California Workers Compensation Act Does Not Provide the Sole and Exclusive Remedy for Plaintiff’s Emotional Distress Claim


            The exclusivity provision of the Workers’ Compensation Act preempts civil actions for intentional torts when the employer’s contested conduct is “a normal part of the employment relationship, such as demotions, promotions, criticism of work practices . . .” Cole v. Fair Oaks Fire Protection Dist., 43 Cal.3d 148 at 160 (1987). Plaintiff’s intentional infliction of emotional distress claim is largely predicated, however, on actions that do not qualify as a “normal part of the employment relationship,” namely the defamatory statement that Mr. Ritter made about Plaintiff. Defamatory statements that have no other purpose than to damage an employee’s reputation are not a “normal part of the employment relationship.” As such, they are not a risk of employment “within the exclusivity provision of the Workers’ Compensation Act.” Davaris v. Cubaleski, 12 Cal.App.4th 1583, 1591 (1993). Accordingly, Plaintiff’s intentional infliction of emotional distress claim, to the extent that it involves a claim of malicious defamation, falls outside the exclusivity provision of the Workers’ Compensation Act.

            This is especially apparent given that some of the actions upon which the claims is based, such as the contested statement, occurred after the termination of Plaintiff’s employment. Coverage by the Workers’ Compensation Act generally ends upon the termination of employment. But see Gates v. Trans Video Corp., 93 Cal.App.3d 196, 202 (1979) (noting that coverage may extend where an employee is injured while either picking up his final paycheck, leaving the job site after being fired, or gathering up tools immediately after termination but prior to departure from the premises.) Certainly, it cannot extend to cover damages that occur after the passage of a significant amount of time, such as in the present case.

            In sum, Plaintiff’s claim intentional infliction of emotional distress claim is not preempted by the exclusivity provision of the Workers’ Compensation Act because many of the actions upon which the claim occurred after the termination of his employment relationship with JACO and were not a normal part of the employment relationship. See Davaris, 12 Cal.App.4th at 1591.