In a dissenting opinion in a 2014 appeal involving the death of a trainer at the Orlando SeaWorld water park, Judge Kavanaugh wrote that the trainer, Dawn Brancheau, voluntarily accepted the risk of death due to the nature of her work. Brancheau was taking part as a trainer in a live performance when she laid down on a platform. The whale, Tilikum, was supposed to mimic her movements and "lie down" in the water by rolling over on his back. Instead, he grabbed Brancheau and dragged her underwater where she drowned. OSHA fined SeaWorld, arguing that it could have put measures into place that would have protected the trainer, such as a physical barrier. Judge Kavanaugh disagreed and found that participating in a live animal show carries with it the same risks as other forms of entertainment work, like car racing, baseball and movie stunts. The risk of significant injury, even death, according to Kavanaugh, is simply a possible and unfortunate result of that work. In other words, SeaWorld was not required to anticipate that a killer whale may attack a trainer, and take steps to avoid the danger. Whether you agree with Kavanaugh or not, we can all agree that he believes in limiting the liability of employers.

A recent Eighth Appellate District decision in the case of Kassay v. Niederst Management, Ltd. , 2018-Ohio-2057 (May 24, 2018)  upheld a jury verdict which awarded a terminated employee $248,900 in damages related to emotional distress caused by his termination. The jury also awarded back wages, front pay, punitive damages, attorneys' fees and interest. Of note in this case was that the amount awarded for emotional distress, because it was not supported by expert evidence from a medical professional. The terminated employee testified that he felt like less of a man because he lost his job, and the lack of an income caused arguments with his family, caused him to lose sleep, damaged his credit and  his relationship with his children suffered. The court found that this was sufficient evidence to substantiate the $248,900 award for emotional distress. What this means for you is that, if you find yourself in the unfortunate situation of being wrongfully terminated from your job, keep a diary of everything related to your job search and how the termination has affected your life. If you could not sleep that night, write it down. If there was a medical bill you could not pay and it caused an argument, write it down. Anecdotal evidence like that may be the difference in recovering damages for your emotional distress. 

When an employer fails to pay an employee all wages, commissions, bonuses or other money due to the employee, can that employee quit and still get unemployment compensation? According to Ohio’s Eighth Appellate District in Cuyahoga County, as long as the employee notifies the employer, and allows time for the deficiency to be corrected, the employee has done all they can and is entitled to unemployment compensation if the problem remains uncorrected and the employee quits. Barno v. Director, ODJFS , 2018-Ohio-1196 (8th App. Dist., March 29, 2018). This presents a tricky situation when filling out an application for unemployment benefits. The employee will have to state that he or she quit the job which will trigger an investigation by ODJFS into the reason. It is important for the employee to explain the circumstances surrounding the failure to pay wages by the former employer, notice to management and the failure by the employer to correct the shortage. If you are in a similar situation and have questions, call our office for a free consultation.