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 Choose one of the common workplace torts (defamation) discussed in the chapter readings for this unit (except genetic testing). Prepare a specific policy for the employer that balances the employer and employees’ rights. Give the rationale and support for your policy. This assignment should be a minimum of one page in length. You are required to use at least your textbook as source material for your response. All sources used, including the textbook, must be referenced; paraphrased and quoted material must have accompanying citations per APA guidelines. 

BHR 3565, Employment Law 1

Course Learning Outcomes for Unit II

Upon completion of this unit, students should be able to:

1. Differentiate the relationship statuses between the employer, employee, and independent contractor.
1.1 Prepare a policy that balances employer and employees’ rights.

Course/Unit
Learning Outcomes

Learning Activity

1
Unit Lesson
Chapter 3, 4, and 5

1.1 Unit II Essay

Reading Assignment

Chapter 3:
Commonly Committed Workplace Torts

Chapter 4:
Employee Privacy Rights in the 21st Century

Chapter 5:
The Global Perspective: International Employment Law and American Immigration Policy

Unit Lesson

Tort

Tort is a legal term that means a civil wrongful act on the part of someone. It is different from a contract. Both,
however, may lead to civil liability or potentially a civil case. The person committing a tort is called a
tortfeasor. Generally, people think that they can sue anyone for anything. There are certain restrictions to
bringing a tortious or civil claim. In the employer-employee relationship, if a person is injured on the job, most
states allow for recovery under workers’ compensation. Workers’ compensation was enacted in most states to
give injured employees an immediate remedy for medical treatment and care. Many times, there is a
settlement at the end of a workers’ compensation action for future care, loss of the ability to work, or loss or
injury to a part of the body. When there is coverage under workers’ compensation, a person cannot bring an
action against his or her employer. To bring a civil action under a liability claim takes many years. The
advantage of workers’ compensation is that the employee gets immediate medical attention rather than
waiting for a lawsuit that might end years later (Cihon & Castagnera, 2017). It also allows the employee to get
immediate rehabilitation and return to the workplace.

An injured employee may try to claim that he or she is an independent contractor to try to fall under civil law
and bring a tort claim. Another option is for the injured party to sue a third person that is not the employer. An
example would be if the employee lost a limb on a piece of manufacturing equipment, the employee can sue
the manufacturer of the equipment alleging that the equipment did not have the correct safety guards to
protect against loss of limb. This would be a product liability case.

The advantage of a tort claim is that the monetary amount may be much greater than a workers’
compensation settlement. To bring an action in civil court one must establish first that he or she is an
independent contractor. There are four elements that are necessary to win in an action:

UNIT II STUDY GUIDE

Workplace Torts and Privacy Rights

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UNIT x STUDY GUIDE

Title

 duty,

 breach,

 damages, and

 proximate cause (Cihon & Castagnera, 2017).

An example of the four elements is included in the scenario below. An independent contractor is injured at a
corporation and is bringing a civil action:

The employer hires an independent contractor to plow the driveway and parking areas of his plant. The
contractor arrives after a heavy snowfall and begins to plow without having seen the parking area before.
There is a large area in the lot where there is a hole. The contractor hits the hole, causing his truck to tip. The
contractor suffers an injury to his head and subsequent brain damage. The employer owner of the business
has a duty to provide a safe environment and premises. He breached that duty by not making the contractor
aware of the hole or filling the hole before someone was hurt. The independent contractor plowing the
driveway was injured or damaged. If there had not been a breach of the duty, the contractor would not have
suffered the brain injury. The breach of the duty was the “but for” or the proximate cause of the injury. If you
substitute the words “but for,” it will help you decide what is the proximate cause.

Take the same scenario, and assume that the independent contractor did not suffer any damages. Could he
still bring a lawsuit? He could make a claim for damage to his vehicle if his vehicle was harmed; however, he
is missing one of the key elements: damages. He suffered no loss. If we take the case in another direction,
where five weeks later the claimant who is the truck driver is diagnosed with a brain tumor, we see a different
set of elements are lacking. The brain tumor is unrelated to the breach of the duty or it is not a proximate
cause of the breach of duty so the case again would fail in court.

There are several different types of torts. The most common in the area of employee-employer law is libel,
slander, or defamation of character. There are also these types of torts: tortious infliction of emotional
distress, tortious interference with a contract, retaliatory demotion or wrongful discharge, theft of trade
secrets, bodily injury, and invasion of privacy (Cihon & Castagnera, 2017).

Privacy

One of the relatively recent issues that has arisen in the employment relationship is the issue of privacy.
While employees have some expectation that they will have a certain amount of privacy, there are legitimate
reasons for the need for an employer to inquire into some areas that employees might consider private. For
instance, in hiring employees, employers sometimes require that potential employees allow the employer to
conduct a credit check and a background check.

Other invasion of employees’ privacy issues can arise once an employee has been hired. For instance,
employers often monitor employee telephone calls and email, and sometimes employers conduct surveillance
of employees and even search employee work areas.

Contract

Contractual law is an agreement between two or more persons. Contract law is enforceable as a binding legal
agreement and is a form of a civil law. There are certain elements that are necessary for a contract to be
legally binding. In order for a contract to be binding, there should be an offer, acceptance, and consideration.
Generally, contracts have to be signed in order to overcome what is called the statute of fraud. The offer and
acceptance may be called a meeting of the minds in which both people decide to enter into an agreement.
Consideration is a monetary value, and there must be mutual intent to be bound by the agreement.
Consideration is a legal term meaning that one party or both parties profit or benefit. Something is given and
then something is returned. Generally, the return may be in the form of money. A service may be given and
money is given in return for that service. In contract law, there may be an implied contract. If you do not have
a contract with an employer and you come to work, it is implied that you will work, and the employer will pay
you. If you do not do the work, you have breached an implied contract. Another example of an implied
contract is when a patient goes to a doctor’s office. The patient does not have a signed contract. If the patient
is examined by the doctor and then refuses to pay for the treatment, that is a breach of an implied contract.

Another area of contract law is capacity. A person must have the capacity to contract. In the law a person who
is under the age of 18, does not have the right to legally contract with another. There may be exceptions to

BHR 3565, Employment Law 3

UNIT x STUDY GUIDE
Title

this age in various states. A person who is incapacitated because of a mental disability also does not have the
right to enter into a contract or have a contract enforced against him or her. There are exceptions to these,
and one has to examine the case law and statutory state laws to determine if capacity applies.

Reference

Cihon, P. J., & Castagnera, J. O. (2017). Employment and labor law (9th ed.). Boston, MA: Cengage

Learning.

Suggested Reading

In order to access the following resources, click the links below.

Watch the short video linked below regarding workplace gossip. When does gossip cross the line into
defamation?

Lawinfo. (2013, August 12). Defamation and gossip in the workplace [Video file]. Retrieved from

https://youtu.be/AOJFXt9NhH0

Click here for the video transcript.

This video will help you distinguish protected health information (PHI) from other private information.

Darnall, K. (2014, January 19). What is protected health information [Video file]. Retrieved from

https://youtu.be/xqtP6otrLw8

Click here for the video transcript.

https://online.columbiasouthern.edu/CSU_Content/Courses/Business/BHR/BHR3565/16I/UnitII_DefamationandGossip_VideoTranscript

https://youtu.be/xqtP6otrLw8

https://online.columbiasouthern.edu/CSU_Content/Courses/Business/BHR/BHR3565/16I/UnitII_ProtectedHealthInformation_VideoTranscript