The Use Law Authority – November/December 2015

A federal appellate court lately ignored a suit introduced with a paramedic who stated that his employer unlawfully placed him on alternative duty after he declined to sign up inside a wellness program. Based on the Fifth Circuit Court of Appeals, the data searched for through the employer included in its wellness program didn’t meet the phrase “genetic information” underneath the Genetic Information Nondiscrimination Act (GINA). Ortiz v. Town of Dallas Fire Department, No. 15- 50341, Fifth Circuit Court of Appeals (November 18, 2015).

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Offi ces of Ogletree Deakins
2 Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
November/December 2015
© 2015
Joseph L. Beachboard
Managing Editor
Stephanie A. Henry
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mechanical, including photocopy,
recording, or any information storage
and retrieval system, without written
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Agency Action

DOL’s Fall 2015 Agenda: Does It Shed Light on Timing of Final Overtime Rule?
by Alfred B. Robinson, Jr. (Washington, D.C.)
Approximately three months after
the comment period closed on the pro-
posal from the Obama administration
and U.S. Department of Labor (DOL) to
revise the Part 541 overtime regulations,
the DOL issued its Fall 2015 Semiannual
Regulatory Agenda that includes a state-
ment on the timing for a final overtime
rule. According to the regulatory agenda,
the DOL expects to issue the final rule
in July of 2016.
The regulatory proposal, which was
published in the Federal Register on July
6, 2015, provided for a 60-day comment
period, which closed on September 4,
2015, with some 290,723 comments re-
ceived. The proposal’s comment results
page indicates that commenters voiced
their concerns about both the overtime
rule’s compensation requirement and the
duties test.
Timeline to the Final Rule
The DOL must now review all the com-
ments and prepare a preamble and fi nal
rule to address them. It must then submit
its preamble and fi nal rule to the Offi ce of
Management and Budget’s Offi ce of In-
formation and Regulatory Affairs (OIRA)
for review and possible revision.
The regulatory agenda’s prediction of
July 2016, for publication of a fi nal rule
really does not give us greater insight
into the timing of a final rule than we
already had. In fact, the predicted date
of a final rule in the regulatory agenda
may not be realistic at all. Recall that
earlier versions of the DOL’s regulato-
ry agenda predicted the proposed rule
would be published initially in Novem-
ber 2014, then February 2015, and fi nally,
June 2015, before its actual publication
was accomplished in July of 2015.
If anything, the regulatory agenda’s
estimate of when the DOL will publish a
fi nal rule fuels more speculation and pre-
dictions. Perhaps more telling is a recent
statement by the Solicitor of Labor, M.
Patricia Smith, at an American Bar Asso-
ciation conference where she stated that
a fi nal rule was not likely before “late”
next year. While the Solicitor did not elab-
orate on what “late” 2016 means, a more
realistic prediction for publication of a
fi nal rule would be during the late third
quarter, or even the fourth quarter of 2016.
Given the tremendous number of com-
ments that must be analyzed and read,
this will be a Herculean task that will strain
the DOL’s resources. Also, as refl ected in
the regulatory agenda, the DOL has some
96 other regulatory initiatives at various
stages in the rulemaking process.
Regulatory Agenda Description
of the Overtime Rulemaking
The regulatory agenda’s section on
“Defi ning and Delimiting the Exemptions
for Executive, Administrative, Profession-
al, Outside Sales, and Computer Employ-
ees” includes a “statement of need,” which
describes the DOL’s effort to “modernize
and simplify” the overtime regulations
“while ensuring that the FLSA’s intended
overtime protections are fully implement-
ed” as “[c]onsistent with the President’s
goal of ensuring workers are paid a fair
day’s pay for a fair day’s work.”
The agenda lists the key provisions
of the proposed rule to include: (1) set-
ting the standard salary level required
for exemption at the 40th percentile of
weekly earnings for full-time salaried
workers (projected to be $970 per week, or
$50,440 annually, in 2016); (2) increasing
the total annual compensation require-
ment needed to exempt highly compen-
sated employees to the annualized value
of the 90th percentile of weekly earnings
of full-time salaried workers ($122,148
annually); and (3) establishing a mecha-
nism for automatically updating the salary
and compensation levels going forward to
ensure that they will continue to provide
a useful and effective test for exemption.
At the time of the proposal, the DOL
had not made any substantive proposals
for the duties tests. Instead, it requested
comments on whether the tests adequately
determine whether an employee qualifi es
as exempt or nonexempt and whether the
current tests permit exempt employees
to perform a disproportionate amount of
nonexempt work. While the Fall 2015
Semiannual Regulatory Agenda does not
mention the duties test, the prospect that
the DOL will revise the duties tests and
signifi cantly increase the salary amount
is a grave concern for businesses.
Employers should start planning now
so they can be prepared for big changes
in the overtime regulations late next year.
For example, employers should evaluate
strategies for exempt employees who earn
less than approximately $50,000 of in-
creasing salaries to exceed the new salary
threshold, modifying their job responsibil-
ities, or reclassifying them as nonexempt.
Also, the fi nal rule will impact employers’
budgets so employers should consider the
possibility of substantially increased com-
pensation or overtime costs for employees
who remain exempt at a higher salary lev-
el or are reclassifi ed as non-exempt.
3November/December 2015
State Round-Up
Ogletree Deakins State Round-Up
For more information on these state-specifi c rulings or developments, visit
A California Court of Ap-
peal recently ruled that an
employee who reported a
suspected theft of personal property in
the workplace was protected against re-
taliation. The court found that report-
ing illegal activity is protected even if
it involves a matter of personal inter-
est, and that the report need not relate
directly to the employment enterprise.
Cardenas v. M. Fanaian, D.D.S., Inc.,
No. F069305 (October 1, 2015).
Employers with 20 or
more employees working
in the District of Colum-
bia must comply with a new law that
requires them to offer commuter bene-
fi ts to employees by January 1, 2016.
Employers can offer the commuter
benefi ts program through an employ-
er-paid pretax benefi t program or em-
ployer-provided transportation pro-
vided at no cost to employees.
The Colorado Department
of Labor and Employment
recently issued guidance
to clarify its position on “use-it-or-
lose-it” vacation pay policies in light
of the Colorado Wage Claim Act. The
department took a hard stance against
these policies, clarifying that an em-
ployer cannot deprive an employee of
his or her right to earned wages, and
that vacation pay is an earned wage.
The commissioners of
Pinellas County recently
adopted a wage theft ordi-
nance that goes into effect on January
1, 2016. The ordinance provides that if
any employer fails to pay wages of at
least $60 due to an employee 14 days
or more from the date the work was
performed, the failure to pay will be
deemed “wage theft.” However, if the
employer has established a regular pay
period longer than 14 days, the wages
may be paid according to that schedule.
The Illinois Appellate
Court recently affi rmed a
circuit court’s holding that
an employer’s restrictive covenants
were overbroad and unreasonable.
Furthermore, the court refused to ju-
dicially modify the restrictive cove-
nants, despite the parties’ agreement
authorizing judicial modifi cation, thus
demonstrating its strong stance against
overly broad restrictive covenants. As-
suredPartners, Inc. v. Schmitt, No. 13
CH 19264 (October 26, 2015).
A Missouri Court of Ap-
peals recently affi rmed the
dismissal of an employ-
ee’s claim of discrimination based on
sexual orientation under the Missouri
Human Rights Act. The majority held
that Missouri law does not prohibit
discrimination based on sexual orienta-
tion, but the court left open the possi-
bility that future claims may be brought
by plaintiffs who specifically allege
discrimination based on gender stereo-
typing. Pittman v. Cook Paper Recycling
Corp., WD 77973 (October 27, 2015).
The Louisiana Workforce
Commission (LWC) is on
track for a second consec-
utive record-setting year in identifying
workers misclassifi ed as independent
contractors. In 2014, Louisiana led
the nation with the LWC finding an
average of 11 misclassifi ed workers per
audit and identifying 12,782 misclas-
sifi ed workers. The LWC is on pace to
exceed that number by the end of 2015.
On November 5, the New
York City Commission
on Human Rights issued
guidance on the local Fair Chance Act.
The guidance interprets the law’s lan-
guage broadly, expanding the scope of
“applicants” to include current employ-
ees, and creates a new framework for
background checks. The Commission
also issued a new version of its Fair
Chance Notice form.
On November 25, the
Portland City Council
passed an ordinance re-
stricting an employer’s ability to in-
quire about a job applicant’s criminal
history. As of July 1, 2016, Portland
employers with six or more employ-
ees will be prohibited from solicit-
ing information regarding an appli-
cant’s criminal background at any time
prior to making a conditional offer of
The Commonwealth’s
Supreme Court recent-
ly reaffirmed the claim
that Pennsylvania’s decades-old Uni-
form Written Obligations Act does not
change the long-standing common law
rule. According to the court, covenants
not to compete entered into after the
commencement of employment must
be accompanied by new and valuable
consideration. Socko v. Mid-Atlantic
Systems of CPA, Inc., No. J-40-2014
(November 18, 2015).
The City of Tacoma recent-
ly voted to forgo a ballot
measure that would have
quickly increased the minimum wage
to $15 per hour, and instead voted in
favor of a gradual increase to a $12 per
hour minimum wage. The city’s mini-
mum wage will increase to $10.35 per
hour in February of 2016, $11.15 per
hour in January of 2017, and finally
$12 per hour in January of 2018.
The New Jersey De-
partment of Labor and
Workforce Development
published its long-awaited, fi nal “ban-
the-box” regulations on December
7, 2015. The final regulations, which
took effect immediately, clarify issues
regarding New Jersey’s Opportunity
to Compete Act.
4 Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
November/December 2015
“The potential for fraud and abuse of electronic
processes is signifi cant.”
“Click Here to Organize”—NLRB Accepts E-Signatures on Authorization Cards
by Timothy C. Kamin*
The National Labor Relations Board
(NLRB) has made union organizing by
email and social media a reality. The
NLRB’s General Counsel issued Mem-
orandum 15-08 on September 1, 2015,
stating that, “[e]ffective immediately,
parties may submit electronic signatures
in support of a showing of interest.”
On October 26, 2015, the General
Counsel issued Revised Memorandum
15-08 providing more detail and exam-
ples of how the new process will work.
Employers should expect unions to take
advantage of this groundbreaking devel-
opment by using email and social media
to expedite and expand the organizing
The History of Actual Signa-
tures on Authorization Cards
The NLRB has long required that a
union election petition be supported by
a “showing of interest” demonstrating
that at least 30 percent of the employees
involved support the union. For decades,
the showing of interest has taken the
form of employee-signed “authorization
cards,” pocket-sized cards stating that
employees wish to be represented by a
union for purposes of collective bargain-
ing. Under the General Counsel’s new
rule, there is now no need for union or-
ganizers to solicit actual signatures from
Part of the Larger Picture
This move to electronic signatures is
an outgrowth of the NLRB’s new “am-
bush” election rules, which took effect in
April 2015. Under those rules, the speed
of the organizing process has increased
signifi cantly and, for the fi rst time, elec-
tronic filing and service of petitions is
permitted by the NLRB. As part of that
rulemaking process, the Board directed
the General Counsel to issue guidance
on whether electronic signatures should
be accepted to support a showing of inter-
est, and Memorandum 15-08 was issued
in response to that directive.
What Types of Electronic
Signatures Are Acceptable?
Multiple forms of “electronic signa-
ture” will be accepted by the NLRB,
including “email exchanges or internet/
intranet sign-up methods.” Options in-
clude a website that employees could
access to complete an online “authori-
zation form” or a form email message.
An authorization supported by electronic
signature must include the signer’s name,
email address or social media account,
telephone number, the actual “authori-
zation” language to which the employee
assents, the date of the submission, and
the name of the employer.
The submitting union also must pro-
vide a declaration identifying the tech-
nology used and explaining the identifi –
cation controls within the system. Rather
than signing an authorization card with
a pen, employees will be offered the op-
portunity to affi rm their desire for union
representation by clicking a box.
Concerns About Authenticity
In accepting “electronic signatures,”
it is not clear whether, how, or what
actions the NLRB will take to verify
authenticity. The NLRB has long pre-
sumed conventional signatures to be
valid absent signifi cant evidence to the
contrary, and the acceptance of cards
has been at the NLRB’s discretion with
extremely limited opportunity for legal
Under the procedures detailed in the
Revised Memorandum, electronic sig-
natures verifi ed by an independent third
party through public key infrastructure
(PKI) technology will be accepted with-
out further action. If the union gathering
the electronic signatures does not use a
PKI-based system, it will be required to
send a “confirmation transmission” to
each electronic signer confi rming the in-
formation to which the signer assented,
and inviting the signer to respond if any-
thing is incorrect. The submitting union
will be obligated to provide any respons-
es to the “confi rmation transmission” to
the NLRB along with the electronically
signed authorizations. Sample forms for
these submissions are provided as attach-
ments to the Revised Memorandum.
In the General Counsel’s view, “the
contact information (email address, phone
number or other social media account)
is easy to obtain electronically from
the signer and will enable the NLRB to
promptly investigate forgery or fraud,
where appropriate.” While the process of
verifying the authenticity of the showing
of interest always has been murky from
the viewpoint of employers, the potential
for fraud and abuse of electronic processes
is signifi cant.
Traditional Labor
* Timothy Kamin is a shareholder
in the Milwaukee office of Ogletree
Deakins, where he represents manage-
ment in labor and employment-related
“E-Signatures” Reduce the
Employer’s Ability to Respond
It remains to be seen how unions will
capitalize on this development, but the
opportunity is tremendous. Many unions
have existing websites, social media
pages, and Twitter accounts that provide
a ready-made platform for soliciting em-
ployees by offering a hyperlink to the
“electronic authorization form” for em-
ployees to complete.
Likewise, a hyperlink easily could be
included in a mass email to employees—
a prospect that was enhanced greatly by
the NLRB’s recent decision in Purple
Communications. In that case, the NLRB
held that employees who have been
granted access to company email systems
must be permitted to use those systems
for union organizing activity when on
non-working time. If a union provides
the hyperlink to one sympathetic em-
ployee, that employee could extend the
invitation to all employees in a matter of
In addition to electronic solicitations,
more traditional means still may be used
to direct employees to a union’s “e-au-
thorization” website, such as handbills
Please see “NLRB” on page 5
5November/December 2015
Wrongful Termination
Receipt of Letter Doesn’t Place Employer on Notice of Wage Garnishment
Court Upholds Dismissal of Worker’s Wrongful Termination Suit
A federal appellate court recently re-
jected a lawsuit brought by an employee
who claimed that his employer discharged
him to avoid obligations associated with
a wage garnishment for his student loans.
According to the Ninth Circuit Court of
Appeals, no one involved in the employ-
ee’s termination had actual knowledge
of the potential wage garnishment, and
the mere receipt of correspondence from
the employee’s loan servicer by the of-
fice where the HR director worked did
not put the director on constructive no-
tice of the potential garnishment activity.
Sutherland v. Red Bull Distrib. Co., No.
13-16724, Ninth Circuit Court of Appeals
(November 23, 2015).
Factual Background
Red Bull Distribution Company
(RBDC) hired Valgene Sutherland in
2008 to deliver Red Bull refrigerators
to customers from a Las Vegas distribu-
tion center. RBDC’s payroll was handled
by Red Bull North America (RBNA) in
Santa Monica, California.
On March 23, 2011, RBNA received
a letter from Sutherland’s student loan
servicer, Texas Guaranteed Student Loan
Corporation (TG), which sought to locate
Sutherland and verify his employment
with RBDC. Prior to TG sending the let-
ter, RBDC had informed TG that wage
garnishment requests should be sent to
the Santa Monica office. However, the
March 23 letter did not mention any po-
tential wage garnishment.
Following some earlier “timekeep-
ing issues,” Sutherland was caught
clocking in on a day he had not actual-
ly worked. Although he claimed that he
had clocked in mistakenly, he alleged-
ly made no effort to correct the error.
Sutherland’s direct supervisor, Steve
Crudo, sought to terminate Sutherland
for falsifying time records.
Crudo consulted with Roberta Hernan-
dez, RBDC’s HR director who worked
in the Santa Monica office. Hernandez
approved the decision and, on June 21,
2011, RBDC discharged Sutherland.
Sutherland subsequently fi led a wrong-
ful termination lawsuit alleging that
RBDC had terminated him because of
the “potential garnishment activity.”
Legal Analysis
Under Nevada law, a plaintiff cannot
prevail on a wrongful discharge claim
unless he can “demonstrate that his pro-
tected conduct was the proximate cause
of the discharge.” Moreover, under 20
U.S. Code section 1095(a)(8), an em-
ployer may not discharge an employee
“by reason of the fact that the individual’s
wages have been subject to garnishment.”
Thus, to prevail on any of his claims,
Sutherland had to demonstrate “a causal
link between his termination and the gar-
nishment activity.”
The district court noted that both Her-
nandez and Crudo—as well as another
supervisor who had been involved with
Sutherland’s previous timekeeping issues,
Bryce Ondell—testified that they did
not know about the letter from TG nor
“of the potential future garnishment”
at the time they terminated Sutherland.
Hernandez in particular testifi ed that as
Red Bull’s HR director, with more than
and mailers. One union has already placed an advertisement in a local newspaper,
inviting employees of a particular employer to visit a union website for the purpose
of signing an electronic authorization card.
The General Counsel’s decision to allow unions to organize electronically creates
an alternative to traditional authorization card signing drives that is exponentially
faster, very low in cost, and more “under the radar” than ever before. A union can
now effectively solicit all of an employer’s employees before the employer has any
opportunity to respond, or perhaps even without the employer becoming aware that
it has happened. A proactive approach to positive employee relations, including
advising employees in advance of the ramifi cations of signing an authorization card
and properly training supervisors, is now more important than ever.
continued from page 4
1,200 employees to deal with, she did
not handle or know about employee gar-
nishment issues and didn’t become aware
of Sutherland’s student loan until after
he had been terminated.
Since Crudo, Ondell, and Hernandez
were the only people involved in the de-
cision to terminate Sutherland, and their
testimony that they did not know about
the potential garnishment issue was undis-
puted, Sutherland could not prove a direct
link between the potential garnishment
and their decision to terminate him.
Nevertheless, Sutherland proceeded on
the theory that Hernandez and Red Bull
had “constructive notice” of the potential
garnishment because the Santa Monica
offi ce had received the initial letter from
The district court rejected this argu-
ment as well. “The fact that someone at
the Santa Monica offi ce uninvolved with
the decision to terminate Sutherland
knew about a potential future wage gar-
nishment is insuffi cient,” the court held,
to prove that the garnishment activity was
causally connected to his termination.
On appeal, the Ninth Circuit affi rmed
without oral argument. The court held
that no reasonable jury could fi nd a causal
link between the potential garnishment
and Sutherland’s fi ring based on a mere
allegation of constructive notice. “For
the potential wage garnishment to have
motivated Sutherland’s managers and the
human resources department to terminate
his employment they must have known
about it,” the court held. “Because it is
undisputed that the decision-makers had
no actual knowledge of the proposed
garnishment, the district court properly
granted summary judgment.”
Practical Impact
According to Tony Martin, a share-
holder in the Las Vegas offi ce of Ogletree
Deakins, “This decision highlights that
in the Ninth Circuit, the mere receipt of
correspondence in an offi ce that houses
HR functions does not necessarily put the
HR director on notice of the contents of
that correspondence. Nonetheless, em-
ployers are reminded by this decision that
they should refrain from taking adverse
action against employees who have en-
gaged in protected activity.”
6 Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
November/December 2015Employment Discrimination
continued from page 1
five years, as well as a stress test and
“Prostate-Specific Antigen” testing for
those over the age of 40.
Failure to complete the wellness
program resulted in an employee being
placed on “alternate duty.” However,
SAFD committed to working “close-
ly with the employee and the Wellness
Physician to expedite a return to full duty
On June 23, 2011, Ortiz received
an email regarding upcoming physicals
for all Emergency Medical Services per-
sonnel. Approximately one month later,
Ortiz wrote a letter to the fi re chief stat-
ing that he did not want to participate
in the wellness program and did not wish
“to allow release of [his] Personal Pro-
tected Information to any entity with-
out [his] consent.” In a second letter, he
requested “additional time to meet with
[his] lawyer . . . before subjecting [him-
self] to the physical and lab work.”
In February 2012, Ortiz was placed
on alternative duty for failing to comply
with the wellness program. One week lat-
er, Ortiz submitted documentation from
his personal physician and he was imme-
diately returned to regular duty.
On April 13, 2012, SAFD learned
that Ortiz had not taken a stress test and
refused to submit to one. As a result, he
was again placed on alternate duty. Af-
ter nine months of alternate duty, Ortiz
submitted the results of a stress test and
was returned to regular duty.
Ortiz fi led a lawsuit against SAFD al-
leging that the department violated the
Genetic Information Nondiscrimination
Act (GINA) by mandating that he par-
ticipate in the wellness program and by
placing him on alternate duty when he re-
fused. The district court adopted a magis-
trate judge’s recommendation to dismiss
the suit, and Ortiz appealed this decision
to the Fifth Circuit Court of Appeals.
Legal Analysis
GINA prohibits an employer from
discriminating or taking adverse action
against an employee “because of genetic
information with respect to the employ-
ee.” Under the Act, it is unlawful “for
an employer to request, require, or pur-
chase genetic information with respect
to an employee or a family member of
the employee.”
There are some exceptions to this
provision, however. As noted by the
Fifth Circuit, “an employer that offers
medical services ‘as part of a wellness
program’ may request genetic informa-
tion if the ‘employee provides prior,
knowing, voluntary, and written autho-
rization’ and certain confidentiality re-
quirements are met.”
The court also noted that under the
Act, “genetic information” encompasses
information about “genetic tests” of an
employee or his or her family members,
and information about “the manifestation
of a disease or disorder in family members
of such individual.”
In this case, the Fifth Circuit held that
the district court properly dismissed Or-
tiz’s discrimination claim because there
was no evidence that SAFD had request-
ed, required, or purchased his genetic in-
formation, or discriminated against him
on the basis of genetic information. Ac-
cording to the court, Ortiz “appears to
misread the statute as forbidding any
mandatory wellness program, regardless
of whether it involves a request for or the
acquisition of genetic information.”
Practical Impact
According to Stephanie Smithey, a
shareholder in the Indianapolis office
of Ogletree Deakins, “Even though the
employer prevailed in this case, the land-
scape for workplace wellness programs
continues to get more rocky. The facts
of this case are different from those in
which the Equal Employment Opportu-
nity Commission (EEOC) has initiated
litigation against employers relating to
their wellness programs. Here, the plain-
tiff alleged violations of GINA, even
though the employer’s wellness plan did
not request or collect any genetic infor-
mation from the plaintiff. The medical
exam was clearly job-related, and the re-
cord contained no indication that he was
ever asked to provide his family medical
history, which constitutes genetic infor-
mation under GINA.”
“By contrast,” Smithey continued,
“the EEOC recently raised GINA issues
when it sought a temporary restrain-
ing order against an employer wellness
plan where the employer offered a contri-
bution to the employee’s health savings
account based in part upon collection of
family medical history from the employ-
ee’s spouse.”
Employers should be cognizant when
structuring their wellness programs that
the collection of any family medical
history can raise GINA concerns which
should be considered at the front end.
“In addition to GINA concerns, work-
place wellness programs continue to
trigger potential exposure for employers
under the Americans with Disabilities
Act (ADA), the Affordable Care Act
(ACA), and the Health Insurance Porta-
bility and Accountability Act (HIPAA).
While the EEOC has targeted wellness
programs that compel participation in
medical tests unrelated to the job and
that impose significant penalties for
non-participation, even voluntary well-
ness programs can run afoul of one or
more of these laws, particularly when they
include penalties or incentives linked to
medical status.”
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: Rachel
Kelly (Dallas); Steven Reid (Denver); Michael Riccobono (Morristown); Alysia Harris (Portland); and Jonathan Liu (San Diego).
Ogletree Deakins has 750 attorneys in 48 offi ces across the United States, in Europe, and in Mexico.
Diversity award. Ogletree Deakins has been selected as the recipient of the Minority Corporate Counsel Association’s (MCAA)
Thomas L. Sager Award for the Midwest region. The Thomas L. Sager Award is given to law fi rms that have demonstrated sus-
tained commitment to improve the hiring, retention, and promotion of minority attorneys. Every year, MCCA selects one law fi rm
in each of fi ve regions—Mid-Atlantic, Midwest, Northeast, South, and West—for its outstanding contribution to the promotion
of diversity in the corporate legal community.
7November/December 2015
Best Practices
Eliminate Relationship Breakdown in the Workplace: Listen With Your “EAR”
by Jathan Janove, Janove Organization Solutions
Many years ago, I learned the “EAR”
listening method. It’s simple and effec-
tive, and it has since served my clients
and me well.
E stands for “Explore.”
A stands for “Acknowledge.”
R stands for “Respond.”
How Does It Work?
The EAR method comprises three
steps that should generally be carried out
in sequence. Start by exploring the other
person’s position by asking open-ended
questions, such as “What do you think?”
“How do you see it?” and “Can you share
examples with me?”
Next, move to acknowledgment. Con-
firm your understanding of what they
think is important: “So if I understand
you . . . Is that accurate?” “So your main
concern is . . . Is that right?”
After the person confirms that you
understand what matters to him or her,
Why Is It So Effective?
The EAR method improves the quality
of your response. It will give you the in-
formation and the time to craft a nuanced,
intelligent response.
At the psychological level, the E and
the A—exploring and acknowledging—
combine to create a receptive environ-
ment for communication. Think about
how you’ve felt when someone took
the time to hear your point of view and
showed they’d paid attention and under-
stood. You felt pretty good, didn’t you?
The EAR method eliminates perhaps
the number one culprit in relationship
breakdown: the erroneous assumption.
Far too often, we jump to the response,
basing it on what we assume about the
other person. We shouldn’t be surprised
that our response elicits a negative reac-
tion—its inaccuracy offends the other
person, who feels misunderstood.
Common Applications
Although the EAR method is useful
in essentially all exchanges, it’s especially
so in the following:
• Building relationships. If you have
a boss, a coworker, or someone else with
whom it’s in your interest to create a pos-
itive relationship, fi nd a subject of interest
“The EAR method comprises three steps that should
generally be carried out in sequence.”
to them and apply the EAR method. Ex-
plore the subject, including why it matters
to him or her. Acknowledge what you’ve
learned by confi rming your understand-
ing. Then respond with what that subject
means to you.
• Corrective action. Too often, when
employees behave in ways we don’t like,
we assume it’s their fault and move to
disciplinary action. A better approach
is to suspend judgment and explore the
employee’s perspective—what he or she
thinks happened, including the causes,
reasons, and results. Acknowledge or
confi rm your understanding, and then re-
spond. You may avoid an unnecessary and
counterproductive disciplinary response
by learning information that gives you
a more nuanced view. Even if your re-
sponse is ultimately disciplinary, it will
be tailored to the circumstances and the
employee will more likely accept it as
• Conflict resolution. In my view,
most confl icts rest on a foundation that’s
less substance than style. It’s not a matter
of irreconcilable positions; rather, it’s in-
teraction breakdown. When you explore
the other person’s position, including the
underlying bases and causes, you’ll of-
ten discover common ground. Even if the
confl ict is rooted in substance, taking an
EAR approach creates an opportunity to
manage it going forward.
• Meeting protocol. When was the
last time you attended an unproductive
meeting? You probably witnessed a lot of
talking and not much listening. The extro-
verts competed with their Rs or responses
while the introverts kept their ideas and
insights to themselves. Make the EAR
part of your meeting protocol and observe
how extroverts become more collabora-
tive and introverts become more engaged.
Common Missteps
In years of coaching people, I’ve ob-
served the following missteps:
• Spending insuffi cient time in the E
or exploring step. Before you move to the
acknowledge step, make sure the other
person has shared everything he or she
thinks is meaningful. Use questions such
as “What else?” or “Anything else?”
• Skipping the acknowledgment.
Some people have a tendency to jump
from exploring to responding. As a result,
they rely on assumptions in their Rs. Don’t
neglect the A for acknowledgment.
• Succumbing to a hard-wired R habit.
Some people have Pavlovian Rs: When a
topic arises, they automatically respond.
No questions. They may think they’re
listening when in reality they’re focused
on their own responses. To combat this
tendency, it’s helpful to mentally prepare
yourself before the conversation begins. It
can be useful to keep a small sticky note in
the palm of your hand with the EAR steps
spelled out, especially when you are about
to engage in a challenging conversation.
Variations on the EAR Method
Although it’s useful to follow the
method consciously until it becomes nat-
ural, don’t hesitate to customize it to fi t
your communication style.
Sometimes I start with the A. I find
this useful in emotionally tense situa-
tions when I already have a good idea
of why the other person is upset: “The
first thing I’d like to do is make sure I
understand your position. Tell me if this
is accurate…”
Another variation involves providing
an R before completing the EA. At the
outset or in the course of the discussion,
I’ll sometimes provide responses to help
organize or provide structure to the dis-
cussion: “As you know, my position is
. . . However, what I’d like to do now is
explore your view of the matter.” “I think
it would be helpful if we focused on . . .
What do you think?”
The EAR process isn’t a rigid, me-
chanical tool. Rather, it’s an approach to
keep you other-focused, as opposed to
self-focused, and maximize the likeli-
hood that you will have a constructive
8 Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
November/December 2015Employment Discrimination
Court Expands Defi nition of “Adverse Employment Action” Under Title VII
Finds Employer’s Failure to Accept Worker’s Rescission of Resignation May Constitute Adverse Action
A federal appellate court recently
reinstated a lawsuit brought by an em-
ployee who claimed that her former
employer retaliated against her by not
allowing her to rescind her resignation.
The Fifth Circuit Court of Appeals found
that refusing to accept the employee’s
rescission of her resignation amounted
to an adverse employment action and
that summary judgment was improper.
Porter v. Houma Terrebonne Housing
Authority Board of Commissioners, No.
14-31090, Fifth Circuit Court of Appeals
(November 17, 2015).
Factual Background
Tyrikia Porter was employed as a
Housing Manager II by the Houma Ter-
rebonne Housing Authority (HTHA).
In April 2006, HTHA hired Wayne Thi-
bodeaux as executive director.
Shortly thereafter, Porter claimed that
Thibodeaux began engaging in behavior
that made her uncomfortable. Thibo-
deaux asked her to lunch and to accompa-
ny him on overnight business trips, made
comments on her physical appearance,
told her she had a “sexy voice,” prevented
her from leaving his offi ce, and stared at
her continuously.
On June 6, 2012, Porter tendered her
resignation with an effective date of
August 1, 2012. A few days before the
effective date, Porter requested that her
resignation be delayed for one month.
Thibodeaux approved the request, ex-
tending her resignation to September 1,
On June 25, 2012, Porter testified
about Thibodeaux’s inappropriate be-
havior at a grievance hearing for a co-
worker. Before the hearing, the Chair-
man of the HTHA Board of Commis-
sioners personally asked Porter to rescind
her resignation. And following the hear-
ing, in late August, her direct supervisor
asked Porter to stay with the company.
On September 4, 2012, three days
after her resignation had taken effect,
Porter notified HTHA that she would
like to rescind her resignation. Her di-
rect supervisor fully supported this deci-
sion and passed the information on to
Thibodeaux unilaterally denied Por-
ter’s request to rescind her resignation,
alleging that Porter was not happy in
her position. No one had been separated
from HTHA before without supervisor
approval and four other employees had
rescinded their resignations in the past.
Porter filed a lawsuit against HTHA
alleging retaliation under Title VII of the
Civil Rights Act. The trial court granted
summary judgment in favor of HTHA
and Porter appealed this decision to the
Fifth Circuit Court of Appeals.
Legal Analysis
To establish a prima facie case of
retaliation under Title VII, an employee
must show that (1) he or she was engaged
in protected activity, (2) he or she was
subjected to an adverse employment ac-
“This decision reaffi rms the very broad realm of actions that
will qualify as actionable retaliation under Title VII.”
tion, and (3) there was a causal connec-
tion between the protected activity and
the adverse employment action.
The issue in this case revolves around
whether a refusal to accept a rescission
of resignation constitutes an adverse
employment action. The Fifth Circuit’s
decision relied on precedent from the
U.S. Supreme Court’s 2006 decision in
Burlington Northern. That case held that
an adverse employment action is any ac-
tion that would be “harmful to the point
that [it] could well dissuade a reasonable
worker from making or supporting a
charge of discrimination.”
Given that Porter was allowed to
stay on an extra month and was asked
to reconsider her resignation twice, the
Fifth Circuit found that it was reason-
able for her to believe that she would be
able to rescind her resignation. Thus,
refusing to accept her rescission of resig-
nation amounted to an adverse employ-
ment action.
The Fifth Circuit then considered
whether HTHA would not have taken the
action “but for” Porter’s protected activity.
In this case, Thibodeaux alleges that he
rejected her rescission because she was
not happy in her position, not due to her
testimony. Since HTHA produced a legit-
imate reason for their action, Porter must
now demonstrate that there is “a con-
flict in substantial evidence.” In other
words, she must show that there is a pos-
sibility that Thibodeaux’s stated reason
is actually a pretext. The fact that no one
else was fi red against their supervisor’s
desires, four other employees were al-
lowed to rescind their resignations, and
there was temporal proximity between
the events created a “confl ict in substan-
tial evidence.” Thus, the Fifth Circuit
reversed the grant of summary judgment
in favor of HTHA.
Practical Impact
According to Greg Guidry, a share-
holder in the Lafayette and New Orleans,
Louisiana offices of Ogletree Deakins,
“This decision, coming from a generally
conservative court on employment mat-
ters, reaffi rms the very broad realm of ac-
tions that will qualify as actionable retal-
iation under Title VII. The Supreme Court
in Burlington Northern and other deci-
sions has greatly expanded the playing
fi eld for employees to allege retaliation
against their employers, and this decision
adds rejecting an employee’s attempted
withdrawal of a prior resignation to the
list of ‘adverse employment actions,’ if
the circumstances and context support it.”
Guidry adds: “Since retaliation claims
have been the leading basis for EEOC
charges for the past few years and are
a very common basis for lawsuits, em-
ployers should train their supervisors to
avoid taking any actions against employ-
ees who have engaged in any protected
activity, even if seemingly insignifi cant
or clearly appropriate, without consulting
with human resources or upper manage-
ment. This is particularly important
when the timing of the potentially ad-
verse action would be close-in-time to the
employee’s protected activity. The em-
ployer in this case will still have the op-
portunity to win this case at trial, but the
bad facts and timing that were highlight-
ed by the Fifth Circuit might make that
diffi cult.”

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