On July 31, 2012, the 4th Circuit issued a highly unfavorable ruling to administrative employees in the case of Altemus v. Federal Realty Investment Trust. Decision available at: http://www.ca4.uscourts.gov/Opinions/Unpublished/112213.U.pdf In Altemus, the 4th Circuit held that an executive assistant was exempt under the FLSA and the MWHL and therefore not eligible to receive overtime pay for hours over 40 in a workweek. While the employee maintained, via an affidavit, that personal work for the company’s CEO took up 75 to 80 percent of her working time, the Court upheld the Maryland Federal Court’s finding that her “primary duty” related to management tasks of the company, rather than the personal work. The Court based this finding on the job description for the position and performance reviews conducted by the CEO which indicated that she played some management role. Incredibly, the Court found that the employee’s affidavit amounted only to a “scintilla of evidence” and therefore, her case could be tossed out without a jury making the important factual determination of what her primary duties were. In effect, the Court completely usurped the jury’s historic fact finding role as to what the “primary duty” of the employee was and put far more weight on a CEO’s self-serving statements in a performance review rather than a sworn statement by the employee. This decision is obviously a blow to employees who are working long hours on administrative tasks. More fundamentally, it shows that judges often fail to uphold the right of Plaintiffs to have facts determined by a jury of their peers.
