Off Topic - Work related Acute Stress Disorder

[FL_guy]

Dear Socrateaser,

Thank you in advance for reading and responding to this.  I sometimes lurk on this board to see if there are any good tidbits of legal advice that can be gleamed from other reader's questions.  Now I have some.  First, the facts:

1) Background.  My wife works for a property management company located in FL.  Her job had her working for company X, a generally good group of people for whom to work.  Back in July, company Y bought company X, and the work environment changed.  Additionally, my wife was midway through her pregnancy.

2) Wife describes work environment as stressful with unrealistic expectations, long hours (55 with expectation for more even at 8 months pregnant), little reward, high emotional stresses, low morale, and observations of discrimination against anyone not a member of a certail racial group (we are not members).

3) Post hurricane, company Y mandates employees remain in office despite no power and no A/C.  This is clearly unhealthy for pregnant wife.

4) Wife looses baby in utero at 37 weeks.  Though not something we could prove, we both believe that the work stresses have some connection with the loss.

5) Wife is somewhat better 3 weeks after still birth.  She is able to function around the house by performing house hold chores.  She becomes apprehensive about returning to work.

6) After returning to work, stresses resume.  Wife experiences daily, multiple panic attacks.  Eventually, she is forced to leave work to seek urgent care with Psychologist who subsequently pulls her out of work indefinently until she is treated.  Next morning before she could get to her family Dr. for meds, she is forced into the ER for treatment of severe panic (shortness of breath, autonomic hyperactivity, chest wall pain, etc).

7) We filed worker's comp claim, and that is pending.

8) We are gathering all evidence to file claims with EEOC, ADA, and Florida agencies for discrimination.  We are also investigating attorneys specializing in employment law.

9) Company Y has more than 15 employees.

10) Wife and I are refinancing debt load to eventually move from 2 to 1 or 1.5 income family.

Questions:

1) In your opinion, what is the best way to proceed given the facts above?  Should we try to file as many claims as possible (e.g. worker's comp, disability, SSDI, discremination for fed and state, look for less stressful job, seek unemployment benefits due to "wrongful termination")?  Clearly, we are looking at Title VII, Title I ADA, and workplace injury issues.

2) Is looking for another job harmful to any of the approaches mentioned above (especially worker's comp)?

3) Do employment law attorneys take cases on contingency basis?  If not, do they generally do a free initial consult (having a game plan is sometimes the best way to start)?

4) I am concerned that the still birth could be used against us.  If I were the opposing party, I'd allege that the still birth is an independent issue that caused the workplace stress, not the other way around.  Is the concern founded?  How can we proceed given this potential stumbling block?

5) Is there anything else I'm missing?  Am I approaching this from the wrong angle?

Thanks for your time, Socrateaser!  Your services here are appreciated by all.

[socrateaser]

>Questions:
>
>1) In your opinion, what is the best way to proceed given the
>facts above?  Should we try to file as many claims as possible
>(e.g. worker's comp, disability, SSDI, discremination for fed
>and state, look for less stressful job, seek unemployment
>benefits due to "wrongful termination")?  Clearly, we are
>looking at Title VII, Title I ADA, and workplace injury issues.

There's big money in a wrongful termination suit, because this tort carries with it the possibility of punitive damages. In an "at will" employment State (i.e., a State where an employer does not need "cause" to terminate an employee), a wrongful termination is generally caused by an employer creating a work environment such that no reasonable person would remain under those conditions, and the employee actually quits. In a "cause" State, then the employee needs to be actually terminated for some reason not related to his/her work performance.

On your facts, your spouse never quit, nor has she been terminated, therefore, no wrongful termination.

There is also a breach of contract suit. The basic contract of ALL employment relationships, except employment under an agreement for a specific time length, is the agreement that the employer offers work under certain terms and conditions, and the employee accepts that work by performing the work offerred. In such a relationship the contract between the parties is in constant flux, i.e., if a manager tells an employee that lunch has been shortened to 30 minutes from one hour, and the employee takes a 30 minute lunch and then returns to work, that is an offer and an acceptance by performance, and thus a new contract is created.

Most companies have employee handbooks, which state the various conditions and benefits of employment. Most people don't realize it, but the manual is THE written contract between the employer and the employee. If an employer writes that you are entitled to 2 weeks paid maternity and then tells you that you can't have it when you apply for it, that is a breach of contract, UNLESS the employee continues to work after the employer changes the rules, because by continuing work, the employee accepts the change.

So, generally to sue for breach of contract, an employee must reject the new rules (in writing, for proof purposes), and offer to continue to work under the previous conditions, or different conditions, and then if the employer continues to pay the employee, then THAT is ALSO a new contract on the EMPLOYEE'S terms, and the employer has ACCEPTED.

Of course, most employers also don't understand the concept, so when, in my hypothetical, the employee takes maternity leave, and the employer refuses to pay, the employee has a legitimate breach of contract suit, and if it goes to court, the letter combined with no termination by the employer results in positive proof of the agreement and breach, and judgment for the employee.

The down side of this is that the employee in an "at will" State will be immediately terminated thereafter, and that will be the end of that relationship. In a "cause" State, however, the employer can't terminate until the employee fails to perform, and this is where it starts to get "hot," because now we have an extremely adversarial relationship that will almost certainly cause the employer to start to "manufacture" work conditions that will force the employee to quit, and that gets us right back to a wrongful termination suit, assuming that the employee never did unsatisfactory work.

You probably have the idea of where to go and how to get there. If you're gonna try this little activity, you should have a microcassette recorder with you IN PLAIN SIGHT all the time that you're working. And, anytime something seems to have the possibility of affecting your rights and duties, TURN IT ON.

Once again, in an "at will" State, the employer can tell you to turn the recorder off, or you're fired, and there's nothing that you can do, except to challenge the boss and keep on recording. But, in a cause State, recording a workplace conversation has nothing to do with job performance, therefore forcing an employee to turn off the recorder could be viewed as the beginning of a wrongful termination...lol! This is some pretty convoluted stuff, huh?

Ok, the other big money is in discrimination actions. Generally (with some exceptions), private companies may discriminate on any basis that they wish, except for race, religion, color, ethnicity, political affiliation, national origin, sex and age, AND, in any area where the employer accepts a voluntary benefit of the State or Federal government, such as a tax break for providing a tax-deferred retirement account. This means that an employer CAN create different handbooks for every employee, and thus different contracts, but not to the extent that some voluntary benefit from the government is offerred as part of the employment relationship.

Back to your facts, there is nothing to suggest discrimination, except for possibly sex, and the creation of what's known as a "hostile work environment," related to the pregnancy. But, proving this isn't gonna be easy. On the other hand, the loss of a child is a good case for a jury, because it's the dead fetus vs. the big bad company, and I'd take that case, cause anytime a child is involved, it's easy to get to a settlement table (which is where I like to be, cause litigation is a crap shoot -- settling is almost always better, even when you get less).

Your statement that you can't prove that the miscarriage is not related to the work environment isn't exactly accurate. In a civil case like this, you only need to show that it's more likely than not that the miscarriage was caused by unreasonable employment conditions, and while the proof wouldn't be real easy, it's certainly not an impossible case.

However, you're not gonna get rich, either. If there are other employees who will testify to how badly beaten down they feel and better, who will testify to how badly they saw your spouse treated on the job, then you have a case. The fact that your spouse has sought psychological treatment, may get you the workman's comp claim for an on-the-job injury, and it may also be useful to proving wrongful termination.

Finally, with regard to your desire to file a complaint with every agency on earth, I can't say it's a bad idea, however, you may inadvertantly state things in your complaints that are contradictory or that may weaken your case in a separate legal action. This may have already occured with your workman's comp claim.

I think that's about it.


>2) Is looking for another job harmful to any of the approaches
>mentioned above (especially worker's comp)?

Depends. I don't know what you've claimed is your injury. However, for a wrongful termination, looking for another job is an indication that you're not that bummed with the existing one, cause if you were, you would have just walked away, or if it's a "cause" State, you would have fought back and been fired.

>
>3) Do employment law attorneys take cases on contingency
>basis?  If not, do they generally do a free initial consult
>(having a game plan is sometimes the best way to start)?

Yes, they take contingent cases, but they're hard to find, because really good employment attorneys usually work for EMPLOYERS!
>
>4) I am concerned that the still birth could be used against
>us.  If I were the opposing party, I'd allege that the still
>birth is an independent issue that caused the workplace
>stress, not the other way around.  Is the concern founded?
>How can we proceed given this potential stumbling block?

Well, that argument is the obvious defense, and that is really a battle between your expert witness shrink and the company's. But, this is about a dead child and that gives is a lot of sex appeal. Also, this is a case where the PLACE of suit will make a difference. If your company is large and has many locations, then I would probably try to find a place where the jury would be more sympathetic. This might require an expert on jury selection to figure out the right forum.

>
>5) Is there anything else I'm missing?  Am I approaching this
>from the wrong angle?

Well, there's always the "just drop it and move on with your life" angle. That may be the right move, but only you can make that decision.

[FL_guy]

Thanks for the discussion.  If we do just decide to drop this and move on, it's at least stimulating reading.  So far, this is all academic, and you seem to be confirming my suspicions that the game plan is 1) Worker's Comp, and 2) discrimination.   Of course, if my wife can get another job in a less stressful environment, I may just pursue the discrimination claims.  

I also find it fascinating that you are on the opposite side of the fence with me on the still birth issue in that it might help in jury trial situations.  I will share this data with my wife and see where she wants to go with it.  

The interesting part is that my wife has affected coworkers who all feel discriminated against in some way or another.   At least three different individuals can say that company Y prefers race alpha over races beta, gamma, delta, etc, and two of them have been driven to resign over this alleged behavior.  Even my wife's regional manager would agree that most feel they are in a hostile work environment and feel that discrimination in favor of race alpha is present and ongoing.  Getting these individuals plus my wife's doctors to testify appears to be the key.  Additionally, my wife's assistant manager (my wife is/was the manager at this location) is resigning.  

Back to the previous post, the injury is workplace aggravated Acute Stress Disorder with associated Depression with a high likelihood of Post-Traumatic Stress Disorder.  We already have my wife on a cocktail of 3 medications (trazadone, klonopin, and lexapro) to just keep her from needing to go to the ER.

New questions:

1) Based on above, do you see any change to your discrimination suit roadmap?  Wrongful termination suit roadmap?

2) What about obtaining media coverage?  Obviously, the media running with a story of a workplace stress induced stillbirth would certainly cause an uproar.  Of course, we'd have to be careful of not running afoul of any libel/slander (hence my company Y and race alpha - delta designations), but it would certainly encourage a "boycott" of any property managed by company Y, and the owner would be forced to fire the management company in favor of another company.

Thanks, again, Socrateaser.  The discussion is interesting, even if we just let it lie.   You perform a wonderful service.

[socrateaser]

>1) Based on above, do you see any change to your
>discrimination suit roadmap?  Wrongful termination suit
>roadmap?

I'm always leary of people who say that they "feel" this way or that way. Lawsuits based on feelings are doomed from the start. You need proof of an actual injury committed by the defendant company to make a case. Feeling discriminated against is not sufficient -- you need to show how the discrimination actually damaged you (i.e., passed over for promotion, given lesser salary/benefits, treated like a sex object, belittled in front of others, etc.

If you want to make a case, you need witnesses who will actually get on the witness stand and tell their story, and those people must be credible. They must know the things that they testify to of their own personal knowledge, not hearing it from someone else (because they saw, heard, touched, smelled, tasted, it -- not because they "felt" it in the emotional sense). The law only recognizes the first 5 senses.

You haven't presented any facts that suggest actual discrimination to me yet. Doesn't mean that it's not there, just that I haven't read it here.

As for wrongful termination, your spouse hasn't been fired and she hasn't quit, so there's no wrongful termination, no matter what else may have happened.

>
>2) What about obtaining media coverage?  Obviously, the media
>running with a story of a workplace stress induced stillbirth
>would certainly cause an uproar.  Of course, we'd have to be
>careful of not running afoul of any libel/slander (hence my
>company Y and race alpha - delta designations), but it would
>certainly encourage a "boycott" of any property managed by
>company Y, and the owner would be forced to fire the
>management company in favor of another company.

"Workplace stress induced stillbirth" is a personal injury and is preempted by the workman's comp laws. You may get your claim paid, but you're not gonna make any serious money, because you can't sue for that, unless you can prove that your spouse was the subject of extreme and outrageous conduct actually directed by the employer towards your spouse, and specifically intended to cause severe emotional distress.

That will be nearly impossible to prove unless a manager will come forward and state that they were directed to make your spouse's work environment so miserable that she would quit.

Anyway, so far, you've got lots of wind, but a very small kite.

[FL_guy]

Hey Socrateaser,

Thanks, again, for your quick response.  Perhaps I wasn't clear on the violations my wife observed:

1) I don't know the details (my wife does).  My wife was disciplined for not staying long enough to get some reports in quickly enough.  She was already working 55+ hours at 7-8 months pregnant.  Other similar properties were not so disciplined even though they were further behind.  Again, due to the hurricanes, everyone is behind.  This shows inconsistency in discipline, and my wife was pregnant at the time.  My wife brought up that this was too much for her, physically, but they showed no empathy.  Again, she has more detail.  

2) Due to the hurricanes, contractors are in short supply, so repairs to the property are not happening as quickly as possible.  Even now, residents are still sitting in damaged apartments.  So they complain, first to my wife, and then to company Y.  My wife and company Y are in agreement that contractors are in short supply and repairs cannot be implemented as quickly as everyone would like, but company Y turns around and makes it my wife's fault for something over which she has no control.  Residents have resorted to yelling/screaming at my wife, forcing her into panic attacks and severe crying.  

3) My wife has reported harassment on several occasions, but company Y has failed to investigate and was told that "everyone feels this way."

4) Apparently, FL law does not allow worker's comp to cover workplace induced mental/nervous disorders.  My wife was already told her claim would be denied, even with the stillbirth issues she reported.

5) My wife is in no condition to work in the field she previously worked in.  It is possible she is in no condition to seek gainful employment anytime in the near future.

You're probably right that this is a fine line and won't get us anywhere, and that is why I'm bouncing all of this off of you before I go jump off the deep end.

Some more questions:

1) Any change to your discussions above give the 3 facts above?

2) Is there anything that can be done in the worker's comp arena that will change the state's view on mental/nervous disorders caused by work?  An injury is an injury is an injury.

3) Any other avenues for assistance for my wife?  We aren't asking for much, just some assistance since she was injured by company Y.

Thanks, again, Socrateaser.

[socrateaser]

>1) Any change to your discussions above give the 3 facts
>above?

Yep. The purpose of workman's comp laws is to remove the spectre of suits for personal injury against employers that could destroy their business, and to quickly compensate employees who are actually injured.

So, if FL doesn't recognize the injury as per workman's comp, then that means that you should be able to sue in regular civil court for personal injury. Go see a personal injury attorney.

>
>2) Is there anything that can be done in the worker's comp
>arena that will change the state's view on mental/nervous
>disorders caused by work?  An injury is an injury is an
>injury.

Irrelevant.

>3) Any other avenues for assistance for my wife?  We aren't
>asking for much, just some assistance since she was injured by
>company Y.

We've covered it all.

[FL_guy]

:)