Bullying Alone Does NOT Constitute an Illegal Hostile Work Environment
Questions? We will spend 5-10 minutes with you discussing your current work situation, your disability/FMLA leave, your non-compete agreement, your wage claim, your unemployment claim or your potential lawsuit at no charge to you. Feel free to send us an e-mail via our Contact Form or give us a call at 610-647-5027. We are always glad to spend some time with
people via a free telephone consultation.
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| 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?
It is difficult, but possible. As discussed below, an employee hoping to secure unemployment benefits following a resignation must follow certain steps very carefully prior to resigning.
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| Courts Require "The Reasonable Employee" to Exhaust All Efforts to Retain Job Before Resigning? |
Very often, the most important facts are not what has happened up to today but, rather, what happens between now and your last day of work. Sometimes, we can help with strategies on that.
What is a “Case?”
For an attorney, a “case” exists when a client has suffered Substantial
Economic Loss as a result of unlawful misconduct. This is typically in the form of a termination, demotion or failure to promote. It may also be caused by a Constructive Discharge, i.e. where the company makes an employee's life so intolerable that the average employee would feel justified in quitting.
The "simplest" Constructive Discharge claims involve being moved to a different shift without good cause, being demoted with a substantial loss of pay, being transferred to a remote work location. The more difficult matters are those where the employee believes they are being subjected to a hostile work environment characterized by being subject to isolation, being passed over for plum assignments, or being the recipient of snide, rude comments, or worse. Those situations are extremely difficult to deal with, because they are hard to prove and the courts expect an employee to put up with "garden variety mistreatment" at work.
Where Substantial Economic Loss exists, a contingent fee representation is in order; absent such Economic Harm, however, there are no money damages to recover and, hence, a contingent fee agreement is not called for.
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| Loss of Compensation Necessary to Contingent Fee Representation in a Case |
From our perspective, and that of most experienced 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,
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| 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.
HERE ARE SOME OTHER ARTICLES YOU MAY FIND WORTHWHILE:
What
is an ILLEGAL Hostile Work Environment? Workplace Bullying Alone is Not Illegal
in Pennsylvania
What
is an ILLEGAL Hostile Work Environment? Workplace Bullying Alone is Not Illegal
in Pennsylvania
Employee Complaints and
Retaliation - What is Legal and What is Illegal
FILING A CHARGE OF
DISCRIMINATION IN PENNSYLVANIA - A FEW TIPS FROM CONTINGENT FEE LAWYERS
United States Employment and Discrimination Laws - An
Overview by Pennsylvania Employment Lawyer
UPDATE on Recent and Pending Discrimination Matters Pertaining to LGBT-Rights from SCOTUS and EEOC
Voluntary Severance Offers - How to Negotiate and What to
Look for When a Company Offers Severance
What is a Contingent Fee Agreement?
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."
The "Classic Workers' Comp Case Involves Physical Injury
Resulting From a Work-Place Accident
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.
However, workers' compensation cases predicated on claims of stress solely induced by a hostile work environment are notoriously difficult to win. That is so because high stress levels resulting from "normal workplace mistreatment" exist in nearly every workplace. Workers' compensation insurance carriers need to see proof of extreme, over the top mistreatment to honor a claim. You certainly may feel that you are suffering such mistreatment, but in reality, such cases are rare and often require proof of physical touching, callous personal attacks (versus garden variety bullying) and, without question, a psychiatric (or at least psychological) diagnosis of PTSD and/or the like. Such cases are pretty rare.
You Are Not Alone, Many Feel Mistreated and Stressed at Work
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, such cases are, in our experience, rarely filed. There are a number of reasons for that.
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| 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 intentional 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.
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.
Find Your Work Environment Intolerable?
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.
Sometimes, the first step may be taking a Family and Medical Leave. Here are some articles about how the FMLA works, as well as on related issues of possible interest:
Am I Eligible for
Unemployment Benefits if I am Out on Family Leave?
Need to Discuss Your Situation? No Charge for an Initial Conversation
610-647-5027
We are employment attorneys who
represent 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.
Have questions and need a legal opinion regarding your situation? Feel free to send us an e-mail via our Contact Form or give us a call at 610-647-5027. We are always glad to spend some time with
people via a free telephone consultation.