damages, which are limited to replacing what was lost. The remedy for a tortious discharge could also include punitive damages, which are damages intended to punish a defendant employer, not just compensate an employee for what he or she lost by being discharged.

Despite the difficulties that employees may have in successfully pursing wrongful-discharge claims in many states, employers cannot afford to ignore policies and situations at their workplaces that can unnecessarily give rise to such claims. Managers and supervisors should be careful that their written and verbal communications to at-will employees cannot later be interpreted as legally enforceable promises.

Example: A promise that the employee will always have a job as long as he or she receives satisfactory performance appraisals.

Worker Adjustment and Retraining Notification Act (WARN)

Along with the exception to the at-will doctrine discussed above the WARN Act requires employers to provide written notice of least 60 calendar days in advance of covered plant closing and mass layoffs. However, the WARN notice only applies to business with 100 or more full-time workers (not counting workers who have less than 6 months on the job and workers who work fewer than 20 hours per week) is laying off at least 50 people at a single site of employment, or employes 100 or more workers who work at least a combined 4,000 hours per week.

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Lesson 02 Assignment

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