3-3 Related State Torts
Many plainti employment practitioners supplement their state and federal statutory discrimination claims with
related state tort claims. Indeed, many courts have recognized that responsible plainti’s employment practitioners
bringing statutory discrimination cases have a duty to also plead a variety of statutory, tort and contract causes of action
clients. Σεε Ροϕο ϖ. Κλιγερ, 52 Cal. 3d 65, 74 (1990); σεε αλσο Χροωλεψ ϖ.
Κατλεµαν, 8 Cal. 4th 666, 668 (1994). In addition to serving as an extra basis upon which liability may be found, other
reasons for pleading related state tort claims along with state and federal statutory discrimination claims include:
• There are generally no caps on the amount of damages available on the related state tort claims [σεε §3:05]
• State tort claims serve as a method to name additional defendants that otherwise could not be named
under the statutory discrimination claims;
• State tort claims serve as a precaution against possible defects in the exhaustion of administration remedies
• State tort claims are a potential method to avoid federal diversity jurisdiction;
• State tort claims may be used as an additional method to obtain discovery that might not otherwise be
• State tort claims may be used to ensure the admission of evidence that might not otherwise be heard by
the jury; and
• State tort claims may allow the plainti to allege facts that might not otherwise be relevant and, by doing
so, place increased pressure on the defendant to settle the case.
Consult model jury instructions
In determining whether there are sufficient facts to bring related state tort claims and when drafting state
tort claim allegations, consult the model jury instructions in your jurisdiction. These model jury instructions are
extremely useful in providing a roadmap for pleading and proving state tort claims.
Be Wary of Federal Preemption
In determining which state tort claims to bring on behalf of the plaintiff, it is important for the plaintiff
employment attorney to ensure that those claims will not be preempted by federal law. Federal preemption
most commonly arises from four bodies of preemption law
• “Garmon” preemption under the National Labor Relations Act.
• “Machinists” preemption under the National Labor Relations Act.
• Section 301, Labor Management Relations Act preemption.
• ERISA preemption.
An example of how Garmon preemption can result in the dismissal of state tort claims is Moreno v. UtiliQ-
uest, LLC, 29 F.4th 567 (9th Cir. 2022). In that case, the plaintiff, Cesar Antonio Moreno, appealed from the
district court’s dismissal of his lawsuit against his former employer, defendant UtiliQuest. Moreno alleged that
UtiliQuest promised him that if he convinced all of his fellow employees to “sign away” their union rights, they
would each receive a ten percent raise. Once Moreno obtained signatures from his co-workers releasing their
union rights, UtiliQuest gave him a ten percent raise. Moreno soon learned, however, that UtiliQuest did not give
any other employees the promised raise. Moreno contends he was terminated after confronting his supervisors
about UtiliQuest’s breach of its promise. Moreno brought various claims related to his termination, but the
district court dismissed them because it found that they were preempted by the National Labor Relations Act
(“NLRA”), 29 U.S.C. § 151 et seq. The Ninth Circuit affirmed the district court’s dismissal of Moreno’s complaint:
The NLRA does not contain express preemption provisions, but the Supreme Court held that two
categories of state action are implicitly preempted: (1) laws that regulate conduct that is either
protected or prohibited by the NLRA (Garmon preemption), and (2) laws that regulate in an area
Congress intended to leave unregulated or controlled by the free play of economic forces (Machinists
preemption). UtiliQuest contends that Garmon preemption applies to Moreno’s claims.