Category Archives: Torts

Defamation and Termination

The settlement of a recent case brought by an in-house attorney against his former employer highlights the importance of great care in any public statements about an employee’s termination.

The case involved a public statement made by the employer (specifically statements made to a regulatory group) that, arguably, portrayed the employee’s voluntary departure as being tied to alleged corporate wrongdoings.  The resulting public impression, at least as was contended by the former employee, was that the corporate wrongdoings ended with the employee’s departure.  The case was complicated by the complex rules of defamation law, such as presumptions of damages, degree of malice and the like, but it settled for a substantial sum and that’s the point for all employers – a former employee’s reputation needs to be protected against defamation.

Takeaway:  An employer needs to take care in any potentially harmful descriptions about the nature of the former employee’s departure in any statements to third persons or the termination may be followed by a defamation suit.

New Minnesota Expungement Law Protects Employers

An amendment to Minnesota’s laws concerning the expungement of criminal records is designed to help protect employers from claims based on the conduct of their employees.

Expungement is a process authorized by statute that allows an individual to seek to have records related to prior criminal convictions or charges sealed so that they are no longer accessible by the public. Expungement is only available in limited circumstances, such as after an individual has successfully completed a diversion program, has been exonerated, or if the individual was convicted of a low-level crime and has had no other convictions for several years. Expungement is not available for high-level crimes like murder, kidnapping, or criminal sexual conduct. See Minn. Stat. § 609A.02.

The new amendment to Minnesota’s expungement laws took effect on January 1, 2015, and protects employers by prohibiting expunged criminal records from being admitted into evidence in a civil case against an employer based on an employee’s conduct. The new provision states that:

Information relating to a criminal history record of an employee, former employee, or tenant that has been expunged before the occurrence of the act giving rise to the civil action may not be introduced as evidence in a civil action against a private employer or landlord or its employees or agents that is based on the conduct of the employee, former employee, or tenant.

Minn. Stat. § 609A.03, subd. 5(e).

Takeaway: The new amendment to Minnesota’s expungement laws will help protect employers against claims based on employee conduct, such as claims for negligent retention or claims based on respondeat superior liability.

Why You Probably Should Not Lie About Punching A Certain Former Governor/Professional Wrestler

A federal district court in Minnesota recently denied a motion for summary judgment seeking to dismiss a defamation claim brought by former Governor of Minnesota and professional wrestler, Jesse “The Body” Ventura.

In the lawsuit, Ventura alleges that he was defamed in a New York Times Bestseller written by former Navy Seal, Chris Kyle.  In Kyle’s autobiography, American Sniper, the Autobiography of the Most Lethal Sniper in U.S. Military History, Kyle described a physical altercation with Mr. Ventura — whom he refers to as “Scruffy Face” — in a subchapter entitled “Punching Out Scruffy Face.”  Kyle wrote that, after exchanging words with Ventura on an evening in 2006, “I laid him out.”  Although he did not name Ventura in the book, he later admitted in various media interviews that the “Scruffy Face” in question was indeed the Former Governor of Minnesota.

Kyle brought a motion for summary judgment seeking to dismiss Ventura’s defamation claim on the grounds that there were no genuine issues of material fact regarding whether:  (i) the account in the book was materially false; and (ii) whether the account in the book was written with “actual malice,” as required for a defamation claim against a public figure.

On March 19, 2014, the court denied Kyle’s motion for summary judgment, reasoning that Ventura provided sufficient evidence that the statements in “Punchy Out Scruffy Face” were false that a jury could find in his favor.  The effect of the court’s denial of the motion for summary judgment will be that, unless the case settles, Ventura’s defamation claim against Kyle will go to trial and be decided by a jury.

Takeaway:  Unless you’ve got solid proof, it’s probably not a good idea to claim that you “laid out” Jesse Ventura.  You may also want to avoid suggesting that Ventura has time to bleed.

What is Tortious Interference with Contract?

Tortious interference with contract is a legal claim that allows a party to a contract to sue a third-party who knowingly interferes with and causes a breach of a contract.  Under Minnesota law, a plaintiff must prove five elements to succeed on a claim for tortious interference with contract:

  1. The existence of a contract;
  2. The alleged wrongdoer’s knowledge of the contract;
  3. Intentional procurement of its breach;
  4. Without justification; and
  5. Damages.

See Kallok v. Medtronic, Inc., 573 N.W.2d 356, 362 (Minn. 1998).

With respect to employment law, tortious interference with contract claims often arise in the context of non-compete agreements.  If a competitor hires an individual subject to a non-compete agreement and employs him or her in a manner that violates the non-compete agreement, the former employer may be able to sue both the employee (for breach of contract) and the competitor (for tortious interference with contract).

Takeaways:  Tortious interference with contract claims can be important tools for employers who utilize non-compete or non-solicit agreements to prevent unfair competition.  When determining how to enforce a non-compete or non-solicit agreement, determining whether a tortious interference with contract claim is available should be a key consideration.  The potential of a claim for tortious interference with contract should also be considered when hiring an employee subject to a non-compete or non-solicit agreement.

Does Accusing a Former Employee of Blackmail and Extortion Constitute Defamation?

Not necessarily.  The U.S. District Court for the District of Minnesota recently dismissed a defamation claim that relied on accusations of blackmail and extortion in the widely publicized case of Michael Brodkorb v. State of Minnesota et al.

Michael Brodkorb formerly worked as the Communications Director for the Minnesota Senate Majority Caucus.  In December of 2011, the Secretary of the Senate, Cal Ludeman, fired Brodkorb after an extramarital affair was revealed between Brodkorb and then-Senate Majority Leader Amy Koch.  After his termination, Brodkorb threatened to sue the Minnesota Senate for gender discrimination and offered to engage in mediation of his claims.  Following that threat, Cal Ludeman released a press release that suggested Brodkorb was trying “to extort a payment from the Senate” and stated to a newspaper reporter that Brodkorb was attempting to “blackmail” the Senate.

Brodkorb subsequently filed a lawsuit alleging a number of different claims.  One of the claims was a claim for defamation based on the statements relating to alleged extortion and blackmail.  On February 13, 2013, the court granted the defendants’ motion to dismiss the defamation claim.

The court rejected Brodkorb’s argument that the terms extortion and blackmail were defamation per se because they allege criminal conduct.  The court explained that the terms extortion and blackmail have “broader non-legal” meanings and are often used colloquially.  The court found that Ludeman used the terms in the “generalized sense, and not as a label for punishable criminal offenses.”  In addition, the court held that because the statements were made in a “heated context,” they could not reasonably be interpreted to accuse Brodkorb of “engaging in the crimes of extortion and blackmail.”

The court also found that the statements could not be defamatory because they could not be proven true or false.  Instead, the court characterized the statements as “simply subjective statements of rhetoric and hyperbole.”  The court emphasized that a reasonable person would have understood the statements to be hyperbole given that they were made in the context of heated negotiations relating to Brodkorb’s threatened lawsuit.  Accordingly, the court held that the statements could not give rise to an actionable defamation claim.

Takeaway:  The Brodkorb case shows that, in the right context, referring to a former’s employee’s settlement demands as “extortion” or “blackmail” may not necessarily be defamation.  On the other hand, the defendants in the Brodkorb case could have avoided the defamation claim (and some legal fees) by being more cautious about their language.  For that reason, it is advisable for employers in most cases to avoid making statements about extortion and blackmail by their former employees – even if the statements may not result in actionable defamation.

Negligent Retention – When is Workplace Violence Reasonably Foreseeable?

Unfortunately, incidents of workplace violence are increasingly common.  One major risk for employers associated with workplace violence is the potential for a negligent retention claim.

Under Minnesota law, liability for negligent retention is “predicated on the negligence of an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others.”  See Bruchas v. Preventive Care, Inc., 553 N.W.2d 440 (Minn. Ct. App. 1996).

The case of Yunker v. Honeywell is instructive about what kind of evidence is necessary to establish that an employee’s violent actions were reasonably foreseeable by the employer.  496 N.W.2d 419 (Minn. Ct. App. 1993).  In Yunker, the court held that there was sufficient evidence that an employee’s murder of another employee while off-duty was reasonably foreseeable to the employer because:

While at the Golden Valley facility, Landin sexually harassed female employees and challenged a male coworker to fight.  After his transfer to St. Louis Park, Landin threatened to kill a coworker during an angry confrontation following a minor car accident.  In another employment incident, Landin was hostile and abusive toward a female coworker after problems developed in their friendship.  Landin’s specific focus on Nesser was demonstrated by several workplace outbursts occurring at the end of June, and on July 1 the words “one more day and you’re dead” were scratched on her locker door.

Landin’s troubled work history and the escalation of abusive behavior during the summer of 1988 relate directly to the foreseeability prong of duty.

Id., at 424.

Takeaways:  The Yunker case shows that an employee’s violent behaviors and threats towards other employees may be sufficient in certain circumstances to make violence towards co-workers reasonably foreseeable to an employer.  To avoid liability, employers who confront violent behaviors or threats by employees should be prepared to take action to prevent harm, if necessary.  What type of corrective actions may be necessary will likely depend on the circumstances of each case.  In some cases, discipline or termination of the employee may be sufficient.  In more severe cases, it may be necessary to call the police or take other security precautions.