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?
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610-647-5027 or jag@johnagallagher.com

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.   

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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. 

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