You're never too small to have an HR department

43 percent of American employees work for companies with 50 or fewer employees. I raise this statistic because it is almost a guarantee that many of these small businesses operate without a dedicated HR department or HR personnel.

Earlier this month, the EEOC settled a sexual harassment and retaliation lawsuit it had brought against several IHOP franchises operating in New York and Nevada. The allegations were truly awful, including misbehavior such as unwanted touching of female employees' buttocks and genitalia, graphic comments about sexual genitalia, invitations to engage in intercourse, and vulgar name calling, perpetrated by both managers and co-workers.

WIRTW #543 (the “terrible, horrible, no good, very bad day at the office” edition)

What was your worst day at work? Does it top the day that Cleveland criminal defense attorney Aaron Brockler had this past Tuesday?

I'll let Cleveland.com explain what happened:

A Warrensville Heights man shocked a courtroom full of spectators Tuesday when he sucker-punched his own defense attorney after a judge sentenced him to 45 years in prison…. Cuyahoga County sheriff's deputies took down David Chislton after the 42-year-old struck lawyer Aaron Brockler in the face with both of his handcuffed fists.

A courtroom deputy's body camera recorded the attack.


Brockler, who suffered injuries to his face and a possible concussion, at least kept his sense of humor, joking to reporters,"It was pretty fun."

File this one under why I don't practice criminal law.

Here's what I read this week:

If you want to stop workplace harassment, start by educating our children

How soon is too soon to start talking about harassment?

If we're talking about your workplace, the correct answer is that it's never too soon. You should start talking to your employees about your anti-harassment / anti-bullying / respectful workplace policies, expectations, and culture on Day One. A discussion should be part of each new hire's on-boarding and orientation.

What about outside of your workplace?

The 6th nominee for the “worst employer of 2019” is … the diverse discriminator

How many different ways can one employer discriminate? How about eight.

The EEOC recently settled a national origin and disability discrimination lawsuit against a staffing agency, brought on behalf of a group of Latino employees working at an Alabama poultry plant.

The FMLA does not require that an employee use magic words to request leave

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.

Do you know how to spot an employee at risk for violence?

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.

WIRTW #542 (the “Scared. Ashamed. Crippled.” edition)

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. 

Here's what else I read this week: