LEGAL MATTERS HANDLED PERSONALLY SINCE 1957

Can an Employer Be Sued for Emotional Distress in Ohio?

Work is stressful enough as it is without your superiors intentionally causing you emotional distress through targeted actions. If your employer or managers have taken deliberate action that resulted in you experiencing emotional distress, then you can file an emotional distress lawsuit. However, it is important to note that in the state of Ohio, the classification of a case like this is extremely specific and, as a result, difficult to win. 

If you have sufficient proof that some action by the company’s managers triggered profound shame, fear, embarrassment, depression, or post-traumatic stress, then you may very well be entitled to compensation. Contact the Columbus employee rights attorneys at Barkan Meizlish today to find out if you have a case for an emotional distress lawsuit. The initial consultation is free, so you have nothing to lose.

Grounds for Bringing an Emotional Distress Lawsuit Against an Employer

It is important to note that state laws in Ohio make it nearly impossible for employees to sue their employers after work-related accidents induce emotional distress. That is to say, personal injury lawsuits, which often include emotional distress claims, almost never move forward against employers when the plaintiff is an employee unless the emotional distress is caused by another clearly violated law.

Most claims related to an on-the-job injury or illness must be handled through the workers’ compensation program. A workers’ comp claim can include requests for the coverage of treatment for mental and emotional problems that develop as a result of an injury or illness, but the program will not approve a claim for emotional distress specifically. If you have reason to believe you were targeted by an employer or manager and it led to you experiencing emotional distress, then you need to hire an Ohio emotional distress attorney to take your case.

The types of lawsuits against employers that can include claims for emotional distress usually relate to violations of employment laws that prohibit discrimination, harassment, and illegal forms of retaliation. For instance, a worker who brings a wrongful termination lawsuit can include a claim for the emotional distress they suffered while unemployed and struggling financially.

Stress itself cannot support either a workers’ comp claim or a lawsuit against an employer. Lawmakers and courts expect all jobs to be stressful and therefore rule out emotional distress claims in and of themselves without an underlying cause that is in violation of another law. An employer can only be sued when its managers deliberately make a position more stressful than it needs to be in order to harm an employee or to compel the employee to quit.

Can I Sue for Emotional Distress?

To succeed in convincing a judge and jury that you suffered emotional distress because of something your employer did, you must present convincing evidence of all the following facts:

• Your employer acted recklessly or with intent,
• The action was illegal or extreme and outrageous,
• The action directly caused your emotional distress, and
• Your emotional distress was severe.

Proving intent in an emotional distress case can be challenging, but documenting complaints about distressing treatment such as harassment or discrimination will significantly help your case when you decide to take action. Partnering with an experienced and understanding employee rights attorney like those at Barkan Meizlish will help you cite which laws were violated and make a case for actions well beyond ordinary teasing or everyday stressors.

You can use medical records, insurance claims, pharmacy bills, and therapists’ notes to demonstrate the connection between the action and your emotional distress. In addition, this information can also be used in determining the severity of the emotional distress caused by your employer.

Finally, to secure a jury award, you must be able to show that your employer knew about the issue that was causing emotional distress and either caused the issue or did nothing to resolve it. Internal records of meetings and emails can be essential forms of proof in this regard and should always be documented for use in your emotional distress lawsuit.

Columbus Emotional Distress Attorney

Here at Barkan Meizlish DeRose Cox, LLP, our attorneys specialize in employee rights laws which means we are always on your side. We provide the assistance you deserve and can determine whether or not you have a valid emotional distress case upon your initial consultation, which is always free of charge. Contact the Columbus employee rights attorneys at Barkan Meizlish today to determine if you have a case and to get the compensation you deserve.

Seasonal Businesses and the FLSA

In response to the effect of COVID-19 on seasonal businesses, the U.S. Department of Labor will issue a temporary reprieve to these seasonal businesses against the Federal Fair Labor Standards Act (FLSA) minimum wage and overtime violations. Many of these businesses were forced to adapt their day-to-day operations because of the pandemic. Resultingly, many seasonal businesses were made ineligible for the seasonal exemption due to these necessary adaptations.

Changes due to the Pandemic

Businesses that have had to change their operations due to the pandemic are, according to a Law360 article, “those business that are only open for seven months a year or less or whose income fluctuates dramatically at different points in the year.” Such seasonal businesses include amusement parks, golf courses, stadiums, and camps, whose ability to remain open and offer services is highly dependent on the weather and/or (especially for camps) the summer term of the school year. Again, these businesses will benefit from non-enforcement of FLSA minimum wage and overtime violations that may even continue into 2021 should the pandemic, and its dampening economic effect, persist.

Companies that have had to adopt alternatives to their usual operations will be those benefited by the non-enforcement of such FLSA claims for the time being. However, with the benefit of this non-enforcement, a few factors must be met for it to apply to a seasonal business.

Factors to Consider

In order to enjoy the advantages the DOL is offering, businesses must have either been an exempt seasonal operation before 2020 or one that had already implemented plans to become an exempt seasonal operation before the start of that year. Additionally, the businesses must put in place a plan to resume regular business in 2021 while maintaining their pre-pandemic wages.

All of these changes have been implemented by the DOL in an effort to mitigate the harsh impact that the pandemic has had on businesses, mainly seasonal ones. With the implementation of the non-enforcement of such claims for the time being, the DOL hopes to ease the burden that such employers have had to face until the levels of such operations can adjust to their normal, pre-pandemic positions.

– Jacob Mikalov for Barkan Meizlish DeRose Cox, LLP

2020 FMLA Form Updates

The U.S. Department of Labor (“DOL”) recently issued several updated forms for implementing the Family and Medical Leave Act. These forms were issued with the stated purpose of assisting employees, employers and other stakeholders with completing implementation of the FMLA in the workplace. The FMLA entitles eligible employees up to twelve (12) weeks of unpaid leave for various specified health or care of family reasons. The ultimate goal of this update is to enhance user and employer ease, comprehension, and completion of the forms.

What Are The Forms?

The updated forms provide additional questions for the user to answer and provide additional information, while retaining the substance of the forms. An overview of the updates to the forms follows:

• Incorporation of the Notice of Eligibility and the Notice of Employees Rights and Responsibilities under the FMLA into one form, aiding employees’ knowledge of their eligibility status and privileges and duties during FMLA leave.
• The FMLA Designation Notice, an important form that allows employees to know whether their leave will fall under the reach of an FMLA designated leave.
• Changes to the Certification of Health Care Provider for Family Member’s Serious Health Condition form. This form now requires a more detailed description from the health care provider regarding the employee’s limits as a result of a sick family member, making it less likely employees will have to provide supplements to the information provided. Changes to the Certification of Health Care Provider for Employee’s Serious Health Condition form. This form requires a more detailed description from the health care provider regarding the employee’s work-limitations. This makes it easier for employers to understand the limitations of the employee where there are limitations, and less likely employees will have to provide supplemental information.

The Department of Labor has deemed these forms to be compliant with the FMLA. However, employees should be aware that the use of these model forms is optional, and employers are free to use their own forms, so long as they too are in compliance with the FMLA. These forms are located on Department of Labor’s website.

Have questions about whether your employer is properly implementing the FMLA? Give us a call for a free consultation.

– Jacob Mikalov

The State of Stripping: Employee Misclassification at the Club

Employee misclassification is one of the most commonplace ways employers participate in wage theft. In many industries, this means classifying workers as independent contractors despite holding them to employee-specific standards. The strip club industry is rampant with this type of misclassification, with a recent statistic showing that at least one dancer files against their employer for misclassification every four days. Dancers have been fighting and organizing for better working conditions for decades. The COVID-19 pandemic has introduced another layer of hazard to the field. With the misclassification of many dancers as independent contractors came the inability to receive unemployment at the beginning of the pandemic. Many IC’s were left without income before the CARES Act. The Act gave each state the ability to expand benefits to independent contractors.  However, the Act does not undo the decades of work and struggle many in the industry have endured.

Return to Work, Risk, and Reward

When reopening began, strip clubs were on standby until they were able to introduce additional safety protocols for patrons and dancers. Clubs began to impose new rules regarding contact with customers, socially distanced dances, and masks. These rules, while intended to protect both customers and dancers, brought additional hardship into the workplace. Many dancers already struggle with mistreatment from management and patrons alike prior to the pandemic. Multiple lawsuits have been brought against clubs regarding treatment of African-American dancers and sexual abuse, while a plethora of stripper-run blogs report on individual dancer mistreatment. Many dancers have reported that clubs are reporting higher turnout rates than usual. This increase in contact (even with social-distancing measures) increases potential exposure to the virus, on top of other workplace risks dancers are already exposed to.

At the beginning of the pandemic, a video went viral of dancer Genea Sky falling from a pole while working at XTC Cabaret. Genea did not have any accident insurance provided to her as an independent contractor at the club. She did not have insurance or other legal protections. Crowd-sourcing her medical expenses helped Genea during crisis, as has been many American’s experiences during the COVID-19 pandemic. Her status as an independent contractor, rather than an employee, at the time of her fall prevented her from receiving benefits and protections from the club.

The additional risk of contracting COVID-19 into the club setting without a promise of medical care, FMLA, or other resources many employees have access to shows a dangerous bind that many dancers face. The historic lack of protections for gig workers and independent contractors have sparked unionization efforts for decades, and the strip club industry has remained at the forefront. The ongoing effort to unionize strip clubs throughout America has grown increasingly vital during the pandemic, and the forward momentum for the movement does not seem to be slowing down.

Dancer Unionization Efforts: Then and Now

In early August of 2020, a ruling from the National Labor Relations Board determined that a Columbus, Ohio dancer was, in fact, a statutory employee under Ohio  Law.  The dancer, Brandi Campbell, was involved in many lawful union organizing efforts at a variety of strip clubs throughout years. Her termination shortly after her hiring at Centerfold was for an apparent no-touching violation. This ruling came in a crucial moment in the strip club labor organizing movement. As previously mentioned, when states like Ohio began rolling out phase-based reopening plans, many dancers found themselves in an increasingly difficult position: return to work with few protections, or stay home and lose their Pandemic Unemployment Assistance (PUA) benefits? Along with many other service industry workers, many dancers made the difficult decision to put their well-being on the line and return to work. These factors, combined with the years of hard work and labor organizing done by strippers across the nation, have brought opportunity for change and protection in the industry.

The efforts put for to organize exotic dancers and adult entertainers are pivotal in combating employee misclassification. All workers deserve fair pay and protection, and dancers are no exception. In times like these, worker solidarity is crucial to protecting the American people across industries.