lessons from the office

employment law update

Nikki NesbittGoodell, DeVries, Leech & Dann

Baltimore, Maryland

Diversity in the Workplace

United States v. Brennan 650 F.3d 65 (2nd Cir. 5/5/11)

• School board settles discriminatory hiring claim• Settlement agreement calls for applying

retroactive senior status to minority and female employees

• What happens next?

United States v. Brennan 650 F.3d 65 (2nd Cir. 5/5/11)

Incumbent white male employees sue for reverse discrimination

United States v. Brennan 650 F.3d 65 (2nd Cir. 5/5/11)

• Two defenses asserted:– “Affirmative Action” – “Strong-Basis-In-Evidence”

United States v. Brennan 650 F.3d 65 (2nd Cir. 5/5/11)

• Second Circuit:– Affirmative action defense not applicable – The “plan” only benefitted existing

employees and not all members of the protected class

United States v. Brennan 650 F.3d 65 (2nd Cir. 5/5/11)

• Strong-basis-in-evidence defense might apply

• School board must show:– it was faced with liability for disparate impact

– Court likely to impose make-whole remedy equal to or broader than what school board agreed to do

LESSON

LESSON

• Create fair opportunities for all groups

• Make ultimate decisions on the merits

• Continue to use nondiscriminatory criteria

PregnancyDiscrimination

Appel v. Inspire Pharmaceuticals2011 WL 2203184 (5th Cir. 6/7/11)

• Territory rep terminated after disclosing high risk pregnancy

• Employer claimed employee’s pregnancy made it impossible for her to perform job requirements

• Fifth Circuit:– No unlawful discrimination– Appropriate to terminate pregnant employee

if no longer qualified for her position

Appel v. Inspire Pharmaceuticals2011 WL 2203184 (5th Cir. 6/7/11)

LESSON

LESSON

• Pregnancy is a protected status

• May require reasonable accommodations

but

• If employee cannot perform job requirements, termination appropriate

ForeignWorkers

Teoba v. Trugreen Landcare, LLC

769 F. Supp. 2d 175 (WDNY 2/15/11)• Putative class action of landscapers under FLSA

• Employer required workers to pay their own visa fees and transportation costs, effectively reducing wages

• Employer argued minimum wage requirements not applicable until workers are physically in the United States

• W.D.N.Y.:– FLSA protections do apply in this context

– Payment of fees and transportation costs done to facilitate work within United States

– Therefore they are part of wages earned in United States

Teoba v. Trugreen Landcare, LLC

769 F. Supp. 2d 175 (WDNY 2/15/11)

LESSON

LESSON

• Foreign workers highly regulated by Department of Labor

• Consult DOL’s “Field Assistant Bulletins”

FLSA OvertimeExemptions

In re Family Dollar FLSA Litigation637 F.3d 508 (4th Cir. 3/22/11)

• Store managers claimed they didn’t do much managing

• Employer countered that as managers on duty, they qualified for executive exemption

• Fourth Circuit:– Executive exemption applies– Prevalence of non-managerial duties okay

if “primary” duty is management

In re Family Dollar FLSA Litigation637 F.3d 508 (4th Cir. 3/22/11)

LESSON

LESSON

• Ensure that employee has overall responsibility to see that business is running smoothly on her shift

• Think, “Who’s the boss?”

Other FLSAExemptions

Other FLSA Exemptions

• Administrative exemption: applies if the employee performs work directly relating to assisting with the running or servicing of the business

• Held applicable to computer engineer at telecommunications provider

Swartz v. Windstream Communications, Inc.,2011 WL 2036363 (3d Cir. 5/25/11)

Other FLSA Exemptions

• Sales exemption: must take into account the structure and realities of the industry at issue

• Held applicable to pharmaceutical sales reps

Christopher v. Smithkline, 635 F.3d 383 (9th Cir. 2/14/11)

LESSON

• Exemptions are narrowly construed

• Employer bears the burden

Conclusion