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Implicit bias occurs when individuals make judgments about people based on gender, race or other prohibited factors without even realizing they’re doing it.
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A contract attorney who performed document review for a law firm can pursue a Fair Labor Standards Act (FLSA) action for overtime pay because he plausibly alleged that his tightly prescribed work was not tantamount to the practice of law, the 2nd U.S. Circuit Court of Appeals ruled.
The FLSA requires employees to be paid time-and-a-half for time worked in excess of 40 hours a week. But there are several exemptions, including one for licensed attorneys and doctors who are “actually engaged in the practice” of law or medicine.
David Lola was hired by Skadden, Arps, Slate, Meagher & Flom to review documents for a complex lawsuit to check whether predetermined search terms were present. He then had to categorize the documents based on those terms and draw black boxes around certain portions of text based on predetermined criteria.
Don’t assume that an employee with an advanced degree or credential will automatically qualify for one of the FLSA exemptions.
He argued that he was not exempt from the overtime pay requirements because this work did not amount to the practice of law. The law firm argued that Lola was in fact exempt because it had hired him as a licensed attorney.
The trial court in New York agreed with the firm, but the 2nd Circuit did not, concluding that, if Lola’s work was as controlled as he described, he did not qualify for the FLSA’s lawyer exemption and thus would be entitled to overtime.
Changing Reason for Firing Supports Bias Claim
An employee’s disability discrimination claim should not have been dismissed before trial when the employer’s reason for the firing changed, the 5th U.S. Circuit Court of Appeals ruled. The employer initially claimed that the worker was terminated for damaging company property and failing to comply with its policies but later stated that the discharge was based on poor job performance. However, the termination decision was made in late June while the documentation of the employee’s poor performance wasn’t created until July, showing that the reason given for the firing was a pretense.
Home Health Care Worker Wage Rule Reinstated
The U.S. Court of Appeals for the D.C. Circuit reinstated the U.S. Department of Labor’s regulations extending the federal minimum wage and overtime requirements for home health care workers employed by third parties. The decision overturns a lower court decision that struck down the new regulations just before they were scheduled to go into effect at the beginning of 2015.
Paid Suspension Not Adverse Employment Action
A paid suspension was not an adverse employment action under the nondiscrimination provision of Title VII of the Civil Rights Act of 1964, the 3rd U.S. Circuit Court of Appeals held. The employee was suspended, with pay, while her employer investigated allegations that she had submitted fraudulent timesheets. The trial court concluded, and the appellate court agreed, that placing an employee on paid administrative leave is not an adverse action because it does not change compensation or alter the terms, conditions or privileges of employment.
Whitney R. Brown is an attorney with Lehr Middlebrooks Vreeland & Thompson, the Worklaw® Network member firm in Birmingham, Ala.
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