Understanding Workplace Torts in EPLI
While much of the complete EPLI exam guide focuses on statutory laws like Title VII or the ADA, a significant portion of liability arises from common law torts. A tort is a civil wrong, other than a breach of contract, for which the court provides a remedy in the form of damages.
In the context of Employment Practices Liability Insurance (EPLI), tort claims often accompany allegations of wrongful termination or discrimination. However, they can also stand alone. Candidates preparing for the specialty exam must distinguish between statutory violations (legislative acts) and torts (judicial precedents and common law). The most frequent workplace torts include defamation, invasion of privacy, and intentional infliction of emotional distress.
Defamation: Libel vs. Slander
| Feature | Libel | Slander |
|---|---|---|
| Form of Communication | Written or permanent (emails, memos, social media) | Oral or transitory (spoken words, gestures) |
| Presumption of Damages | Often presumed (Libel per se) | Often requires proof of special damages |
| Workplace Example | A false performance review shared via email | False rumors spread in the breakroom |
The Elements of a Defamation Claim
For an employee to successfully sue an employer for defamation, they must generally prove four specific elements. Understanding these is critical for adjusting claims and evaluating risk in practice EPLI questions.
- False Statement: The statement must be a fact, not an opinion. Truth is an absolute defense to defamation.
- Publication: The statement must be communicated to a third party. In a workplace, this could be a prospective employer or even other coworkers.
- Fault: The employer must have acted with at least negligence regarding the truth of the statement. If the employee is a public figure, they must prove 'actual malice.'
- Harm: The statement must cause injury to the individual's reputation or cause economic loss.
Defenses Against Workplace Tort Claims
Qualified Privilege and the Reference Check
One of the most important concepts for the EPLI exam is Qualified Privilege. This legal doctrine protects employers when they share information about an employee's performance, provided the information is shared in good faith and only with parties who have a legitimate 'need to know.'
Qualified privilege is commonly applied during:
- Internal performance evaluations.
- Disciplinary proceedings and investigations.
- Providing references to prospective employers.
Warning: This privilege is lost if the employer acts with malice—meaning they knew the information was false or acted with reckless disregard for the truth.
Compelled Self-Defamation
Invasion of Privacy in the Modern Workplace
Privacy torts are increasingly common as workplace surveillance and data collection expand. There are four main types of privacy torts, but three are most relevant to employment:
- Intrusion Upon Seclusion: Physically or electronically intruding into an employee's private affairs (e.g., searching a private locker without policy authorization or illegal wiretapping).
- Public Disclosure of Private Facts: Sharing highly offensive, private information (like medical records) with the public or a large group of people.
- False Light: Portraying an employee in a misleading or offensive way that attributes characteristics or beliefs they do not hold.
EPLI policies typically provide coverage for these claims, but exclusions may apply if the invasion was intentional and committed by high-level management with the intent to cause harm.