7 Claims Jonathan Martin May Have Regarding Dolphins Bullying Under Florida Law

Now that America finally woke up and realized that workplace bullying is a serious issue, thanks to the Miami Dolphins situation with Jonathan Martin, who quit after the team refused to do anything after he complained about workplace bullying, I thought I'd share my thoughts on the situation from the perspective of a Florida employee-side lawyer.

As I've written before, there is no state in the nation that has passed any law against workplace bullying. We have zero tolerance for bullying in schools, but nothing to protect employees? What a giant waste of corporate resources and time, to deal with the fallout, morale problems, and loss of good people that bullies cause. It's time to pass a law.

In the meantime, I have some theories about what claims Mr. Martin might have under Florida law if/when he decides to sue over this matter. I recently wrote a piece for AOL Jobs called 5 Ways Your Workplace Bully May Be Breaking The Law (call me prescient - the piece came out less than 2 weeks before the incident) where I talked in general about potential claims employees might have relating to workplace bullying.

While I obviously don't know what really happened, there has been lots of press speculation and reporting on what really happened with Martin. I can only speculate on what claims he might have.

Here are four claims I think Martin might have against the Dolphins:

1. Breach of contract: Surely he has a contract. It must say something about his working conditions. These athletic contracts are huge. If the contract says the Dolphins must provide a safe working environment, it's a straight breach of contract case.
2. Race or age-based harassment: Bullies tend to target the weak and the different. If Mr. Martin was targeted due to his race or because he was "too young" as the reporting tends to speculate, then he might have a discrimination claim. While the Age Discrimination in Employment Act doesn't cover discrimination based on being too young, the Florida Civil Rights Act covers all kinds of age discrimination. Harassment cases require that you report the harassment and give management a chance to correct the situation, which it seems he did, and was told to punch the harasser, which he thankfully didn't do. The questions will be 1. whether it was so severe or so pervasive that it altered the terms and conditions of his employment and 2. whether it was so intolerable that no reasonable person would have stayed. Having quit, he'll have to show that he was constructively discharged, which is tough, but not impossible. It looks like the coaches might have actually encouraged the harassment. If so, the Dolphins may well be on the hook.
3. Assault/battery: If anything got physical and management knew about it, then the Dolphins might be on the hook.
4. Intentional infliction of emotional distress: This is the one I see in all the newspaper articles about what kind of claim he might have but, truthfully, these cases are very tough to win in Florida. He went to the hospital for emotional distress, so he might have some pretty significant damages if he can prove this claim.

I usually recommend against bringing claims against individuals because they're almost always uncollectable even if you win. That's probably not the case against a wealthy football player, so Mr. Martin may have claims against the individual or individuals involved.

Here are 3 claims he might have against his harasser(s):

1. Tortious interference: I wrote awhile back about using tortious interference claims against harassers. Maybe this would be a good situation for that. The question will be whether the harassers stepped outside the scope of their employment. If management really instructed them to do this, then the harassers might argue they were acting within the scope of their jobs.
2. Assault/battery: If it got physical, he can sue for whatever damages he suffered.
3. Intentional infliction of emotional distress: Again, tough in Florida but maybe if things got physical or extreme he could sue his harassers for this.

I'm interested to hear any new facts that come out on this. While I'm sad this happened to Mr. Martin, some good could come out of all this of we get some anti-bullying laws passed as a result. If even a big, tough football player can be devastated by bullying, imagine what ordinary mortals who experience bullying must go through.

So, what do you think? Any other legal theories? Should workplace bullying be made illegal?

Fake Job Offers, Phony Jobs and Employer Fraud

This question from Ask A Manager really struck a nerve for me:

Hi. I recently accepted a job offer via e-mail, handed in my notice with my current employers, a new e-mail then arrived stating my contract was being drawn up, then a few days later I receive a phone call retracting their job offer, what are my rights??? Please help.

You’d be surprised how often this happens. The mistake I see is that you gave notice before you got a signed contract. You shouldn’t give up your job unless your new offer is 100% final. That means contract signed if there is one, background check passed, and any contingencies have occurred.

It’s not unusual that people are duped into giving notice at their job, only to have the offer pulled or find out the job is nonexistent. Or maybe you’ve been lured into a job with promises of higher pay, better title, specific hours or location, and it turns out that the representations made to lure you in weren’t true. When this happens, you might have a case for fraud.

In order to claim fraud, the statement(s) must been false, and the company had to know they were false or be recklessly indifferent as to their truth or falsity. You must have relied on the false statements and changed your position. The company will probably claim that the person who made the representations believed them to be true at the time. Cases like this can require massive discovery, time and expense.

Another theory you might have to pursue against these unscrupulous employers is tortious interference with your employment relationship. I haven’t seen any cases attempting this type of claim, but it might be viable in your state. Basically, the theory would be that the phony employer interfered with your employment, knowing that you would lose your job, and that they were reckless or negligent in their behavior.

I’d be interested in hearing from other lawyers who have brought or defended this type of case to see what happened.

The sad truth is that, with at-will employment, you could work one day and they could decide you were a “poor performer” or “didn’t fit in.” Mostly, switching jobs is a high-risk activity. Be careful out there. Do your due diligence on the new employer. See if they make a habit of this type of behavior. Try to find out what kind of turnover they have. Speak to current or former employees if you can.

In my view, doing this to someone should be a crime. In this anti-employee environment, I suspect it won’t happen. Still, anyone who convinces someone to leave their job in this economy with pie in the sky promises that turn out to be phony deserves to spend some time behind bars.

Donna’s tips:

a.       Get that job offer in writing. Make sure you have everything you think is essential in it. If the recruiter told you that you’d only work Monday to Thursday and you need Fridays off for a class, either make sure they put it in writing or write them a letter or email confirming the information.

b.      If the job offer is contingent, don’t give notice unless all the contingencies have been met. If you have to pass a background check, wait until they tell you that you’ve passed, then confirm that information in writing. Tell them you’re relying on that information and will be giving notice at your current job. If you get a conditional offer and you need to discuss disability accommodations, get the accommodations agreed to before you quit your job.

c.       Don’t move your house without getting some guarantees that the job will last for a minimum period of time. It’s best to have a contract saying you can only be fired for cause if you’re uprooting your family.

Tortious Interference: Ammunition Against Workplace Bullies and Harassers?

            A new case in Florida is part of a growing trend where employees strike back against coworkers who bully or harass them at work. In Alexis v. Ventura, out of Florida’s 3d DCA, the court said it was error to dismiss a tortious interference claim against a supervisor.

            She alleged that her boss created a hostile environment motivated by a discriminatory intent against her. The court set out the elements of a tortious interference claim:

To state a claim for unlawful interference with an advantageous business

relationship, Alexis must allege the following elements:

1. The existence of a relationship between Alexis and her employer, under

which Alexis has legal rights;

2. Ventura’s knowledge of the relationship;

3. An intentional and unjustified interference with that relationship;

4. By a third party;

5. Resulting in damages to Alexis caused by the interference.

Sloan v. Sax, 505 So. 2d 526 (Fla. 3d DCA 1987).

The question on appeal was whether the supervisor was a “third party” for purposes of her claim. Normally, a supervisory or managerial employee is considered to be a party to the employment relationship. However, the court said:

There is a recognized exception to this general rule, as explained in O.E. Smith’s Sons, Inc., v. George, 545 So. 2d 298 (Fla. 1st DCA 1989):

For the interference to be unjustified, the defendant must be a third party, external to the business relationship. However, the privileged interference enjoyed by a party that is integral to the business relationship is not absolute. The privilege is divested when the defendant “acts solely with ulterior purposes and the advice is not in the principal’s best interest.”

Id. at 299 (quoting Sloan v. Sax, 505 So. 2d 526, 528 (Fla. 3d DCA 1987)).

            I thought this was an interesting case because it could provide extra ammunition to an employee who is a harassment or even a bullying victim. The problem with suing individuals, of course, is that they rarely are wealthy enough to pay off judgments of any amount. Still, where bullying and general harassment are legal, this type of suit might enable victimized employees to strike back.

            I checked it out and it looks like tortious interference claims have been allowed in some states but not others. Some states that seem to be allowing these claims (I’m sure my colleagues in these states will tell me if I’m wrong) include Massachussetts, Texas, Missouri and New York. In addition to the problems with suing the individuals, your company is always going to be a “party” to your employment relationship, so you won’t be able to tag your employer with this type of claim.

            Another downside I see to these claims is you have to claim the coworker or supervisor was acting outside the scope of their employment, which might mean a free pass from the employer if you’re also suing them. But if the company points to the individual and says they were working outside the scope of their employment, it might be wise to bring in the individual and let the jury decide which one is to blame.

            I’m always looking for ways to go after bullies, so this looks like a promising claim if it’s allowed in your state.