According to the FMLA's regulations, "When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA." Courts do not interpret this burden as a heavy one. An employee need not use the letters "F-M-L-A," or any other magic words to request leave under the statute. As long as the employee provides enough information for the employer to reasonably conclude that
an FMLA event described has occurred, the employee has met his or her obligation to provide notice of a request for an FMLA-qualifying leave.
What does this look like in practice? Consider the following two examples.
Early Friday afternoon, Henry Pratt Co. informed one of its employees, Gary Martin, of his termination. Shortly thereafter, he opened fire with a .40-caliber Smith & Wesson, killing five of his co-workers and wounding five police officers. Martin himself was the sixth casualty, killed in a shootout with police.
After the news of this tragedy broke, reports surfaced of Martin's history of violence—six prior arrests by the local police department for domestic violence, and a decades-old felony conviction for aggravated assault.
All of which begs the question, should this employer have known that Martin was prone to violence, and, if so, should it have taken added measures in connection with his termination.
A few days ago, Mark Goldstein, an attorney at Reed Smith, tweeted me (and others) this:
If you read on thing this week, read Mark's article, 'Scared. Ashamed. Crippled.': How One Lawyer Overcame Living With Depression in Big Law. We are in the middle of a mental health crisis in America. The more we talk openly about it, the more it becomes de-stigmatized, and the more comfortable those suffering will be to come forward and seek the help they need. It took a lot of courage for Mark to write this article. If you are suffering with mental health issues, or know someone who is, use Mark's example to ask for help. As Mark says, "You are not alone." We are here to help you, and will gladly do so, without judgment or scorn.
Just in time for Valentine's Day, I bring you the story of a employee rumored to be sleeping with her boss to get a promotion. She wasn't, but the workplace rumor mill sure thought she was.
The way we work in America is changing. The relationships between companies and their workers are more fluid and varied than in decades past. Our task in this appeal is to apply traditional legal protections to one such relationship.
So starts the 6th Circuit's opinion in Acosta v. Off Duty Police Servs., which applies the traditional "economic realities" test to determine whether private security and traffic control officers are employees or independent contractors.
One would think that with such a pronouncement at the head of the 6th Circuit's opinion, the court would be making a startling pronouncement broadening the landscape of who qualifies as an independent contractor. Those making that assumption, however, are sorely mistaken.
Does an employer have an obligation to return an employee to work following an extended unpaid leave of absence granted as a reasonable accommodation under the ADA?
You might be inclined to say, "Of course." The answer, however, is nuanced, and depends on the length of the leave, the composition of your workforce at the time the employee seeks to return to work, and your efforts to engage in the ADA's interactive process with the employee during the leave.
Law.com recently pronounced, "The Emojis are Coming!" That article got me thinking, are they coming to workplace litigation, too? After all, emojis are a form of communication, and work is all about communication. Which would suggest that we would start seeing them in harassment and discrimination cases.
According to Bloomberg Law, mentions of emojis in federal discrimination lawsuits doubled
from 2016 to 2017. Let's not get crazy. The doubling went from six cases to 12 cases. But, a trend is a trend.
Purl is an online-only Pixar short about a ball of yarn appropriately named Purl who gets a job in a bro-tastic workplace. As the only female, and only ball of yarn, working at B.R.O. Capital, she struggles to fit and yearns for acceptance from her all male, all human, co-workers. Purl's story has a lot to say about diversity and inclusion, and is well worth the just under nine minutes of your time.
The Report identifies five common cybersecurity risks and outlines recommended practices for each:
Branch controls
Phishing attacks
Insider threats
Penetration testing
Mobile devices
While FINRA only regulates securities firms, the five topics its Report covers should be required reading for any employer that wants to
understand how to implement cybersecurity best practices.
Yesterday was the 26th anniversary of the Family and Medical Leave Act being signed into law. During last night's State of the Union Address, President Trump called for Congress to make paid family leave a federal law.
I am also proud to be the first president to include in my budget a plan
for nationwide paid family leave — so that every new parent has the
chance to bond with their newborn child.
As many as 60% of employees who are laid-off, fired, or quit admit to stealing company data. Sometimes, they download information on their way out the door. Sometimes they email information to a personal email account. And sometimes they simply fail to return a company laptop or other device that contains the data. In the latter case, it costs an average of $50,000 for an employer to replace a stolen computer, with 80% of that cost coming from the recovery of sensitive, confidential, and proprietary information.
When you put this data together, it becomes increasingly apparent that businesses must take proactive steps to protect their technology and data.
The one question people ask me more than any other about this blog? "How do you write every day?"
My answer, "Because I love it."
The practice of law, for all of its challenges and rewards, can be mundane. This blog lets me be creative. I love the creativity of sharing information in a manner that makes it accessible and entertaining. If I didn't love this creative process, this blog would have died long ago, instead of just having passed 3,000(!) posts since it's inception nearly 12 years ago.
It is because of my love of this creative process that I implore you to check out Rhett Miller's new podcast, Wheels Off. It's conversations with creative people about their creative processes. Each of the first three episodes are outstanding listens, but my favorite thus far, the most interesting and engaging discussion, is Rhett's talk with Rosanne Cash. (Labor law bonus points for Cash, who discusses the musical she's writing based on the story of famous union organizer Norma Rae.)
The earnestness and passion of each as they share why they create as their careers is genuine and moving.
If you create anything in your lives, either as a vocation or avocation, or have any interest at all in those who do, I implore you to subscribe to Wheels Off in your podcast app of choice, and add each episode to your weekly listen.
All the way back in October 2014, I wrote about an Illinois Jimmy John's franchisee that had required all of its employees to sign a Non-Compete Agreement as a condition of employment. I was not kind to this employer:
It's
one thing to bind your managers and other high-level employees to a
noncompetition agreement. It's another to require the same of your
low-level sandwich makers and cash-register operators. The lower down
the food chain you move, the harder it becomes to enforce these
agreements.… [W]e're talking about sandwiches. What's
the legitimate business interest this employer is trying to protect?
Yet, in the nearly half-decade since, employers have not heeded my advice. And, when employers fail, legislatures sometimes step in to fix.
How frigid are the temperatures going to be in Northeast Ohio today? Just about everything is closed. Even the post office suspended mail delivery. Just because you remain open for business does not mean that your employees will be in a position to get to work. Pipes burst. Furnaces break. Cars die. And with schools closed, many parents need to remain home with their children.
In light of these historically low temperatures, here are five key considerations for workplace severe-weather policies, including including how to handle issues such as attendance, wage and hour, and telecommuting:
The distinction between employees and independent contractors is one that still confounds employers. It is a vitally important distinction, because key employment laws, such as anti-discrimination laws, wage and hour laws, and labor laws do not apply to independent contractors.
Big week in our house, as our 12-year-old daughter just had her first official press. Cleveland's Scene Magazine interviewed her for this week's cover story, on Cleveland-area cover bands.
Needless to say, she was pretty jazzed about the whole experience.
And, she impressed the hell out of me:
Each new generation is also embracing classic rock—and some are even
taking an open-minded perspective on the sonic opportunities afforded by
cover bands. "People like seeing them because it's music that they can
relate to that they've heard before," says Norah Hyman, the 12-year-old
vocalist for Fake ID…. And, perhaps unsurprisingly given Hyman's generous perspective, Fake ID are putting their own spin on things.
"We tend to change in the songs to make it more difficult
for us," Hyman says. "A lot of the vocal stuff, [my bandmates] let me
decide what I want to do with it." Such freedom has helped improve her
vocal technique, namely by showing her she doesn't have to add "grit" to
her singing voice. "Now I'm able to put my own touch on the songs
instead of copying them."
I spent my day yesterday mediating a case before the Ohio Civil Rights Commission. The mediation took place in a conference room on the 8th floor of the state office building in downtown Cleveland. The hardest part of my day? Believe it or not, it was simply getting to the mediation.
Union membership numbers for 2018 are out, and while most employers should be encouraged, Ohio employers might think otherwise.
In Ohio, the percentage of workers belonging to unions is at 12.6
percent, up 0.1 percent from 2017. Nationally, union membership sits at
10.5 percent, down ever so slightly from 2017. In other words, Ohio’s union
representation is both greater than, and growing faster than, the
national average.
According to the FMLA's regulations, "When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA." Courts do not interpret this burden as a heavy one. An employee need not use the letters "F-M-L-A," or any other magic words to request leave under the statute. As long as the employee provides enough information for the employer to reasonably conclude that
an FMLA event described has occurred, the employee has met his or her obligation to provide notice of a request for an FMLA-qualifying leave.
