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Employee’s Termination As A Result of A Prior Employer’s Cease-And-Desist Letter Threatening A Lawsuit Over A Non-Compete Agreement Warrants Emotional Distress Damages

I. Introduction

An employee spends weeks or even months seeking-out that perfect job position.  Wages are negotiated, benefits are determined, and the employee commences to work at their dream job.  Then one day their employer calls them into the office to advise that it has received a “cease-and-desist” letter from a prior employer stating that the employee’s employment violates a non-compete agreement.  Further, the letter states that if the current employer does not terminate the employee, the prior employer will sue both the employee and the current employer.  The employee does not recall ever signing the non-compete, and regardless, it does not appear that the employee is in violation of any non-compete agreement by working for his current employer.  Yet, the employee’s current employer errs on the side of caution and terminates the employee because of the prior employer’s “cease-and-desist” letter. 

Understandably, the employee is upset.  How will the rent get paid?  How will groceries get put on the table?  What will family and friends think?  Even worst, how will prospect employer’s view such a short time of employment? 

If it was proven that the prior employer’s actions were improper, one would think that such tortious interference would make the prior employer responsible for the harm suffered by the employee to include emotional distress damages. Yet, such employers argue that they are not responsible for such damages.  Such employers argue that the judicially created doctrine known as the impact rule would prevent recovery. The employment lawyers at LaBar & Adams, P.A. have concluded that such employers are wrong.  Here is why!

II. Florida’s Impact Rule

Florida’s impact rule prevents the recovery of damages for emotional distress caused by the negligence of another.  It does not apply to intentional tort claims.  As the Florida Supreme Court has stated “we have noted that the impact rule does not apply to any intentional torts, such as defamation, invasion of privacy, and intentional infliction of emotional distress.”  Florida Dept. of Corrections v. Abril, 969 So. 2d 201, 206-07 (Fla. 2007)(emphasis added).

III. Florida’s Jury Instruction

An employee’s claim that his prior employer improperly interfered with his employment is an intentional tort.  The Florida Standard Jury Instructions provides for instructing a Jury on damages in a tortious interference case as follows:

[Y]ou should award Plaintiff an amount of money that the greater weight of the evidence shows will fairly and adequately compensate Plaintiff for the damage that was caused by the intentional interference.

Fla. Std. Jury Instr. 408.6. (emphasis added).  This instruction should be given to a Jury and in awarding mental anguish damages would be awarding damages “that was caused by the intentional interference.”  The foreseeability of an employee’s emotional distress damages is the province of the Jury in Florida.

IV. Restatement of Torts

Such a finding by a Jury would also be consistent with the Restatement of Torts. The Restatement provides the following damages for such claims:

(a) the pecuniary loss of the benefits of the contract or the prospective relation;

(b) consequential losses for which the interference is a legal cause; and

(c) emotional distress or actual harm to reputation, if they are reasonably to be expected to result from the interference.

Restatement of Torts § 774A. Thus, because tortious interference is an intentional tort, a Jury’s award of emotional distress damages to an employee would be warranted under Florida law.

V. Florida Court’s Handling of Emotional Distress Damages on a Tortious Interference Claim Brought by an Employee

Consistent with the Restatement of Torts, courts in Florida have sustained awards of mental and emotional distress damages based on the tortious interference with an employee’s employment. See e.g. Albritton v. Gandy, 531 So.2d 381, 388 (Fla. 1st DCA 1988). In Albritton, the Court sustained a $300,000.00 jury verdict in a tortious interference case for injury to an ex-employee’s reputation and mental and emotional distress due to loss of the employee’s subsequent job.  The Court also remanded another count of tortious interference for interference with another job to the trial Court to determine whether a $700,000.00 mental and emotional distress jury award was excessive or needed to be retried. 

VI. Other Jurisdictions

The Albritton decision is consistent with other Courts in the United States that have held that emotional distress can reasonably be expected to result from a defendant’s purposeful interference with an employee’s employment.  See generally Pino v. Protection Ins. Co., Ltd., 490 F.Supp. 277, 280 (D. Mass. 1980)(Holding that emotional distress damages are reasonably to be expected from a defendant’s purposeful interreference with an individual’s employment opportunities.); Kilpatrick v. Delaware County Society for the Prevention of Cruelty to Animals, 632 F.Supp. 542, 550 (E.D. Pa. 1986); Harless v. First Nat. Bank in Fairmont, 289 S.E.2d 692, (W.Va. 1982)(emotional distress damages awardable for the intentional interference with an individual’s employment).

VII. Employment Context

Even if Florida’s impact rule applies to some intentional torts or some claims of tortious interference, it does not apply to an employee’s tortious interference claim.  This is because such a claim is essentially an intentional wrongful termination claim.  A claim that deals with one of society’s most essential and basic relationships- the one between an employer and employee.  Florida law generally recognizes that an intentional tort committed with the intent to end an employee’s employment exposes the wrongdoer to liability for emotional distress damages.  See generally Scott v. Otis Elevator Co., 572 So. 2d 902, 903 (Fla. 1990). 

If you, a family member, or someone you know has suffered emotional distress damages because of the wrongful interference with your employment, please contact the employment lawyers at LaBar & Adams, P.A. at 407-835-8968 or

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