negligent infliction of emotional distress

A lot has been made of the recent district court decision on legal job protections for qualifying medical marijuana patients.

But the decision has another piece that has been overlooked and which may cause employers some heartburn as well.

The “Negligent Infliction of Emotional Distress” cause of action has been on life support for the last decade or so as courts have limited its applicability for claims arising in the workplace.

Indeed, the Connecticut Supreme Court held back in 2002 that a claim for negligent infliction of emotional distress cannot arise from conduct occurring in an ongoing employment relationship, as distinguished from conduct occurring in the termination of employment.

But what should happen to claims by job applicants that allege that rescinded job offers have caused emotional distress?

The recent decision by Judge Meyer allows that claim to continue and denied an employer’s motion to dismiss.

It found that the allegation of the complaint — and specifically, that the employer knew that plaintiff suffered from post-traumatic stress disorder (PTSD) and then waited to rescind her job offer until one day before she was scheduled to begin work (and after she had already left her prior job), was sufficient to establish a possible claim. The allegations of the complaint were that such actions caused plaintiff to experience severe emotional distress, including anxiety, sleeplessness, and loss of appetite.

The Court, in its ruling, analyzed the decisions in Connecticut in the last 15 years and found that “Connecticut courts have not squarely decided whether a rescinded job offer could serve as the basis for a negligent infliction of emotional distress claim”:

The practical,workplace-related reasons … for precluding a claim for negligent infliction of emotional distress on the basis of events occurring in an ongoing employment relationship do not apply in the context of an employer who rescinds a job offer before the prospective employee can begin work. … Because the withdrawal of a job offer is more akin to termination than to conduct occurring in an ongoing employment relationship, it seems consistent … that a claim for negligent infliction of emotional distress could arise from the withdrawal of a job offer.

Although the decision itself shouldn’t necessarily change how employers manage their job offers (or withdrawals of job offers), it is a reminder to treat job applicants with some care.  If an employer does need to withdraw the job offer, it should be done in a way to minimize the harm to the applicant.

The worry, of course, with the court’s decision is that there are going to be cases that allege that the mere withdrawal of the job offer is sufficient to state a claim; the court’s decision doesn’t go that far and it seems that the plaintiff’s allegation of PTSD was a significant factor in allowing the claim to proceed.

But employers who face such claims in the lawsuit should be sure to review the circumstances to see where on the spectrum the particular claim falls.

When the Connecticut Supreme Court came out with a decision nearly ten years ago that said that negligent infliction of emotional distress claims in the workplace were only viable when they occur during the termination process itself, it was the beginning of the end for these types of amorphous claims.  

The case, Perodeau v. City of Hartford is one that I touched on in an August 2010 post.  

A recent federal district court decision in Connecticut reinforces the broad scope of the Perodeau decision by dismissing such claims in various contexts.  

The case, Tomby v. Community Renewal Team doesn’t break new ground. But  it does reinforce the fact that these types of susceptible to a motion to dismiss.  Even if the employer’s stated reason for terminating the employee is "pretextual" or false, the court said that is not enough to support an NIED claim.  

For employers faced with "kitchen-sink" complaints in federal court, this case provides ample support for lightening the load and filing that motion to dismiss.

In light of the horrific workplace shootings in Connecticut earlier this month, I’ve heard people wonder about various steps an employer can take in anticipation of a termination meeting. One question raised is whether it is ever appropriate to have the police nearby or available during a termination meeting.  Or, alternatively, can you have security escort the fired employee from the premises. 

Interestingly enough, the Connecticut Supreme Court has chimed in on this subject in some cases before.

In 1997, the Court in Parsons v. United Technologies Corp., held that "it is not patently unreasonable for an employer to remove a discharged employee from its premises under a security escort."  In so ruling, the court rejected a negligent infliction of emotional distress claim by the employee that the termination was so unreasonable as to warrant a claim for damages.

Similarly, in 2000, the Court in Appleton v. Board of Education, found that being escorted out of the building by police (after being called by the employer) was also not enough to raise a claim against the employer.  

Both of those cases cite a notable District Court case out of South Carolina, Toth v. Square D. Co., which also rejected a claim by the employees for "outrage" when the employer escorted the terminated employee out of the building in front of his peers.

That’s not to say that termination meetings are exempt from possible claims. The Connecticut Supreme Court in 2002 (Perodeau v. Hartford) explicitly said that negligent infliction of emotional distress claims in the workplace can still arise out of a termination meeting. Thus, if the meeting is held in such a way as to be deemed to be "outrageous", it could subject the employer to liability.  But it is rate that a fired employee can actually make a legitimate claim.

What are the lessons to take away from these cases?

  • First, don’t overreact. Most cases do not warrant having security on the premises. 
  • But, in some rare circumstances, having a police officer present on the premises during a termination meeting may be warranted. (Most police departments will offer to have an officer sit in the parking lot if asked by the employer.) 
  • If the employer is truly concerned, it may also be allowable to have a security officer or even police nearby or outside the room ready to escort the employee out immediately upon termination.

These situations require a deft touch and particularized legal advice to ensure that the meetings don’t turn into a circus.