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• Great minds teach how to sidestep nettlesome opposing counsel
• Don't use unemployment as a proxy when it's a poor predictor
• In the name of productivity and consistency, employers should permit employee Internet access at work
• Brevity is the soul of a good speech
• Say "cheese"
• Growth and evolution in the law on protected concerted activity
• The power of potential to pique imagination
• Mrs. Palsgraf and the cat's-paw doctrine
• SCOTUS: Oral complaints can qualify as "filed" for FLSA purposes
• Back to basic on the defense

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Great minds teach how to sidestep nettlesome opposing counsel	Top
I was deposing a plaintiff not long ago in a difficult and emotional racial harassment suit. The plaintiff's lawyer laughed at some of my questions, told me to move on, snickered — you get the idea. Once, I would have reacted and engaged him, but not now. Instead, I ignored him. Why? To engage would not have moved the ball forward for my client, and it would have derailed my questioning (which was getting me the answers I wanted, which in turn was making him apoplectic). Yes, it would have felt good to figuratively slap him by responding, but it would have been pointless. How to avoid the temptation to hit back? Think William Butler Yeats and Marcus Aurelius. In "An Irish Airman Foresees His Death," Yeats wrote, "Those that I fight I do not hate/Those that I guard I do not love." That centers me. And Aurelius, a Roman Emperor and Stoic, taught us in his "Mediations" that we are not in control of how others act, but we are in complete and total control of how we respond. Aurelius in Book 8, 47-49 : "If you suffer pain because of some external cause, what troubles you is not the thing but your decision about it, and this it is in your power to wipe out at once . . . abide always by the first impressions and add nothing of your own from within, and that's an end of it. . . ." That focuses me.
Don't use unemployment as a proxy when it's a poor predictor	Top
Let's play claim or no claim. An employer has an absolute rule that applicants for employment are rejected if, at the time of their application, they are unemployed. The EEOC says: potential claim. According to an interesting article in BNA's Employment Discrimination Report for the week of February 23, "EEOC Ponders Potential for Hiring Bias In Excluding Unemployed Job Applicants" by Kevin P. McGowen, the EEOC believes that such a rule has a disparate impact on people who are black, Hispanic, have disabilities, and are older workers. According to the article, a Feb. 16 EEOC hearing took testimony on this issue. The hearing dealt with an employer argument that current unemployment status is a proxy for poor performance. Testimony at the hearing: Current employment status is a poor proxy for successful job performance. My take: Employers must always be wary of absolute rules. Why? Civil rights laws are designed for individual assessments, not barroom generalities. Employers should tread carefully in this area. The EEOC is watching.
In the name of productivity and consistency, employers should permit employee Internet access at work	Top
Employers should allow employees access to the Internet at work. It is pointless to try and control it. And now, there is evidence that doing so makes them better workers. So reports James Surowiecki in this week's edition of The New Yorker , "In Praise of Distraction." Researchers at a Danish university asked participants in a study to watch a video of people passing a ball and to count the number of passes. Group No. 1 watched a funny, 10-minute video before their screens asked them to start this task. Group No. 2's screens told them they could watch a funny video if they clicked a button, but they were told not to do so. Group No. 2 could hear their Group No. 1 colleagues laughing away. Once the funny video was over, both groups started to count the number of passes. Those who hadn't watched the comedy video made more counting mistakes than those who had. Surowiecki writes, "You might have thought that those who had spent the previous ten minutes laughing would become distracted and careless. Instead, it was the act of following company policy and not clicking that button that eroded people's ability to focus and concentrate." The bottom line: "[A]sking people to regulate their behavior without interruption (by, say, never going online at work) may very well make them less focussed and less effective." So what should employers do? Here is my take: Dump the multipage policies on internet usage and replace it with a good judgment policy: "We hired you for a variety of reasons, including our belief and trust that you will exercise good judgment in performing your job responsibilities. In short, we trust your judgment and character. So, with respect to internet usage, personal use at work is permitted. Use common sense. By way of example, no visits to inappropriate web sites, such as those that are sexually oriented." This is really all employers need. It amazes me that employers bestow all sorts of titles on employees that imply trust (partner, associate, team member) and then treat them like children by promulgating hundreds of rules in hundred-page handbooks. My mom told me, "If you say something is important, than treat it as important."
Brevity is the soul of a good speech	Top
Short talks are the best talks. They are more focused and thus make a greater impact. In turn, listeners remember them. Christopher Witt, in collaboration with Dale Fetherling, makes this point in "Real Leaders Don't Do PowerPoint: How To Sell Yourself and Your Ideas." They provide an interesting list of speeches and how long they lasted: Patrick Henry and his"Give me liberty or give me death" speech was six minutes. The Gettysburg Address was all of two minutes. Franklin D. Roosevelt's address to the nation after Pearl Harbor was over in seven minutes. The Rev. Dr. Martin Luther King Jr.'s "I Have a Dream" speech was only 16 minutes. And after the Space Shuttle Challenger tragedy, Ronald Reagan spoke to the nation for less than five minutes. So why do lawyers think a longer speech is better? I think it's because we are trained to cover all bases and develop all lines of argument; we fear criticism for leaving something out. It's better not to take a risk, the reasoning goes. But that's wrong. The art of persuasion and inspiration is the art of what to leave out. The authors make a telling point: "Also, in this age of PDAs, instant messaging, and other electronic distractions, audiences don't have the attention spans they may have once had. What's more, you want to leave your audience wanting more of you, not less." It's just like dating: Keep a date short, and if you need to break up, get to the point.
Say "cheese"	Top
Federal courts continue to police employers who allegedly retaliate against employees who seek to complain of discrimination. Look at the 7th U.S. Circuit Court of Appeals' Feb. 18 decision in Loudermilk v. Best Pallet Co., et al. Judge Frank H. Easterbrook sketched out the facts. A black employee complained to his supervisor that Hispanic employees were being treated more favorably than him because of his race. The supervisor told him, "Put it in writing." The next day he did and was "fired on the spot." The trial court granted summary judgment to the employer because of conflicting evidence on whether the supervisor read the note, to which Easterbrook tartly responded, "What did [the supervisor] think was in the note he received the next day? An invitation to a birthday party?" The judge also commented that the employer came close to confessing to retaliation. How? The employer said that one of the reasons for termination was the employee's violation of its rule against taking photos in the workplace. Easterbrook commented: "If the reason that [the employee] snapped the photos was to bolster his claim of discrimination, then forbidding picture-taking looks a lot like an attempt to block the gathering of evidence during an investigation."  Employers need to ask themselves: Will my reason for termination suggest that the company was seeking to frustrate the employee's gathering of information to support his claim of discrimination? If so, they should re-think the decision.
Growth and evolution in the law on protected concerted activity	Top
I started my legal career at the National Labor Relations Board, and I tried my first case there in 1981. We were prosecuting a transport company for terminating an employee for engaging in protected concerted activity. It is a violation of the National Labor Relations Act to fire or otherwise take adverse action against an employee who acts in concert with other employees to protest working conditions. But, is it a violation if the employer does so because it believes that the employee is about to engage in protected concerted activity but has not yet done so? On Jan. 28, the NLRB said, "Yes." Here are the facts from the board's opinion in Parexal International LLC and Theresa Neuschafer : An employee was unhappy because she believed a group of South African co-workers were receiving raises and she and her American coworkers were not. She was called into a meeting with human resources and operations and told that the company was concerned that she was spreading rumors that the South Africans were receiving better treatment and higher wages than other employees. She was asked if she told this to anyone else, and she said only to her supervisor. Six days later she was fired. The NLRB brought a complaint against the company, but the administrative law judge tossed it, because the employee had not yet joined together with co-workers. The board disagreed, holding by a 2-1 vote that " 'a pre-emptive strike to prevent her from engaging in activity protected by the Act' " is just as much a violation as terminating an employee who has already done so. The board went on to note that the critical issue is not what the employee did but rather the employer's intent behind what it did. The board thought the critical testimony was the employer's question about whether she had discussed her beliefs with her co-workers (the NLRA doesn't cover supervisors). The law grows, it evolves. I like that.
The power of potential to pique imagination	Top
The March issue of the Harvard Business Review has an interesting interview with Zakary Tormala entitled "Defend Your Research: Experts Are More Persuasive When They're Less Certain."   His work deals with how certainty affects our perceptions. Here is one experiment he ran: Present people with letters of recommendation for a job, describing one candidate as "high potential" and the other as "high achieving." People find the letter describing someone as high potential more interesting and possibly more persuasive. Why? Here is Tormala: "Proven achievement is very certain. It's less surprising and less interesting to think about. Potential is uncertain and kind of exciting. You can imagine many outcomes." That's true in dating and true in sports. He cites one study using pro athletes. Given identical stats for a veteran player's first five years of performance and a rookie's predicted five year performance, study subjects elected to compensate the rookie almost $1 million more in year six. I think this research also teaches that people like to make up their own minds. It's something to think about when the next opening statement and closing argument comes around.
Mrs. Palsgraf and the cat's-paw doctrine	Top
Remember being a 1L, studying about Mrs. Palsgraf and proximate cause in torts and the fruit of the poisonous tree in criminal procedure? I never thought I would see them again, but I was wrong. The ideas popped up the SCOTUS decision in Staub v. Proctor Hospital . The issue: Is an employer on the hook for discrimination if the person who fires the employee is pure of heart but relies on biased actions (such as a write up) by a subordinate? The answer: Yes. The court reasoned that tort law governed the question, and that if a biased supervisor's action was a proximate cause of the adverse employment action, then the employer is on the hook. And proximate cause only requires some link between the biased act and the adverse employment action. So, the biased supervisor's action does not need to be the proximate cause, just a cause. As Justice Antonin Scalia pointed out, "[I]t is common for injuries to have multiple proximate causes." Or to put it in crim-pro terms, the adverse employment action taken by the ultimate decision-maker is a fruit of a poisonous tree. What about the employer's argument that the ultimate decision-maker's independent investigation into an employee's accusation of bias (and rejection of same) insulates the employer from liability? Scalia's slashing response:"Nor do we think the independent investigation somehow relieves the employer of 'fault.' The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment action." What to do? When an employee alleges that discrimination caused an adverse employment action, do not circle the wagons. Look into it with an open mind. In litigation, ask the ultimate decision-maker whether she would have made the same decision regardless of the biased action and why. Run a risk assessment on an adverse employment action before implementing it. Is the action consistent with previous decisions in similar circumstances? Is there any reason the supervisor would make up the reason for the adverse action? Finally, train supervisors to be fair and consistent and to listen to employees. Make no mistake, this decision is a big victory for employees, but it does not leave employers helpless.
SCOTUS: Oral complaints can qualify as "filed" for FLSA purposes	Top
Today the U.S. Supreme Court issued its long-awaited decision in Kasten v. Saint-Gobain Performance Plastics Corp. The issue? To merit protection under the Fair Labor Standards Act's anti-retaliation provision, must an employee make a written complaint of an FLSA violation to an employer, or will an oral one suffice? By a 6-2 vote, with Justice Elena Kagan recusing herself, the court said an oral complaint is good enough. The decision hinged on the words of the FLSA. The law, enacted in 1938, forbids employers from firing or discriminating against any employee because such employee has "filed any complaint." What, then, does it mean to "file" a complaint? Well, SCOTUS reasoned that the phrase "any complaint" suggests a broad interpretation that would include an oral complaint. That's the English lesson for the day. But there is a history lesson, as well, from SCOTUS, in a majority opinion written by Justice Stephen G. Breyer (pictured): "Why would Congress want to limit the enforcement scheme's effectiveness by inhibiting use of the Act's complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated, or overworked workers?" As Justice Ruth Bader Ginsburg pointed out in oral argument , many of those most affected by the law would be immigrants whose language and written skills could be lacking. SCOTUS lays out the meaning of "file," saying it agrees with the government's claim at oral argument that a complaint qualifies as filed when " 'a reasonable, objective person would have understood the employee' to have 'put the employer on notice that [the] employee is asserting statutory rights under the [Act].' " SCOTUS goes on to illuminate this standard: "To fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection." Nice phrasing: a "call for their protection." It goes to SCOTUS' belief, in this case and others, that if Congress gives an employee a right (say, to overtime pay), then courts must protect the employee's access to that right. I think SCOTUS came to the pro-access decision it wanted to reach and backed into the reasoning. It reminds me of Humpty Dumpty in Lewis Carroll's "Through the Looking Glass," when he explains to a puzzled Alice, "When I use a word, it means just what I choose it to mean — neither more nor less."
Back to basic on the defense	Top
Here are some nuggets for employers when defending discrimination claims, courtesy of the 5th U.S. Circuit Court of Appeals' Feb. 4 decision in Goring v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College . The court sketched out the facts: A professor is denied tenure, because she files her application two months late. She claims race discrimination. She timely applies the following year and gets tenure. However, after that, LSU undertakes a "post-tenure" review of her performance based on student complaints on her teaching skills. She claims retaliation for her earlier complaint to the university for its failure to grant tenure. The trial court dismisses both claims on summary judgment, and the 5th Circuit affirms. Why? On the discrimination claim, she did offer evidence that nonminority applicants submitted untimely applications that were considered. But, as the 5th Circuit noted, "[T]hese other instances involved merely de minimis variations from the deadline that are inapposite to Goring's extremely late application." Thus, no discrimination. What about the retaliation claim ? Yes, something adverse happened to her after she engaged in protected activity. But the test is not whether something happened to her that that she did like. Instead, as the court noted, for an employment action to be considered objectively adverse, it must be harmful to the point that it would dissuade a reasonable employee from making or supporting a discrimination complaint. The test is not met here, because, as the 5th Circuit noted, "[A] reasonable employee would not expect to be insulated from review of her questionable job performance simply because she filed a prior complaint of discrimination." I like this case. It talks about the basics — the blocking and tackling that it takes to mount a successful defense. Never forget the basics.

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