Employer Misconduct


Exclusivity Rule

In general, the workers' compensation system is the exclusive remedy for an employee who has suffered an on-the-job injury. The employee is prohibited from being an action outside the workers' compensation realm in exchange for relief from the burden of proving fault. However, certain employer misconduct can act as an exception to the exclusivity rule, providing the employee with an opportunity to seek a common-law remedy.

Intentional Torts

In a number of states, an intentional tort against an employee by his employer constitutes a ground for bringing a common-law action for damages. The intentional tort must be committed by the employer personally or the employer's alter ego, as opposed to being committed by an agent of the employer. Acts committed against an employee by a co-employee, even though such co-employee occupies a management or supervisory position, are not attributed to the employer for purposes of bringing an action outside workers' compensation. The exclusivity exception for intentional torts is not extended to federal employees who are covered by the Federal Employment Compensation Act.

In some instances, the exclusivity rule has been set aside for the tort of false imprisonment. Generally, the matter turns on the relation of the injuries incurred to the injuries covered by workers' compensation. The restraint of a person's liberty or mental distress at being held against his will does not necessarily lead to an injury that renders an employee unable to work; thus, the connection to workers' compensation is unlikely. However, questions of the propriety of abdicating the exclusivity rule may come into play where the mental distress has risen to such a degree that it impairs the employee's ability to function and, consequently, earn a living.

Like false imprisonment, the torts of defamation and malicious prosecution do not normally lead to physical injury that would preclude an employee from working. Thus, the essence of workers' compensation is not triggered. So too, though, like false imprisonment, there may be instances where such torts have manifested themselves to such a degree that physical injury to the employee results leaving a question whether workers' compensation benefits are the employee's sole remedy.


There is generally no exception to the exclusivity rule for the negligent acts of a corporate employer, even if such negligence results in the employee being assaulted by another. Workers' compensation remains the sole remedy even though the employer engaged in negligent hiring or negligent supervision.