The Employment Law Authority – January/February 2015

In This Issue:

– High Tech, High Risk: Protecting Health Plan Data: Recent Cyber Attack Reminds Employers to Take Swift Action

– EEOC FY 2014 Statistics Are Here: What Do They Mean for Employers?

– State Round-Up

– Promulgating Employee Conduct at Work: Avoiding Common Policy Land Mines

– Supervisor’s Knowledge of Unreported Overtime May Lead to FLSA Liability: Court Finds Employer May Not Assert Equitable Defense in Such Cases

– It’s Time to Post the OSHA 300A Annual Summary

– Delegation: Ask Permission, Beg Forgiveness, or Practice “Per-Giveness”?

– “15-Month Lapse” Until Adverse Action Does Not Bar Retaliation Suit: Court Finds Employer’s Reason for Refusing to Rehire Worker Was Pretextual

– Excerpt from High Tech, High Risk: Protecting Health Plan Data:

On February 5, 2015, Anthem Blue Cross and Blue Shield, one of the largest health insurers in the country, notified its policyholders, members, and business partners that it was recently the target of an external cyber attack that appears to have comprised the confidentiality of medical and other personal information maintained on its information technology (IT) system. The information at issue included names, birth dates, medical identification numbers, Social Security numbers, addresses, employment information, and other similar information of more than 80 million current and former members. The notices that Anthem delivered to those potentially affected by the attack indicate that this attack did not compromise medical or credit card information.

Please see full Newsletter below for more information.

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EEOC FY 2014 Statistics Are Here: What Do They Mean for Employers?
by Evan J. Shenkman, Ogletree Deakins (Morristown)
The U.S. Equal Employment Oppor-
tunity Commission (EEOC) just released
its fi scal year (FY) 2014 enforcement and
litigation statistical report for the private
sector. Presented annually, the report al-
ways contains some nuggets for employ-
ers and employment attorneys, and this
year is no exception.
Key Statistics
Among the FY 2014 highlights are
the following statistics:
• The EEOC received 88,778 charges
in FY 2014—about a 5 percent reduction
from FY 2013. The EEOC attributes this
decrease, in part, to a government shut-
down during a portion of the fi scal year.
• For the sixth year in a row, retali-
ation-based charges were the most com-
mon. At 42.8 percent of all charges fi led,
retaliation claims are at their highest
percentage in history. Race discrimina-
tion, sex discrimination, and disability
discrimination charges rounded out the
top four in terms of prevalence, as they
did in FY 2013, while charges based on
genetic information brought under the
Genetic Information Nondiscrimination
Act (GINA) remained the rarest, at only
0.4 percent of all charges.
• The number of discharge- and disci-
pline-related charges dropped slightly—
roughly 3 percent from FY 2013, though
discharge remained the most common
issue among all EEOC charges. Harass-
ment-related charges were the second
most common, increasing by 3 percent
from FY 2013. Some increases and de-
creases were far more eye-opening:
(1) Charges alleging discriminatory
advertisements more than doubled, from
49 to 121. Most were age-related claims.
(2) Charges based upon allegedly un-
lawful waivers rose from 31 to 85.
(3) Charges based on employment test-
ing increased from 157 to 231.
(4) Charges based on early retirement
incentives climbed from 28 to 52.
• The overall percentage of “reason-
able cause” fi ndings (an initial fi nding in
favor of the employee) dipped from 3.6
percent to 3.1 percent in FY 2013, rep-
resenting the lowest percentage of cause
fi ndings in the 18-year period tracked by
the EEOC. Compare this to the nearly 10
percent of charges that led to probable
cause fi ndings in 2001.
• On a state-by-state basis, Texas
employers continued to face more EEOC
charges than all others with 8,035 charges,
refl ecting 9.1 percent of all charges fi led
in the nation. Employers in Florida, with
7,528 charges, and California, with 6,363
charges, rounded out the top three for the
third year in a row.
• Claimants recovered $296.1 mil-
lion in FY 2014 via the EEOC’s admin-
istrative process—a decrease of $75.9
million from FY 2013.
• The EEOC filed 133 merits law-
suits (two more than the prior fi scal year),
with the vast majority—76 suits asserting
claims under Title VII of the Civil Rights
Act, 49 suits under the Americans with
Disabilities Act, and 12 suits under the
Age Discrimination in Employment Act.
GINA suits remain sparse: the EEOC
fi led its fi rst three suits asserting GINA
claims in FY 2013, but only fi led two suits
asserting GINA claims in FY 2014.
• The EEOC resolved only 144 law-
suits—compared to 222 suits resolved
in FY 2013—and received $22.5 million
in monetary benefits from settlements
and awards, as compared to $38.6 million
in FY 2013.
Key Takeaways
Prudent employers should refl ect upon
the EEOC’s FY 2014 data and incorporate
some lessons learned. At a minimum, em-
ployers should provide suffi cient training
on retaliation, as the prevalence of those
charges remains at a historic level. The
training should drive home the point that
even if an employee’s complaint is with-
out merit, retaliation is unacceptable and
Further, periodic, comprehensive ha-
rassment training remains critical, par-
ticularly as those charges remain among
the most prevalent and most diffi cult to
dismiss for lack of probable cause. Em-
ployers in states with greater EEOC activ-
ity, such as Texas, California, and Florida,
should proceed with even greater caution.
With an increasing number of claims
based on allegedly unlawful advertise-
ments (most, age-based), HR departments
should consider reviewing all advertise-
ments in advance of publication to ensure
that unlawful preferences (age-based, gen-
der-based, etc.) are excluded. Employers
should ensure that their HR or legal de-
partments review any employee waivers,
early retirement programs, and employee
testing systems, as claims related to these
initiatives are on the rise.
Finally, employers should compare
their own statistics to the EEOC’s data,
both on a regional and national basis. If
the results are dramatically different in
one or more locales, or for one or more
charge types, a problem might exist that
calls for enhanced training or targeted
personnel actions.
3January/February 2015
State Round-Up
Ogletree Deakins State Round-Up
*For more information on these state-specifi c rulings or developments, visit
On January 8, the Califor-
nia Supreme Court issued
a decision holding that
the on-call hours for security guards
who work 24-hour shifts constitute
compensable hours worked. The jus-
tices agreed with the Court of Appeal’s
fi nding that the guards were entitled to
compensation because the employer
“substantially restricted” their ability
to engage in personal activities. Men-
diola v. CPS Security Solutions, Inc.,
No. S212704 (January 8, 2015).
The Eleventh Circuit
Court of Appeals rejected
a suit brought by a Georgia
trucker who alleged that he was fi red
in violation of the ADA. The court held
that the trucker was no longer quali-
fi ed for his job based on his week-old
diagnosis of chronic alcohol depen-
dence. Jarvela v. Crete Carrier Corp.,
No. 13-11601 (January 28, 2015).
On January 13, the Florida
Department of Revenue’s
General Tax Administra-
tion and the U.S. Department of Labor’s
Wage and Hour Division entered into
a memorandum of understanding in
which they agreed to share information
on independent contractor misclassifi –
cation and coordinate law enforcement
efforts in this area. Over one-third of
the United States has entered into sim-
ilar agreements in efforts to stave off
misclassifi cation.
A recent amendment to the
Illinois Human Rights Act
expands the Act’s protec-
tion against sexual harassment to unpaid
interns. The amendment, which applies
only in the sexual harassment context,
defines “unpaid intern” and lists cri-
teria to determine whether a position
qualifi es as an unpaid internship. This
amendment went into effect on Janu-
ary 1.
The Seventh Circuit
Court of Appeals reject-
ed a lawsuit brought by a
59-year-old substance abuse counselor
who was previously employed by the
Indiana Department of Corrections.
The court found that the worker fail-
ed to show that the private contractor
that took over prison counseling ser-
vices did not hire her based on her
age or sex. Ripberger v. Corizon, Inc.,
No. 13-2070 (December 10, 2014).
The Missouri Court of
Appeals recently issued
an opinion that continues
the trend in the state of restricting the
enforceability of arbitration clauses.
In the January 13 decision, the court
held that at-will employment—even
“new” or “future” employment—does
not constitute valid consideration nec-
essary to form a contract. Jimenez v.
Cintas Corporation, Nos. ED101015,
ED101241 (January 13, 2015).
In one of his last acts as
governor, former Gover-
nor Deval Patrick signed
into law on January 7, an amendment
to the previous Massachusetts Mater-
nity Leave Law that extends eight
weeks of unpaid leave to both male
and female employees to care for a
newborn, newly placed, or newly ad-
opted child.
The city of Eugene, Ore-
gon recently released the
proposed rules to the man-
datory paid sick leave ordinance that
it passed last year, which will take ef-
fect in July 2015, or on October 1 if
the state legislature passes a statewide
sick leave law. Under the proposed
rules, any employee who works within
Eugene will accrue paid sick leave at
a rate of at least 1 hour for every 30
hours worked. This accrual will begin
on the employee’s fi rst day of work.
The Tennessee Department
of Labor and Workforce
Development’s Division
of Occupational Safety and Health has
adopted the new federal rules on inju-
ry reporting. While the federal OSHA
revised rule took effect on January 1,
2015, the rule will not become effec-
tive in Tennessee until February 24,
2015. The state also has plans to allow
employers to report workplace injuries
The Supreme Court of
the Virgin Islands recent-
ly held that the Wrongful
Discharge Act provides a remedy not
only when an individual is discharged
or resigns under circumstances that
are alleged to constitute a constructive
discharge, but also when the individu-
al is demoted from a previously held
position. Rennie v. Hess Oil Virgin Is-
lands Corp., No. 2014-0028 (February
6, 2015).
VIRGIN ISLANDS*The New Jersey Supreme
Court recently issued a
landmark ruling that will
reshape hostile work environment sex-
ual harassment cases brought under
the New Jersey Law Against Discrimi-
nation. The justices expanded the defi –
nition of a “supervisor” for purposes
of hostile work environment claims un-
der state law and adopted the Faragh-
er/Ellerth affi rmative defense. Aguas v.
State of New Jersey, A-35-13 (February
11, 2015).
On February 12, Phila-
delphia Mayor Michael
Nutter signed legislation
requiring certain employers to provide
up to fi ve days of paid sick leave each
calendar year to their employees. The
ordinance, titled “Promoting Healthy
Families and Workplaces,” goes into
effect on May 13, 2015.
4 Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
January/February 2015Traditional Labor
* Thomas Stanek is a shareholder and
Sasha Meschkow is an associate in
the Phoenix office of Ogletree Dea-
kins. Both attorneys represent employ-
ers in labor and employment related
“The NLRB remains increasingly critical of policies that
seek to limit employee expression in the workplace.”
Promulgating Employee Conduct at Work: Avoiding Common Policy Land Mines
by Thomas M. Stanek and Sasha H. Meschkow*
With ever-changing developments in
social media, employers are often con-
cerned with ways in which they can mon-
itor off-duty employee conduct. How-
ever, employers often lose sight of how
policies that seek to control employee
conduct on the job or in the workplace
may run afoul of National Labor Rela-
tions Board (NLRB) precedent. This
article highlights a common policy land
mine—as recently applied to a Fortune
500 company—and how to revise that
policy to minimize future risk of unfair
labor practice charges.
Finding the Land Mine:
Defi ning Section 7 Activity
Section 7 of the National Labor Re-
lations Act (NLRA) permits employees,
including non-union employees, to en-
gage in certain protected concerted ac-
tivity. This activity generally includes
employee expression of workplace con-
cerns, such as wages, hours, and other
terms and conditions of employment.
This expression can take many forms,
including verbal communication between
employees that is of a soliciting nature
(often referred to as “solicitation”) or the
distribution or dissemination of written
materials from one employee to another.
As demonstrated below, the NLRB
remains increasingly critical of policies
that seek to limit employee expression in
the workplace and thus function to limit
the expression of workplace concerns.
Mercedes-Benz: Narrowly-
Tailored Policies
In its recent ruling in Mercedes-Benz
U.S. Int’l Inc., 361 NLRB No. 120 (2014),
the NLRB reaffirmed its nuanced ap-
proach to solicitation and distribution
rules and affirmed the administrative
law judge’s (ALJ) finding that Mer-
cedes-Benz’s policy violated the NLRA
where the policy was not discretely-tai-
lored to prohibiting employee solicita-
tion in working areas only during work-
ing time.
Mercedes-Benz’s handbook policy
stated in relevant part: “[The Company]
prohibits solicitation and/or distribu-
tion of non-work related materials by
Team Members during work time or in
working areas.”
The ALJ found, and the Board affi rm-
ed, that the policy violated the NLRA
because it could be construed by em-
ployees as prohibiting solicitation in
work areas even if the employees at is-
sue were not on working time. The ALJ
also rejected Mercedes-Benz’s argument
that the policy could not be construed
as impeding Section 7 rights because its
employees routinely solicited on non-
working time without interference. De-
spite his conclusion that Mercedes-Benz
routinely allowed solicitation during
non-working time, the ALJ concluded
that the policy was unlawful because
maintenance of the rule, even without
enforcement, violated the NLRA.
Finally, the ALJ concluded Mer-
cedes-Benz did not intend its rule to
be construed in any way which discour-
aged Section 7 activity; however, be-
cause under relevant NLRB precedent
the employer’s intent is not relevant in
determining whether a policy is unlaw-
ful, such intent was insufficient to pre-
clude a finding that the policy violated
the NLRA.
The ALJ also found, and the NLRB
affirmed, that Mercedes-Benz had vio-
lated the NLRA when it prohibited em-
ployees from distribution in particular
areas of the facility. As a general rule,
employers may lawfully prohibit employ-
ees from distributing literature in work
areas to prevent hazard to production.
However, this principle does not apply
to “mixed use areas”—areas that in-
clude both work matters and non-work
The areas at issue for Mercedes-Benz
• The team center—an area that en-
compassed the employees’ break and
eating area, and housed the team leaders’
offi ces, fi ling cabinets, and various equip-
ment; and
• The facility’s atrium—the prima-
ry means of egress and ingress into the
facility, which also included a security
kiosk, a storefront that sold merchan-
dise to employees and visitors, the facili-
ty’s medical offi ce, and a vehicle leasing
The ALJ concluded that the company’s
team center and atrium were mixed use
areas for which it had not presented any
special circumstances justifying the pro-
hibition of distribution.
Key Takeaways
In light of the NLRB’s nuanced ap-
proach, employers should review and
revise internal solicitation and distri-
bution policies to ensure they are nar-
rowly-tailored in accordance with this
Employers also should avoid getting
caught in the “mixed use area” trap by:
• Identifying areas in which work and
non-work activities take place, such as
hallways, common meeting spaces, and
shared break rooms; and
• Revising policies to exempt such
areas from any distribution prohibition
or identify special circumstances, such
as the hindrance of production or cer-
tain equipment or machinery, that may
result from distribution in that specific
The NLRB’s regulation of basic work
policies is just one of many topics that
will be covered at this year’s Not Your
Father’s NLRB—The Era of Ambush
Elections on March 26-27, 2015, at the
Fairmont Chicago. Attendees will re-
ceive information from experienced
practitioners about the latest develop-
ments and practical tips to help pro-
tect their organizations. For more infor-
mation or to register for this program,
call (866) 964-6303 or visit our website
5January/February 2015
Wage & Hour
Supervisor’s Knowledge of Unreported Overtime May Lead to FLSA Liability
Court Finds Employer May Not Assert Equitable Defense in Such Cases
A federal appellate court recently
held that if an employer knew—or had
reason to know—that an employee has
underreported his or her work hours, the
employer cannot escape liability under
the Fair Labor Standards Act (FLSA) by
asserting that the employee purposely re-
ported his or her work hours incorrectly
and therefore has “unclean hands.” Ac-
cording to the Eleventh Circuit Court of
Appeals, “[b]arring FLSA actions for
wage and overtime violations where the
employer is aware that an employee is
underreporting hours would undermine
the Act’s deterrent purpose.” Bailey v. Ti-
tleMax of Georgia., Inc., No. 14-11747,
Eleventh Circuit Court of Appeals (Jan-
uary 15, 2015).
Factual Background
Santonias Bailey worked at a TitleMax
store in Jonesboro, Georgia, for under a
year. Bailey alleges that during that time,
he worked overtime hours that he did not
report and for which he was not paid.
Bailey claimed that he worked “off
the clock” because his supervisor told
him that TitleMax “does not allow over-
time pay” and that he was encouraged
not to report overtime hours when record-
ing his work time. Bailey further alleges
that his supervisor changed his hours, at
one point adding an unpaid lunch hour
when, in fact, Bailey claims to have
worked through his lunch break.
After he resigned from TitleMax,
Bailey filed a lawsuit under the FLSA
for unpaid overtime. A trial judge grant-
ed TitleMax’s request to dismiss the
case, after fi nding that the company had
asserted a valid equitable defense—that
Bailey had violated company policies
requiring accurate time entries by em-
ployees—which barred his FLSA claim.
Bailey appealed this decision to the
Eleventh Circuit Court of Appeals.
Legal Analysis
The FLSA requires employers to pay
nonexempt employees at least one-and-
one-half times the employees’ regular
hourly wage for every hour worked in
excess of 40 hours in one week. Courts
regularly have noted that the goal of the
FLSA is to counteract the inequality of
bargaining power between employees
and employers.
On appeal, the Eleventh Circuit re-
versed the trial judge’s decision, holding
that once an employee has established
that he or she has worked overtime with-
out pay and that the employer knew—or
should have known—that overtime was
worked no “equitable” defenses can
be asserted to defend against the FLSA
An equitable defense shifts most or
all of the responsibility to the employ-
ee. In this case, TitleMax claimed that
Bailey had not followed the company’s
policy requiring the accurate report-
ing of time records, and/or should have
complained about his supervisor’s direc-
tives about working unpaid overtime.
The Eleventh Circuit rejected those
equitable defenses, finding that the ev-
idence that Bailey’s supervisor knew
of the underreporting precluded the
company’s assertion of the equitable
defenses. To do otherwise, the court
found, would contravene the purpose
of the FLSA and would allow an em-
ployer to rely on written policies regard-
ing accurate reporting, while allowing
supervisors to undermine those policies
by encouraging—or even requiring—
Practical Impact
According to Maria Danaher, a share-
holder in the Pittsburgh offi ce of Ogletree
Deakins, “While the Eleventh Circuit’s
ruling does not ensure the worker’s suc-
cess at trial, it seems to create another
level of diligence for employers. This
holding goes beyond the FLSA’s re-
quirement that employers have policies
and procedures for ensuring the accurate
reporting of work hours, and imposes an
affirmative duty on employers to make
certain that supervisors and managers do
not make statements that contradict those
It’s Time to Post the OSHA 300A Annual Summary
The Occupational Safety and Health Administration’s (OSHA) Form 300A,
which lists a summary of the total number of job-related injuries and illnesses that
occurred during 2014 at each workplace, must be posted between February 1 and
April 30, 2015. The summary must be placed in a conspicuous location where
notices to employees are usually posted, and the posting cannot be altered, defaced,
or covered by other material.
The summary must include the total number of job-related injuries and illnesses
that occurred in 2014 and were logged on OSHA Form 300, Log of Work-Related
Injuries and Illnesses. To assist in calculating incidence rates, the form requires
information about the annual average number of employees and total hours worked
during the calendar year. If there were no recordable injuries or illnesses in 2014,
employers may enter “zero” on the total line.
A company executive must sign and certify the form. This can include: (1) any
offi cer of the corporation; (2) the highest-ranking company offi cial working at the
establishment; (3) the immediate supervisor of the highest-ranking company offi cial
working at the establishment; or (4) an owner of the company (permitted only if the
company is a sole proprietorship or partnership).
Employers with 10 or fewer employees and employers in certain industries are
normally exempt from federal OSHA injury and illness recordkeeping and posting
requirements, including the annual Form 300A posting. A list of exempt industries
can be found on OSHA’s website. The Bureau of Labor Statistics, however, may
still select exempted employers to participate in an annual statistical survey.
More importantly, all employers covered by OSHA must report work-related
employee fatalities to OSHA within eight hours. Effective January 1, 2015, all
work-related in-patient hospitalizations, amputations, or losses of an eye must
be reported within 24 hours. Employers who contact an OSHA Area Offi ce and
are not able to speak directly to a person should call OSHA’s national hotline at
800-321-6742. OSHA is preparing to implement an online reporting form, but it is
not currently available.
6 Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
January/February 2015Data Privacy
continued from page 1
that would constitute a breach for pur-
poses of the Health Information Technol-
ogy for Economic and Clinical Health
(HITECH) Act and HIPAA. In such a
situation, state-level breach notifi cation
laws also are likely to be implicated.
Employers’ Obligations
As employers consider how to re-
spond on behalf of their health plans, it
is important to note that employers’ obli-
gations will depend on the nature of the
relationship between the employer and
its health plan, and the insurer or TPA.
• Insured Plan—If the plan is insured,
the insurer is the covered entity responsi-
ble for investigating the situation, under-
taking appropriate mitigating measures,
and providing all required notices to plan
participants, regulators and, in some in-
stances, the media.
• Self-Funded Plan—If the plan is
self-insured, the responsibility for inves-
tigating a breach and providing any re-
quired notice, by default, falls on the plan
and the employer as its sponsor. If, as is
typically the case, however, the employer
has outsourced the claims administration
role, the TPA may have the contractual
obligation for assessing and responding
to the breach. At a minimum, the TPA
will have a notice obligation to the plan/
employer and a responsibility to provide
details surrounding the breach. Employers
should review the relevant contract docu-
ments and determine where responsibility
for response, remedial, and notifi cation
measures rests.
For life insurance and other non-
health coverage and benefi t services that
Anthem offers, HIPAA and HITECH
may not apply. However, when crafting
a response, employers should consider
their role as a fi duciary of the benefi t plan
as well as employee relations. It may be
prudent for an employer to reach out to
employees, sharing information sent by
Anthem regarding the breach, as well as
follow up with Anthem representatives
to get a better understanding of how the
breach is being addressed.
In all cases, under state breach no-
tification laws, generally the party that
held the data when the breach occurred
is responsible for issuing the notice.
State laws govern who must provide no-
tice and defi ne the contents and recipients
of such notices. Accordingly, employers
should identify the implicated states
and comply with their obligations in the
relevant jurisdictions.
Action Items for Employers
Initial action items for employers in
this situation include the following:
• Define the relationship between
the employer’s health plan and Anthem.
Is Anthem acting as an insurer or as a
TPA for the plan?
• If the plan is insured, the notifi-
cation obligation resides primarily with
Anthem, and based on Anthem’s public
communications thus far, it appears that
Anthem is proceeding with the mitiga-
tion and notice process already. In addi-
tion to notifying the affected individuals,
employers should review their insurance
contract documents and evaluate their
provisions regarding data privacy and
security. Ultimately, if the plan is fully
insured, Anthem should be responsible
for HIPAA and HITECH compliance and
the proper issuer of notices under state
data breach laws.
• If the plan is self-insured and An-
them serves as TPA, the employer should
closely examine its service contract and
“business associate agreement.” In par-
ticular, the employer should focus on the
breach assessment and notice provisions
and determine who is responsible for
evaluating possible breaches and issu-
ing required notifi cations to the affected
individuals. The employer should ex-
amine the information that Anthem has
provided regarding its handling of the
breach and make sure that those actions
coincide with the contractual provisions,
HIPAA, HITECH, and applicable state
breach notifi cation laws.
• If the employer retains responsi-
bility to provide the required notice, de-
termine whose data was compromised,
identify the actions required to protect
the data and mitigate harm, and prepare
the notices necessary to comply with
the plan’s obligations under HIPAA and
state law. The employer will likely need
to work with Anthem to collect the de-
tailed information necessary to prepare
the required notices, and Anthem has an
obligation to provide the employer with
that information.
• Consider additional steps the em-
ployer should take to mitigate any harm
caused by the breach. Review the ser-
vice agreement and business associate
agreement for any provisions govern-
ing mitigation obligations and indemni-
fi cation clauses for the employer’s abil-
ity to recover for costs related to the
Although Anthem was the victim of
this particular cyber attack, recent large-
scale data breaches with major retailers
and financial institutions demonstrate
that all forms of sensitive personal in-
formation can be vulnerable to exploita-
tion, and the employee benefi ts world is
certainly not immune from these chal-
lenges. Other major health insurers and
benefi ts consultants, insurance brokers,
and third-party administrators are likely
vulnerable to similar attacks in the fu-
ture, and employers should be prepared to
respond quickly in the event their plans
or business partners are affected.
Data breaches and employer obliga-
tions will be covered in detail at the 2015
National Workplace Strategies Seminar
in San Antonio on May 13-16. To register
for this program, visit www.ogletreedeak-
Ogletree Deakins News

New to the fi rm. Ogletree Deakins is proud to announce the attorneys who recently have joined the fi rm. They include: Dr.
Ulrike Conradi (Berlin); Phillip Pemberton (Denver); Patricia Beaty (Indianapolis); Pia Padfi eld (London); Christopher Wong
(Los Angeles); Lorne Dauenhauer (Portland); Patti Perez (San Diego); and Lauren Marino (Washington, D.C.).
New shareholders. Ten of the fi rm’s attorneys have been elected to the position of shareholder. The attorneys in the new-
ly-elected shareholder class include: Donelle Buratto, Catherine Coble, Christopher Decker, John Merrell, Diana Nehro, Sarah
Nichols, David Rosner, Natalie Stevens, Clark Whitney, and Erin Williams.
7January/February 2015
Best Practices
Delegation: Ask Permission, Beg Forgiveness, or Practice “Per-Giveness”?
by Jathan Janove, Ogletree Deakins Learning Solutions

As a boss, have you ever been frustrat-
ed by employees who either (a) kept you
in the dark or (b) sought your approval
for everything?
As an employee, have you ever been
frustrated by bosses who either (a) kept
you in the dark or (b) insisted on their
approval for everything?
If you’re a boss, you know that being
left in the dark can erode trust and pro-
duce micromanagement or avoidance.
Yet continually being interrupted to help
others make decisions can be frustrat-
ing and also lead to a loss of trust and
confi dence.
If you’re an employee asking the
boss’s permission to do something, you
might be told “yes” or “no.” Or you
might be told . . . nothing. Being told
nothing, you might go ahead and act—
and risk doing the “wrong” thing and
having to beg forgiveness later. Or,
you might just do . . . nothing—remain
in limbo.
The permission/forgiveness dichot-
omy causes another problem. Have you
ever been asked a yes-or-no question
when you weren’t comfortable with
either answer? Of course! Perhaps you
weren’t sure or perhaps you thought
“no,” but were hesitant to say so.
I’ve experienced these delegation
challenges both as a boss and as an em-
ployee reporting to a boss. As a result, I
recommend incorporating an approach
I call “per-giveness” as part of your
boss-employee communications. When
a decision needs to be made, it falls into
one of three categories:
(1) Permission: advance authorization
from the boss;
(2) Forgiveness: Just do it; if it goes
wrong, offer a mea culpa; or
(3) Per-giveness: Give the boss notice
of a pending issue for decision and an
opportunity to weigh in, but don’t require
a response in order to act.
For decisions that fall into the “per-
giveness” category, let your boss know
the following three pieces of information
and a closing statement:
(1) What you’re planning to do;
(2) When you’re planning to do it;
(3) Why your intended course of action
is optimal; and
(4) This closing statement: “Let me
know if you have questions or would like
to discuss this.”
Per-giveness in Action
When I was managing shareholder of
Ogletree Deakins’ Portland offi ce, I re-
lied heavily on my offi ce administrator
(OA). Per-giveness became part of our
delegation dialogue. Certain decisions
fell in the permission category: “Don’t
proceed without my express approval.”
For example: “Jathan, I think the offi ce
needs to be remodeled and I have a bid
of $47,000. May I go forward with this?”
Other decisions fell under forgiveness:
“Go ahead and do it.” Here is an exam-
ple: “I’ve authorized two hours of secre-
tarial overtime this evening.” And others
fell in between (per-giveness): “Jathan,
at my staff meeting on Monday at 10:00
a.m., I plan to announce a new protocol
related to scheduling vacations that is
based on the following . . . Let me know
if you have questions or wish to discuss
My OA and I periodically assessed
the types of decisions that belonged in
each category and made adjustments.
How did this help us? From my perspec-
tive as the boss, it promoted trust, confi –
dence, and effi ciency. I never had to wor-
ry, “What’s she up to now?!” Yet I wasn’t
bogged down by having to make lots of
decisions to keep things running. Also,
I had a new option for decisions that
fell in the gray area. When my OA gave
notice of an impending action, I wasn’t
required to endorse or reject her recom-
mended action. If I was on the fence, I
could read her per-giveness message and
. . . do nothing—let her act as she thinks
From my OA’s standpoint, this three-
category decision-making approach creat-
ed a nice balance—management without
micromanagement. Moreover, it elimi-
nated the frustrating and often enervating
experience of sending requests to a boss
who doesn’t respond.
In summary, relieve yourself of the
either-or dilemma of permission or for-
giveness. Instead, ask which box the de-
cision falls into:
• Ask permission?
• (Potentially) beg forgiveness?
• Apply per-giveness?
As we must be the change we wish to
see in the world, here I go: “Hi, boss. I’m
planning to post the enclosed column in
the newsletter, which goes to press next
Tuesday. Let me know if you have ques-
tions or wish to discuss it. Cheers, Jathan.”
Jathan Janove is the firm’s Director
of Employee Engagement Solutions and
a member of Ogletree Deakins Learn-
ing Solutions (ODLS). In that capacity,
he provides clients customized training,
coaching, and consulting solutions to
meet their challenges and achieve their
“Say Cheese”: Ogletree Deakins Opens Milwaukee Offi ce
Ogletree Deakins kicked off the new year by opening an offi ce in Milwaukee
with a group of nine experienced and highly regarded attorneys. Tim Costello serves
as the managing shareholder of the Milwaukee offi ce. He is joined by shareholders
Robert Bartel, Timothy Kamin, Kevin Kinney, and Brian Radloff, special coun-
sel David Loeffl er, of counsel Keith Kopplin, and associates Mark Johnson and
Dean Kelley. By opening in Milwaukee, Ogletree Deakins now has 47 offi ces and
extends a growth trajectory that includes 13 new offi ces since 2010 and international
expansion into Europe and Mexico.
“Milwaukee has been an attractive market for the fi rm for years and has a number
of synergies with our Chicago and Minneapolis offi ces,” said Kim Ebert, managing
shareholder of Ogletree Deakins. “We are excited to expand into Milwaukee and
have found a great group of talented professionals who fi t our culture and share our
“Ogletree Deakins is a fi rst-class organization, and we are excited to be a part of
the fi rm,” said Costello. “Our clients will immediately benefi t from the fi rm’s depth
of knowledge, boundless resources, and culture of unparalleled client service.”
8 Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
January/February 2015Retaliation
“15-Month Lapse” Until Adverse Action Does Not Bar Retaliation Suit
Court Finds Employer’s Reason for Refusing to Rehire Worker Was Pretextual

A federal appellate court recently rein-
stated a retaliation lawsuit brought by a
worker under the Age Discrimination in
Employment Act (ADEA) and state law.
According to the Sixth Circuit Court of
Appeals, a reasonable jury could fi nd a
causal connection between the company’s
decision not to rehire the worker and his
then-pending age discrimination lawsuit
challenging his discharge during a reduc-
tion in force. Sharp v. Aker Plant Services
Group, Inc., No. 14-5415, Sixth Circuit
Court of Appeals (January 13, 2015).
Factual Background
Aker Plant Services Group, Inc. pro-
vides engineering, procurement, and con-
struction services to clients in the manu-
facturing industry, including E.I. du Pont
de Nemours and Company. In 2003, Tom-
my Sharp began working on a contract
basis for Aker and was assigned to a Du-
pont plant in Louisville, Kentucky. Two
years later, Aker hired Sharp as a full-time
electrical and instrumentation engineer.
In January 2009, Sharp was laid off as
part of a reduction in force. Sharp asked
his supervisor, Mike Hudson, why he—
rather than his less experienced, less se-
nior coworkers—was selected to be laid
off. Hudson responded that after Sharp’s
team leader retired, the company wanted
to ensure continuity in team operations by
retaining a younger worker on the team
who they planned to groom to become
the next team leader.
Two weeks before his effective termi-
nation date, Sharp returned to work with
two digital MP3 players, which he used to
secretly record a conversation with Hud-
son. During this conversation, Hudson
reiterated his reasons for choosing Sharp
for layoff.
Sharp subsequently filed an age dis-
crimination lawsuit and, following a jury
trial, a verdict was rendered in Aker’s fa-
vor. While this suit was pending, a staffi ng
agency sought to place Sharp with Aker
in a temporary position as an electrical
designer at DuPont’s Louisville plant.
Aker’s Senior HR Manager Scott Atkins
received the inquiry and rejected the ap-
plication by email.
His explanation was as follows: “Yes,
we do know Tom. He does acceptable
work as a designer, but he violated a
DuPont mandate on the use of electronic
recording devices on company property
when last employed here. There are com-
bustible materials in the plant that can
potentially be ignited by the use of cell
phones, recorders, cameras, etc… DuPont
maintains a zero-tolerance approach to
safety violations on its property so, unfor-
tunately, we will not be able to consider
Mr. Sharp for this role.”
DuPont’s Site Policies Brochure pro-
hibits cameras and recording devices on
plant premises. According to the compa-
ny’s Safety Manual, “knowingly violating
safety rules and procedures” constitutes
a terminable offense and employees are
prohibited from bringing electrical or
battery operated devices on the premises
without management permission.
After receiving a right-to-sue letter
from the Equal Employment Opportu-
nity Commission, Sharp filed a second
lawsuit against Aker alleging retaliation
in violation of the ADEA and state law.
The trial judge granted Aker’s motion to
dismiss both claims, and Sharp appealed.
The trial judge rejected both the federal
and state retaliation claims, fi nding that
Sharp failed to establish the necessary
causal connection between his previous
age discrimination suit and Aker’s rejec-
tion of his application. According to the
court, Sharp did not introduce evidence of
temporal proximity or that the company
treated similarly-situated workers more
favorably than Sharp. “[A]s a matter of
law,” the court wrote, “the fi fteen-month
lapse between Sharp’s demand letter—
when Aker fi rst learned of Sharp’s intent
to pursue redress for age discrimination—
and Aker’s decision to reject his appli-
cation for rehire precluded a finding of
temporal proximity.”
Legal Analysis
The Sixth Circuit Court of Appeals
disagreed with the trial judge, noting that
“[t]he court needed instead to consider
those two factors in light of one anoth-
er—together with Sharp’s other circum-
stantial evidence—to determine whether
‘an inference could be drawn that the
adverse action would not have been tak-
en had [Sharp] not fi led a discrimination
action.’” Considering the evidence in the
light most favorable to Sharp, the Sixth
Circuit held that a reasonable jury could
infer that Aker declined to rehire Sharp in
retaliation for his earlier discrimination
action against the company.
The Sixth Circuit acknowledged the
15-month lapse between the two actions.
However, the court found that such a
lapse could be consistent with a retaliatory
motive, reasoning: “because Aker termi-
nated Sharp months before he disclosed
his intent to sue, no opportunity for retali-
ation manifested until the staffi ng agency
tried placing Sharp back at DuPont’s Lou-
isville plant. Aker rejected Sharp on the
same day it received his application. And
Atkins, the Aker employee who fi elded
the proposal that Sharp fi ll Aker’s vacancy
at the DuPont plant, became personally
involved in the underlying lawsuit just
two months before rejecting him.”
The court also held that Aker’s stated
reason for rejecting Sharp’s application
(“the use of electronic recording devic-
es on company property”) was pretex-
tual. According to Sharp, his coworker
brought a smartphone to the plant daily,
used the phone to take pictures, and was
not disciplined by Aker. Based on this evi-
dence, the Sixth Circuit reinstated Sharp’s
retaliation claims.
Practical Impact
According to Wade Fricke, a share-
holder in the Cleveland offi ce of Ogletree
Deakins: “First, this decision illustrates
the importance of maintaining an effective
anti-retaliation policy and regularly train-
ing supervisors. Second, when possible, it
is important to take the alleged discrimi-
nator/harasser out of the decisional loop
for any action that could be deemed an
adverse employment action. Finally, em-
ployers must apply workplace policies
consistently to all employees.”
“This decision illustrates the importance of maintaining
an effective anti-retaliation policy.”

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