©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 103 negligent infliction of emotional distress, notwithstanding the workers’ compensation act, where the tort claim stems from conduct (such as FEHA violations) alleged to violate public policy.222 California courts have reasoned that the employer’s tortious conduct was not one of the “normal risks of employment” covered by the workers’ compensation act.223 In recent years, however, a moderating trend of authority has limited these kinds of tort actions, recognizing that employer misconduct in connection with normal employment decisions is within the compensation bargain, even if the misconduct was arguably outrageous and intended to cause emotional harm.224 It still remains the case, though, that some California courts permit intentional tort claims to proceed against employers even though they arise out of employment.225 A 2017 Court of Appeal decision permitted an employee to pursue a claim for intentional infliction of emotional distress for conduct that was also retaliatory under FEHA.226 This decision reverted to a prior, discredited view that conduct violating FEHA necessarily “falls outside the compensation bargain” and thus can be subject to an IIED claim.227 This decision may be a classic case of bad facts making bad law. The defendant supervisor, knowing that the plaintiff was supporting another employee complaining of discriminatory conduct, ostracized the plaintiff in the workplace, encouraged her to lie to investigators, pursued her at home and in the office to see if she did so, and verbally and physically attacked her after she disobeyed.228 Power press exception. A statutory exception to workers’ compensation exclusivity is the “power press exception,” which benefits employees injured by their employer’s knowing removal of—or failure to install—a point-of-operation guard on a power press when required by the manufacturer.229 In a 2020 case, the Court of Appeal applied this exception to reinstate the lawsuit of a machine operator who had injured her hand while she was operating a power press without a protective guard.230 Her lawsuit invoked the “power press exception” to workers’ compensation exclusivity.231 The trial court granted summary judgment to the employer, which had neither removed nor failed to install a required protective guard on its power press, which the employer had bought, used, from another manufacturer.232 But the Court of Appeal reversed because of triable issues as to (1) whether the instruction manual for the power press put the employer on notice that protective guards were required and (2) whether the employer knowingly disregarded that directive.233 Emotional distress from negligent immigration processing did not arise out of and in the course of employment. In 2020 the Court of Appeal upheld a jury award for a couple—a British citizen business analyst and his wife—who suffered over $2 million in emotional distress damages because his employer negligently failed to obtain papers authorizing him to continue his work in the United States.234 The employer had agreed to sponsor him for a green card, but application delays caused him and his family to move back to England, where his employment was terminated when his visa expired.235 He successfully alleged that he would have kept his job but for the employer’s breach of its assumed duty of due care.236 On appeal, the employer argued that workers’ compensation provided the exclusive remedy for emotional injury and distress, but the Court of Appeal disagreed.237 The emotional injuries did not arise out of the business analyst’s job-related duties or responsibilities, and the sponsorship of the green card was neither a condition of employment nor a form of pay.238 Nor was the negligent handling of the process an inherent risk of employment.239 5.7.2 Exclusive statutory remedies—not In many states, if a statute forbids conduct and provides a remedy for a violation, then the statutory remedy is exclusive for that conduct. In California it’s different. For example, an employee alleging age discrimination may sue for wrongful termination under the public policy against age discrimination established by FEHA, without complying with FEHA’s administrative requirements (that is, the employee may bring a tort claim based on the public policy expressed in an antidiscrimination statute, independent of a claim brought under the antidiscrimination statute itself).240
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