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

2. Diversity in the Workplace

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

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

7. United States v. Brennan 650 F.3d 65 (2 nd 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 (2 nd 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. Create fair opportunities for all groups Make ultimate decisions on the merits Continue to use nondiscriminatory criteria

11. Pregnancy Discrimination

13. Appel v. Inspire Pharmaceuticals 2011 WL 2203184 (5 th 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. Fifth Circuit: –No unlawful discrimination –Appropriate to terminate pregnant employee if no longer qualified for her position Appel v. Inspire Pharmaceuticals 2011 WL 2203184 (5 th Cir. 6/7/11)

15. LESSON

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

17. Foreign Workers

19. 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

20. 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)

21. LESSON

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

23. FLSA Overtime Exemptions

25. In re Family Dollar FLSA Litigation 637 F.3d 508 (4 th 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. Fourth Circuit: –Executive exemption applies –Prevalence of non-managerial duties okay if “primary” duty is management In re Family Dollar FLSA Litigation 637 F.3d 508 (4 th Cir. 3/22/11)

27. LESSON

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

29. Other FLSA Exemptions

30. 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 (9 th Cir. 2/14/11)

32. LESSON Exemptions are narrowly construed Employer bears the burden

33. Conclusion