An “intentional interference with contract” in the employment context occurs when the employer interferes with a contract between the worker and a third party. The elements of intentional interference with contract are the following: (1) existence of a contract; (2) the tortfeasor’s (in this context, the employer’s) knowledge of the contract; (3) intentional procurement of its breach; and (4) resultant damages. See Sorrells v. Garfinkel’s, 565 A.2d 285, 289 (D.C. 1989).
The alleged contract must be more explicit than just the expectation of continued employment, because the courts do not consider such an expectation a tangible contract. See Dale v. Thomason, 962 F. Supp. 181, 184 (D.D.C. 1997). It is equally important to note that the alleged “interferer” must not be a party to the contract interfered with; therefore, an employee of the company with whom the plaintiff has the contract cannot be liable for intentional interference with contract, because that employee is an agent of one of the parties to the contract. See Press v. Howard Univ., 540 A.2d 733, 736 (D.C. 1988).
A similar cause of action may lie for intentional interference with business expectations. The D.C. Court of Appeals held in Carr v. Brown, 395 A.2d 79, 84 (D.C. 1978), “business expectancies, not grounded on present contractual relationships but which are commercially reasonable to anticipate, are considered to be property, and therefore protected from unjustified interference.” Among those expectancies is “the prospect of obtaining employment or employees, or the opportunity of obtaining customers.” Id. This tort might arise in the employment context when an employer, for example, interferes with an employee’s ability to get a new job.
To sustain a claim for intentional interference with business relations, the worker needs to prove an “expectancy” that is “commercially reasonable” to anticipate. Be warned, however, that although there is authority to support this cause of action, courts are nonetheless reluctant to entertain it. This is a claim best brought in conjunction with other causes of action.
Under D.C. law, the statute of limitations to bring an interference claim is three years. See D.C. Code § 12-301(8) (2001).
Most people do not ordinarily think about “defamation” in connection with the relations between employer and employee. Defamation principles, however, have become increasingly important on the job. According to one commentator, more than 40 percent of the reported defamation cases relate to the workplace.[111]
Defamation encompasses both libel (written defamation) and slander (spoken defamation), and the elements are as follows: (1) the statement is false; (2) it was defamatory (injurious to the worker’s reputation); (3) the statement was published (uttered, written, etc.) to a third party by the defendant with some degree of fault; and (4) the plaintiff was injured. See Armstrong v. Thompson, 80 A.3d 177, 183 (D.C. 2013);Vereen v. Clayborne, 623 A.2d 1190, 1195 (D.C. 1993).
A statement is considered to be defamatory if it could injure a worker in her trade, profession, or community standing. See Howard Univ. v. Best, 484 A.2d 958, 989 (D.C. 1984). Courts in this jurisdiction apply a high standard to determine if a statement is defamatory; it must be more than unpleasant or offensive, and must make the plaintiff seem “odious, infamous, or ridiculous.” Id.
The statute of limitations for a defamation claim is only one year under D.C. law. See D.C. Code § 12-301(4). Defamation occurs at the time of publication, and its statute of limitations begins to run from that date. See Foretich v. Glamour, 741 F. Supp. 247, 252 (D.D.C. 1990). Because the statute of limitations is shorter here than with most torts, claimants need to act quickly in order to preserve their rights.
[111] Duffy, Big Brother in the Workplace: Privacy Rights Versus Employer Needs, 9 Indus. Rel. L. J. 30, 36 (1987).
The most obvious defense to defamation is that the statement uttered was true or substantially true. Courts generally discount minor inaccuracies in the statement so long as “the substance, the gist, the sting” of the statement is justified by fact. Moldea v. New York Times Co., 22 F.3d 310, 318 (D.C. Cir. 1994).
Opinion is also a defense to defamation. In other words, if the statement is merely the defendant’s opinion rather than one intended to be—or capable of being—objectively verified, then the defamation claim will not survive. Rosen v. American Israel Pub. Affairs Comm., Inc., 41 A.3d 1250, 1255 (D.C. 2012) (affirming trial court’s ruling that defendant’s statement that the plaintiff did not comply with company “standards” was not objectively verifiable because “standards” can have multiple meanings, not only the arguably verifiable meaning the plaintiff suggested); McClure v. American Family Mut. Ins. Co., 223 F.3d 845, 857 (8th Cir. 2000) (affirming district court ruling that statement about plaintiff’s conduct being “prejudicial to the company” could not be proved false, and therefore was not defamatory).
There are also two common privileges that apply to the tort of defamation. The first is consent and the second is the common interest privilege.
Consent is established if the defendant proves that (1) there was express or implied consent to the publication; (2) the statement was relevant to the purpose for which consent was given; and (3) the publication was limited to those with a legitimate interest in its content. See Farrington v. Bureau of Nat’l Affairs, 596 A.2d 58 (D.C. 1991).
The common interest privilege is a qualified one, most frequently used in the context of employment references and performance evaluations. If a defendant can show that their statements were privileged, that means that the statement in question is not subject to disclosure and cannot be asked about in testimony. This privilege has three elements: (1) the statement is made in good faith; (2) by a person who reasonably believes that she has a legitimate interest in making the statement; (3) to a person with a similarly legitimate interest in hearing it. See Millstein v. Henske, 722 A.2d 850, 856 (D.C. 1999) (finding the privilege applicable in the performance evaluation context); Ziemkiewicz v. R+L Carriers, Inc., 996 F. Supp. 2d 378 (D. Md. 2014) (discussing that a former employer’s statement to a prospective employer reporting the former employee had refused to take a required drug tests was privileged); Montgomery Cnty. v. Fones, No. 1026, 2019 Md. App. LEXIS 214, at *42 (App. Mar. 14, 2019) (holding that the qualified privilege “applies when those involved in a situation or circumstance share an interest and are, in serving that interest, entitled to know the facts”).
This privilege can be overcome if a plaintiff can prove that the statements were made with malice. See, e.g., Columbia First Bank v. Ferguson, 665 A.2d. 650, 656 (D.C. 1995) (finding that the plaintiff did not make a sufficient showing of malice to overcome qualified privilege); see also Eslami v. Glob. One Communs., 48 Va. Cir. 17, 24 (Cir. Ct. 1999) (defining malicious behavior as behavior “actuated by motives of personal spite or ill will, independent of the occasion on which the communication was made”) (quoting Smalls v. Wright, 241 Va. 52, 55 (1991)); Blodgett v. Univ. Club, 930 A.2d 210, 224 (D.C. 2007).
Intentional infliction of emotional distress is a popular claim for plaintiffs to bring in employment-related cases. Because it is a tort, a plaintiff can receive punitive damages for this claim, and such damages are not subject to any statutory caps. However, courts are very skeptical about intentional infliction of emotional distress claims and plaintiffs rarely prevail on them, even in the most seemingly egregious circumstances. Thus, an attorney should bring this claim only in particularly outrageous circumstances.
In order to set forth a claim of intentional infliction of emotional distress in D.C., a claimant must allege (1) extreme and outrageous conduct that (2) intentionally or recklessly caused (3) severe emotional distress to another. See Cooke-Seals v. District of Columbia, 973 F. Supp. 184, 188 (D.D.C. 1997). The plaintiff must demonstrate that the employer’s actions were “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C. 1982).
Courts have held that an action by an employer that violates public policy may qualify as intentional infliction of emotional distress. See Howard Univ. v. Best, 484 A.2d 958, 986 (D.C. App. 1984) (violation of D.C. Human Rights Act.). Moreover, employers are held to heightened standards of behavior when they have employees “who it is reasonable to assume are particularly susceptible to emotional distress.” Drejza v. Vaccaro, 650 A.2d 1308, 1313 (D.C. App. 1994) (refusing to dismiss claim by rape victim against police interrogator). In such a situation,
“The extreme and outrageous character of the conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know.”
Id., quoting Restatement (Second) of Torts, § 46, comment (f).
As noted earlier, courts in this jurisdiction are extremely wary of emotional distress claims in the employment context. See, e.g. Cooke-Seals v. District of Columbia, 973 F. Supp. 184, 188-89 (D.D.C. 1997) (dismissing emotional distress claim based on allegations that employee was subjected to “unmeritorious investigation” and “negative and false employment references”).
The statute of limitations to bring this claim is three years under D.C. law. See D.C. Code § 12-301(8).
False imprisonment is the restraint of a person’s physical liberty by another without consent or legal justification. See Faniel v. Chesapeake & Potomac Tel. Co. of Md., 404 A.2d 147, 150 (D.C. 1979). The essential elements of the tort are (1) the detention or restraint of one against his will, within boundaries fixed by the defendant, and (2) the unlawfulness of the restraint. Id.; see also Tocker v. Great Atlantic & Pacific Tea Company, D.C. App., 190 A.2d 822, 824 (1963).
This claim is most frequently brought in the context of investigations and interviews of employees. To meet the requirements of false imprisonment, [t]he evidence must establish a restraint against the plaintiff’s will, as where she yields to force, to the threat of force or to the assertion of authority.” Faniel, 404 A.2d at 151-52. That said, fear of losing one’s job does not mean that the behavior was induced. See, e.g., PROSSER, TORTS, supra § 11, at 106; Moen v. Las Vegas International Hotel, Inc., 90 Nev. 176, 521 P.2d 370, 371 (1974).
The statute of limitations to bring this claim is only one year under D.C. law. See D.C. Code § 12-301(4) (2001).
An employer can be held liable for negligently hiring an incompetent or unfit employee if the plaintiff can show that the employer knew or should have known that another worker had a propensity to commit some sort of job-related misconduct. See Moseley v. Second New St. Paul Baptist Church, 534 A.2d 346 (D.C. 1987).
Similarly, if, during the course of employment, an employer becomes aware of a worker’s unfitness and fails to take any action to correct the problem, the employer can be held liable for negligent supervision. See Daka, Inc. v. McCrae, 2003 D.C. App. LEXIS 752 (D.C. 2003) (affirming jury verdict in plaintiff’s favor on negligent supervision claim where plaintiff provided evidence to his employer over several months that he was being subjected to sexual harassment). A plaintiff must establish that the employer was negligent or reckless (1) in giving ambiguous or improper orders, or (2) in supervising activities of its employees. See Tarpeh-Doe v. United States, 28 F.3d 120, 123 (D.C. Cir. 1994).
The statute of limitations to bring this claim is three years under D.C. law. See D.C. Code § 12-301(8) (2001).
“Public disclosure of private facts,” also known as “unreasonable publicity,” is a recognized claim of tort liability against an employer. Public disclosure of private facts occurs when an employer discloses information concerning the private life of another (in this context, an employee) that would be highly offensive to a reasonable person and is not of legitimate concern to the public. Restatement (Second) of Torts, § 652D. A situation involving this tort usually arises when an employer uses information about the employee or applicant received during the job application, screening, orientation, or medical examination process and maintained in the personnel record.
The disclosure must also concern genuinely private information, be sufficiently widespread, and unauthorized. For example, to be genuinely private the disclosure of details of a separation agreement may not be actionable, whereas disclosing information about an employee’s psychiatric evaluation may be actionable. See Wells v. Thomas, 569 F. Supp. 426, 437 (E.D. Pa. 1983); Wagner v. City of Holyoke, 404 F.3d 504 (1st Cir. 2005).
Before filing a tort claim against the D.C. government, the worker must notify the Mayor in writing within six months of the injury. See D.C. Code § 12-309. The written notice must include the approximate time, place, cause, and circumstances of the injury or damage. Notice of claim letters must be received by the Office of Risk Management, and will be accepted on behalf of the Mayor.
The mailing address for claims is:
D.C. Office of Risk Management
One Judiciary Square
441 4th Street, NW, Suite 800 South
Washington, D.C. 20001
(202) 727-8600
Claims filing instructions and forms can be found at: http://orm.dc.gov/service/tort-liability-claim.
This requirement is only applicable for claims against the District of Columbia and does not affect claims against individual tortfesors sued in their individual capacities. George v. Dade, 769 A.2d 760 (D.C. 2001). This requirement does not apply to any claims brought under federal law, the D.C. Human Rights Act, or the D.C. Whistleblower Protection Act. D.C. Code § 12-309(b).
Maryland recognizes the same torts as discussed above. In addition, Maryland recognizes claims for fraudulent misrepresentation and deceit and negligent misrepresentation. A thorough discussion of these torts is beyond the scope of this manual, but they could be applicable. See Miller v. Fairchild Indus., 629 A.2d 1293, 1302 (Md. App. 1993) and Lubore v. RPM Assocs., Inc., 674 A.2d 547, 555 (Md. App. 1996).
Virginia recognizes the same torts as the District of Columbia. Advocates should note, however, that as a general rule, Virginia law is less protective of the worker than the District of Columbia and Maryland.
In addition, under Virginia law, the statute of limitations begins when the cause of action accrues, not when the damage has been sustained. See VA. Code Ann. § 8.01-230; Owens v. Combustion Engineering, 279 F. Supp. 257 (1967).