Nikki Nesbitt Goodell, DeVries, Leech & Dann Baltimore, Maryland

1. lessons from the office Nikki Nesbitt Goodell, DeVries, Leech & Dann Baltimore, Maryland employment law update

2. Diversity in the Workplace

4. 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?

5. United States v. Brennan 650 F.3d 65 (2nd Cir. 5/5/11) Incumbent white male employees sue for reverse discrimination

6. United States v. Brennan 650 F.3d 65 (2nd Cir. 5/5/11) • Two defenses asserted: • “Affirmative Action” • “Strong-Basis-In-Evidence”

7. 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

8. 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

9. LESSON

10. LESSON • Create fair opportunities for all groups • Make ultimate decisions on the merits • Continue to use nondiscriminatory criteria

11. PregnancyDiscrimination

13. 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

14. Appel v. Inspire Pharmaceuticals2011 WL 2203184 (5th Cir. 6/7/11) • Fifth Circuit: • No unlawful discrimination • Appropriate to terminate pregnant employee if no longer qualified for her position

15. LESSON

16. LESSON • Pregnancy is a protected status • May require reasonable accommodations but • If employee cannot perform job requirements, termination appropriate

17. ForeignWorkers

19. Teoba v. Trugreen Landcare, LLC769 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

20. Teoba v. Trugreen Landcare, LLC769 F. Supp. 2d 175 (WDNY 2/15/11) • 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

21. LESSON

22. LESSON • Foreign workers highly regulated by Department of Labor • Consult DOL’s “Field Assistant Bulletins”

23. FLSA OvertimeExemptions

25. 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

26. In re Family Dollar FLSA Litigation637 F.3d 508 (4th Cir. 3/22/11) • Fourth Circuit: • Executive exemption applies • Prevalence of non-managerial duties okay if “primary” duty is management

27. LESSON

28. LESSON • Ensure that employee has overall responsibility to see that business is running smoothly on her shift • Think, “Who’s the boss?”

29. Other FLSAExemptions

30. 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)

31. 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)

32. LESSON • Exemptions are narrowly construed • Employer bears the burden

33. Conclusion