Monday, October 17, 2016

Hostile Work Environments, Intentional Infliction of Emotional Distress and Workers' Compensation - Witches Brew Limits a Pennsylvania Employee's Ability to Sue for Emotional Distress, Anxiety and Psychological Harm Cause by Bullying, Discrimination or Retaliation at Work

Need Legal Help With a Severance Agreement?
John Gallagher's Philadelphia Area Law Firm Negotiates
All Types of Employment Contracts
610-647-5027 or

John A. Gallagher is a Philadelphia area employment attorney who assists Pennsylvania workers located in towns such as Downingtown, Reading, Souderton, Blue Bell, Nether Providence, Newtown Square and Lancaster review and negotiate Severance Agreements.  Located in Chester County, Mr. Gallagher will evaluate of your Separation and Release Agreement for a reasonable flat fee and will provide guidance on how to minimize the impact of Non-Compete Covenants while maximizing protection from termination without cause often suffered by At-Will Employees.
Remind You of Anyone at Work?
I Am Currently Experiencing Severe Mistreatment and Retaliation at Work- Can I Quit my Job and Get Unemployment? Would You Take My Case on a Contingent Fee Basis?

I probably receive 10-15 calls or e-mails asking some variant of these questions each and every week. I am truly blessed that the public seeks my advice or opinion on matters of such critical importance to them, both financially and otherwise.

Please Understand:  I Cannot Answer Such a Question Via e-Mail

Yet, such questions are virtually impossible to answer via a Reply e-Mail.

I am sometimes perplexed - OK, that is passive/aggressive of me - I am frequently miffed - when someone sends me a lengthy e-Mail jam-packed with facts about events that have taken place over the course of months, or even years, and then asks me whether they will be entitled to recover crucial unemployment benefits, or whether they win a lawsuit if they in fact resign.

It is simply impossible for an attorney to provide a competent opinion in such a circumstance.

What is more, what the individual needs in such situations is not an opinion but, rather, legal guidance.

That is so because, as discussed below, an employee hoping to secure unemployment benefits following a resignation must follow certain steps very carefully prior to resigning.

Courts Require Employees to Exhaust
All Efforts to Retain Job Before resigning?
If You Are Experiencing an Ongoing Problem in Your Current Job, We Can Discuss Some Possible Approaches During a Short Phone Call at No Cost To You

When folks call me with such questions, a more difficult, but at least potentially productive situation is presented.

The law is all about F-A-C-T-S.  The outcome of any legal dispute is largely predicated upon the words and events that led to disagreement and, ultimately, to a legal proceeding.

Since it is virtually impossible for an attorney to glean all facts necessary to a competent opinion during a short phone call, I face two choices when I encounter such calls are placed to my office:

    1) spend time pro bono understanding all of the facts I need to render a competent opinion; or,

    2) learn enough facts to obtain a sense as to how I may be helpful, if at all.

If I choose the former course, I will spend 15-20 hours per week volunteering my services, and will soon be out of business.  So, the latter approach is one I long decided to take.

This approach works for financial reasons, but also for another, more important reason as well.

Potential voluntary quit situations cannot be resolved via a single phone call or consultation. Properly winding down an employment relationship takes, time, negotiation and multiple communications.  

What is a “Case?”

Finally, the situation presented above does not constitute a "case" but, rather, what lawyers refer to as a "matter.  Allow me to explain.

For an attorney, a “case” exists when a client has suffered Substantial Economic Loss as a result of unlawful misconduct. Where such Loss exists, a contingent fee representation is in order; absent such Loss, however, there are no money damages to recover and, hence, a contingent fee agreement is not called for.
Loss of Compensation Necessary to
 Contingent Fee Representation in a Case
Employees who, despite being subjected to workplace abuse, are still earning the same amount of pay as they were before things turned sour,  have not (yet) suffered a Substantial Economic Loss (i.e. an amount in the thousands) and therefore do not presently have a “case.” 

From my perspective, and that of most experience employment lawyers who represent employees, there are only a few scenarios involving currently employed workers that could possible justify the filing of a "case." The most common of these are:

1)    The employee has not received substantial compensation to which he/she is entitled, such as weekly pay, salary, bonus, award or commission;

2)    The employee has been misclassified as an “exempt” worker, and has been deprived of substantial overtime pay;

3)    The employee has been misclassified as an “independent contractor,” and has been deprived of medical benefits, sick/personal/vacation pay, overtime compensation, etc.,  provided to similarly-situated co-workers properly classified as employees;

4)    The employee has been recently demoted and suffered a substantial reduction in pay;

5)    The employee has recently been passed over for a promotion which, if had it been awarded, would have resulted in a significant pay increase; and/or,

Physical Assault of a Sexual Nature at Work =
 Unlawful Sexual Harassment =
Substantial Economic Loss
6)    The employee has been the victim of sexual harassment that involves groping, fondling and worse.

Why Employment Lawyers Will Not Represent Employees Who Are Still Employed on a Contingent Fee Basis

In a contingent fee representation: a) the attorney gets paid only if he/she wins; and, b) the attorney is paid a percentage of the amount of money damages he/she obtains on behalf of the client.

An employee who has been fired or forced to quit due to illegal mistreatment at work will thereafter suffer a loss of income and benefits, and therefore a Substantial Economic Loss warranting contingent fee representation.  

However, since such Substantial Economic Loss does dot begin to accrue until after the employment relationship has ended, a currently employed worker does not present with a "case." 

May I Sue My Current Employer or My Co-Worker for Emotional Distress Due to a Hostile Work Environment? The Worker’s Compensation Problem.

Unfortunately, emotional and psychological injuries caused by mistreatment at work are considered personal injuries, and therefore an employee may seek to recover damages for such injuries only by filing a workers’ compensation claim

I do not handle workers’ compensation claims and, based upon my discussions with workers’ compensation attorneys over the years (most of whom handle such matters only on a contingent fee basis) they will rarely take on a case where the employee's injuries are limited to emotional or psychological damages.    

A Word About “Hostile Work Environments” Due to Discrimination or Bullying, Workers’ Compensation Claims Based Upon Strictly Emotional or Psychological Trauma and “Intentional Infliction of Emotional Distress.”

Many scholarly articles discussing emotional distress and workers’ compensation law will reference that employees subjected to “intentional infliction of emotional distress” (“IIED”) may sue their employer and/or co-worker in a court of law.

As a general legal proposition, that is accurate.

However, I have been practicing law since 1991, and I may have taken 3 IIED cases over that time. There are a number of reasons for that.

Severe Bullying Alone Unlikely to Rise to the Level of
Intentional Infliction of Emotional Distress
First, since an IIED claim is based upon intentionally harmful conduct, those who engaging in such misbehavior are as a matter of law acting outside of the scope of their employment.  Since companies can be sued only for acts undertaken by employees acting within the scope of their employment, an employer cannot be sued in a court of law for such acts. Even worse, such intentional misconduct also eliminates an employee’s right to sue under Pennsylvania’s Workers’ Compensation Law. 

NOTE:  For an in-depth discussion of the above-principles, read Shaup v. Jack D’s, Inc., a 2004 case decided by a federal judge in Philadelphia.

Second, IIED claims are viable in any context in only the rarest of circumstances, and this is especially true in the employment context.  Consider, for example, how offensive the “N” word is to a black person, and then consider the following passages form Frazier v. Exide Technologies, a 2012 case decided by a Philadelphia federal judge:

Plaintiff’s supervisors harassed him with racial insults and subjected him to discriminatory treatment. Plaintiff claims that, among other incidents, a supervisor told him to “pick up the pace nigger,” and made comments to other workers such as “I’m not gonna let that nigger have this job” and “I ain’t letting that nigger pass his evaluation.” Plaintiff also claims he was assigned to heavier and more 1 difficult lifting in an attempt to keep him from meeting his quotas, which he met anyway. Moreover, Plaintiff alleges that his supervisors failed to provide the computer training that his white counterparts received, and thus he was forced to learn from his co-workers...

The complaint further explains that because of this discriminatory treatment, Plaintiff made several complaints to Exide’s Human Resources Department.  Instead of making the situation better, however, Plaintiff alleges that “the behavior continued and became worse.” On October 18, 2007, after a supervisor allegedly called him a “nigger,” Plaintiff left his employment. Upon calling Human Resources, Plaintiff was told that he had been terminated...

To prove the tort of IIED, Plaintiff would have to show, among other things, that the Defendant engaged in “extreme or outrageous” behavior. Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988). The Pennsylvania Supreme Court has noted that IIED is reserved for only “ultra extreme conduct.” Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998). As the Third Circuit has observed, “it is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery” for IIED. Cox, 861 F.2d at 395. Moreover, “the cases in our district have consistently held that highly provocative racial slurs and other discriminatory incidents do not amount to actionable outrageous conduct,” despite their reprehensibility. Coney v. Pepsi Cola Bottling Co., 1997 WL 299434, at *1 (E.D. Pa. May 29, 1997). Because Plaintiff’s complaint consists of incidents in which his supervisors subjected him to “highly provocative racial slurs” and “discriminatory incidents,” I hold that Plaintiff has failed to state a claim for IIED.

How Can I Put an End to My Horrible Work Situation and Collect Unemployment?

Whatever the motive behind the mistreatment, there is no question that being subjected to mistreatment at work day after day can and will cause significant trauma for even the most grounded, confident and stable person.  Eventually, the feelings of fear, abandonment, isolation, mistrust and anger follow you home, to dinner and to bed.  They are there when you wake up to get the kids ready to school, as you have your morning coffee and on the way into work.

Yet, no matter how severe the mistreatment the currently employed worker has suffered suffered, and the resultant physiological, emotional and psychological pain, it is likely that he/she will still need to take certain steps prior to resigning in order to give his/herself the very best chance of collecting unemployment compensation or proving a case of constructive discharge.  This is where an experienced employment lawyer may be of help, but some sort of fee arrangement - be it flat fee or hourly - will be required.

Representing Pennsylvania’s Workforce Since 1991

John A. Gallagher is an employment attorney who represents employees who need an employment lawyer in the Philadelphia area, including individuals who live or work in Philly or nearby communities such as Chester County, Delaware County, Montgomery County, Bucks County, Berks County and Lancaster County.

Philadelphia Area Family and Medical Leave (FMLA) Lawyer Helping Employees With Medical Leave Requests and Short-Term Disability Appeals

Need an Experienced Pennsylvania Employment Attorney to Help You Negotiate an Employment Agreement or Severance Contract?

Have questions and need a legal opinion regarding Pennsylvania Unemployment issues such as  Willful Misconduct  or seeking legal representation for a Pennsylvania Unemployment Referee Hearing, feel free to send me an e-Mail or give me a call; I will provide a brief analysis of your issue and/or chance for winning at no charge.   

Click Here to jump to our answers to FAQs concerning a wide variety of common
employment law questions, such as “How does FMLA work?”-  “What does it mean to be an at-will employee?”-  “Do I have a claim for wrongful termination?” or “Is my non-compete enforceable?”  

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, including voluntary quit, willful misconductindependent contractor, self-employment, completing a Claimant Questionnaire, sideline employment or severance, or if you want to hire an attorney for a Referee Hearing. 

Click Here to e-mail John directly.

Thanks for checking in with us.

Wednesday, September 28, 2016

NFL Power Rankings and NFL Rookie Rankings After Week 3 of 2016 NFL Season Rank Eagles, Carson Wentz Highly - Rankings From, ESPN, USA Today Collected Here

Carson Wentz and Eagles Defense Leads Birds to Top 7 or Better Ranking in Virtually All Major Publications After 34-3 Blowout of Steelers

Welcome to Wentzylvania, Carson!

Carson Wentz Number 11 in QBR After Week 3 
of 2016 NFL Season
The top 15 quarterbacks as per's QBR Ratings after Week 3 of 2016 Season:

Matt Ryan, ATL
son NFL Leaders has Carson Wentz ranked 14th best quarterback after Week 3 of 2016 NFL season.

Pro Football Focus has Carson Wentz Ranked as Number 1 Rookie in all of NFL After Week 3 of 2016 Season

Here is how Michael Renner of ProFootballFocus ranks the Top 10 Rookies in the NFL through Week 3 of the 2016 Season:

1. Carson Wentz, QB, Eagles

At least make it interesting, Carson! The second-overall pick simply does not want to make mistakes, which is good news for Eagles fans—and bad news for everyone else on the list. He has a grand total of one turnover-worthy throw this season, second-fewest of any quarterback in the league. Add to that the fact that his 80.4 adjusted completion percentage is the highest in the NFL, and it’s easy to see why he’s not only in the Rookie of the Year race, but also in contention for MVP at this point.

2. Dak Prescott, QB, Cowboys

The two rookie QBs at the top of this list are basically forcing us to rewrite everything we …

3. Jack Conklin, RT, Titans 

As a draft prospect, Jack Conklin’s pass protection was pegged as “broken”—something …

4. Sterling Shepard, WR, Giants

The Giants’ receiver continues to produce in every game this year. On 84.2 percent of …

5. Su’a Cravens, LB, Redskins

I said last week that if Su’a Cravens continues his high-level of play—even in a part-time role…

6. Jalen Ramsey, CB, Jaguars

The fifth-overall pick in the draft makes his first appearance on this list after a career game …

7. Cody Whitehair, C, Bears

 The former Kansas State left tackle has had his issues moving to center, but those begin and …

8. DeForest Buckner, DE, 49ers

     Yet another solid, if unspectacular, game for the seventh-overall pick. So far, DeForest…

   9. Jatavis Brown, LB, Chargers

   Coming out of Akron, I had no clue what I would do with Jatavis Brown. He was too big …

   10. Andy Janovich, FB, Broncos

   The list of rookies in major roles playing above-average football ends at nine at the moment…

No. 4 With a Bullet, Baby! On the Rise!
Fly, Eagles Fly: Birds No. 4 in The Sporting News' Power Ratings After Week 3 of 2016 NFL Season

Having scoured the Internets, the highest ranking I found for the Eagles was via the Sporting News.  Here are the Top Ten from the Sporting News’ Week 4 Power Rankings, courtesy of
  • 1 Patriots 3-0 (last week: 1)
It almost will be like Tom Brady never left. Deflategate is about to leave the NFL...

  • 2 Broncos 3-0 (last week: 2)
Turns out Trevor Siemian can be a lot more than careful caretaker when needed...

  • 3 Vikings 3-0 (last week: 11)
Minnesota has gone nuts stockpiling defensive draft picks under Rick Spielman over...

  • 4 Eagles 3-0 (last week: 13)
Break up Carson Wentz. The kid is on fire out of the gate, with plenty of help from scheme, formation and personnel. But the co-MVP of Philadelphia’s fast, furious start is definitely defensive coordinator Jim Schwartz and his influence on a stacked front seven. This week: Bye

  • 5 Packers 2-1 (last week: 5)
Aaron Rodgers and Jordy Nelson lit it up Sunday, with plenty of a powerful-yet-svelte...

  • 6 Steelers 2-1 (last week: 3)
Pittsburgh looked pretty nasty over the first two games, but it's hard to explain what...

  • 7 Seahawks 2-1 (last week: 12)
Russell Wilson is trying to play through everything, and Seattle will be OK pushing it...

  • 8 Ravens 3-0 (last week: 10)
Baltimore has wins over teams that are a combined 1-8, but it can't be discounted how...

  • 9 Chiefs 2-1 (last week: 14)
Kansas City enjoyed an interception fest against the Jets and got back on track in pushing...

  • 10 Giants 2-1 (last week: 7)
 Odell Beckham Jr. stirred up a little trouble, but it was the defense that lost its way...

MORE: Why Beckham needs to chill

Eagles D Now - The Best Since Back Then?
On the Road to Victory! Birds No. 6 in NFL.Com Power Rankings After Week 3 of 2016 NFL Season

Elliott Harrison from has the Eagles ranked 6th in his Power Rankings after Week 3.  Here are the Top 16:


After a one-week absence, the Patriots are back atop these here Power Rankings. The slight…


Trevor Siemian -- take a bow, man. No team has impressed your hack writer more than the…


The Vikings continue to prove people -- including this Game Picks idiot -- wrong, winning…


Aaron Rodgers pulled off the Tom-Brady-circa-2015 "Up Yours" performance with an insane…


Much consternation regarding the health of Russell Wilson in the aftermath of Sunday's win...

Head Coach Doug Pederson -
VERY Impressive So Far
Last week No. 14!

What's not to like about the Eagles right now? They whipped one of the (presumed) top teams in the league. They paid a king's ransom for a rookie quarterback -- a rookie quarterback who apparently didn't impress one particular winless team (this decade, seemingly) -- and he's balling out. Most importantly, Jim Schwartz's defense has allowed a grand total of 27 points in three games ( the lowest figure in the NFL by 10 points). The defensive line played out of sight Sunday night. Ah, the NFL. 

JAG's Note:  The Birds' D has actually allowed only 20 points - special teams gave up 7 points on a meaningless punt return against Da Bears....

Last Week:  No. 1!

The Steelers looked flat terrible on Sunday. The only thing higher than Ben Roethlisberger's…


What a rebound by the Chiefs' defense on Sunday. The key stanza might have been…


Dakmania continues, as every announcer starts to buy in, with the Sunday night crew being the…  


Sure, all three games have been close. The combined record of the Ravens' vanquished…


Ugly loss at home versus the Vikings. The Panthers must be kicking themselves for not…


Cardinals fans have permission to be worried. Carson Palmer = shaky. The defense? Not…


The Texans appeared so awful Thursday night that they probably deserved to be lower...


For a team that has made it to the postseason in five consecutive seasons, the Bengals sure…


Moments ... so many moments ... in Sunday's game when I wondered aloud if Derek Carr…


"What was he seeing there?"-style picks from Eli Manning on Sunday. For years, the...

Philadelphia Eagles No. 7 in ESPN.Com Power Ratings After Week 3 of 2016 NFL Season


2016 record: 3-0
Week 3 ranking: No. 5
QB Trevor Siemian is getting better by the week...

2016 record: 3-0
Week 3 ranking: No. 1
Hey Bill, just start Julian Edelman at quarterback this ...

2016 record: 2-1
Week 3 ranking: No. 10
The Seahawks looked like the Seahawks in Week 3...

2016 record: 3-0
Week 3 ranking: No. 7
The Vikings lead the NFL in sacks and have allowed ...

2016 record: 1-2
Week 3 ranking: No. 3
Should we start worrying about Arizona? Including playoffs, the Cardinals are 2-4 in their past six games and have lost by 15-plus points three times. ...

2016 record: 2-1
Week 3 ranking: No. 9
Is something wrong with QB Aaron Rodgers? Guess not...

2016 record: 3-0
Week 3 ranking: No. 15
The Eagles head into their bye week 3-0 behind a rookie head coach and a rookie quarterback who has yet to turn over the ball. The Eagles also have allowed only 27 points through three weeks, best in the NFL.

2016 record: 1-2
Week 3 ranking: No. 4
It took the Panthers three games to match their 2015 loss total ...
2016 record: 2-1
Week 3 ranking: No. 2
What was that? Three points when you want to average 30? That's ...

2016 record: 3-0
Week 3 ranking: No. 13
The Ravens are unbeaten but those three wins came by a combined 13 points...

2016 record: 2-1
Week 3 ranking: No. 18
QB Dak Prescott ranks in the top three in Total QBR through Week 3...

2016 record: 2-1
Week 3 ranking: No. 11
The Chiefs have posted a monster comeback and a dominating...

2016 record: 1-2
Week 3 ranking: No. 8
The Bengals have converted only three of their 10 red zone drives into touchdowns ...

2016 record: 2-1
Week 3 ranking: No. 16
In Week 3, the Raiders' defense held the Titans to 10 points after allowing 69 points in Weeks 1-2 combined...

2016 record: 2-1
Week 3 ranking: No. 12
If it seems like every Giants game comes down to the final drive...

Sports Illustrated’s 2016 NFL Power Rankings After Week 4: Eagles at No. 4

“Give me your tired, your poor, your huddled masses yearning to breathe free ...”

Trevor Siemian’s four-touchdown performance in Cincinnati drew him a QB rating of 132…

The only team with fewer yards of offense than the Vikings’ 796 is Los Angeles, which …

On the Jim Schwartz fist pump rating scale, the three-pump flurry he unleashed following Philadelphia’s final defensive stand Sunday ranks right up there with that time he tried to punch himself into another dimension after an OT win with Detroit. Schwartz’s defense is as much of a factor in the Eagles’ 3–0 start as Carson Wentz.

That strange apparition you saw during the Chiefs-Jets game was Ryan Fitzpatrick’s soul …

Given the Steelers’ awful history in Philadelphia—they have lost nine straight games there…

Can we talk for a second about how ludicrous it is to have a Week 4 bye, like the Packers …

The Ravens’ wins have come by an average of 4.3 points against three teams sporting a …

A healthy Jimmy Graham (six catches, 100 yards and a TD last Sunday) may be just what

Carolina’s pass blocking comes with the same odds of success as …

The Browns moving the football with Cody Kessler and Terrelle Pryor provided an answer …

The injury bug won’t go away—guard La’el Collins (foot) just landed on IR and Dez …

Say hello to the league’s lone team with three separate players (Latavius Murray, Jalen …

Imagine that instead of upsetting the Soviet Union, the 1980 U.S. Olympic hockey team lost …

The Cardinals are one or two more no-shows away from testing Bruce Arians’s likeability -…

New York missed a golden opportunity to take control of the NFC East and now faces back-to-…

USA Today’s Week 4 Power Rankings Has Eagles Ranked Number 4

Click to jump to Week # Power Rankings.

Your Author, Rocking B-Dawk -
After The Miracle at the Meadowlands II