Everybody Loves a Winner

Posted by Molly DiBiancaOn November 30, 2012In: Locally Speaking, YCST

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It's so nice to get a compliment. And when the compliment comes from the ABA Journal for the fourth year in a row, it's really, really, really nice. Yes, that's right, the Delaware Employment Law Blog was selected as one of the Top 100 Legal Blogs in the country in the 6th Annual edition of the Top 100. This is the fourth consecutive year in which we've been awarded this incredible honor and, I can assure you, it is no less a surprise or a thrill this year than it was four years ago.

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To those who nominated us for the award, thank you. To all of our readers, thank you. And to all of the many, many, many employment law bloggers whose posts continue to set a very high bar, thank you.

I share the honor this year with five other employment-law bloggers, each of which does a tremendous job reporting on the various aspects our shared practice area. Most of you likely already read the blogs of my co-winners but, if you don't, you should. Here's the list:


You can vote for your favorite in the employment-law category at the ABA Journal site . . . but no pressure, really. You can find all of the Top 100 bloggers on Twitter through the ABA Journal's list.

Writing a legal blog is a labor of love. And, by that, I mean that it doesn't pay the bills. To consistently put up quality posts that are original and interesting to readers is no easy feat--especially when the demands of our day jobs can be, well, demanding. To be recognized for the hard work that goes into writing a legal blog really does mean so much. Almost as much as knowing that our readers find value in the content that we generate.

So, as Frank and Ed used to say in the class Bartles and James commercials, "Thank you for your support."

Discovery of EEOC Claimants' Social-Media Posts

Posted by Molly DiBiancaOn November 27, 2012In: EEOC Suits & Settlements, Social Media in the Workplace

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In my previous post about EEOC v. Original Honeybaked Ham Co. of Ga.,, I described a somewhat ambiguous, if not unusual, procedure for the production and review of individuals' social-media accounts ordered by a Magistrate Judge. In short, the Judge's well-reasoned decision attempted to balance the individual claimants' privacy interests with the defendant-employer's right to broad discovery of potentially relevant information. Faced with these two competing interests, the court crafted a fairly complex, multi-tiered, and dynamic process to collect, review, and produce the information from the former employees' social-media accounts.

The EEOC has filed an Objection to that decision. (An "objection" is, to put it simply, an appeal of a magistrate judge's decision to the trial judge). The objection gives us a bit more insight but a lot more questions.

The EEOC acknowledges in its objection that, since the issuance of the discovery ruling, the Magistrate Judge had revised the procedure--perhaps more than once. This indicates, and the EEOC makes clear, that the court has been and is continuing to be flexible in working with the parties towards a workable procedure. Nevertheless, we do not know what the alterations were.

One of the changes, though, is described in the Objection. Specifically, the EEOC states that the Court eliminated the appointment of a special master and, instead, designated an EEOC employee with computer-forensic qualifications to perform the collection. Under the initial Order, the claims were to turn over their log-in and passwords to their Facebook accounts to the special master, which caused a big stir among commentators. Now that the data will be harvested by EEOC personnel, perhaps the password issue is an issue no more.

But none of this addresses my bigger question--why make the process so complicated? Particularly, I wonder whether it wouldn't have been easier to have the claimants download their account information by using the tool provided by Facebook precisely for that purpose. DIY e-discovery of social-media seems to me to be a better option than the process in this case--at least the version of the process outlined in the Order.

Kansas Lawyer Fired for Profane Tweet

Posted by Molly DiBiancaOn November 27, 2012In: Purely Legal, Social Media in the Workplace

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Lawyers' use and misuse of social media is, as many readers know, a topic that I love. Although it's been a while since I posted about a lawyer's social-media "fail," it certainly isn't because of a lack of potential stories. Here's a recent story that made the headlines of the Huffington Post.

Sarah Peterson Herr was employed as a research attorney for a Kansas Court of Appeals judge when she tweeted about that State's former Attorney General, Phill Kline. At the time of the tweets, Kline was appearing before the Kansas Supreme Court as part of an ethics investigation.

The tweets weren't exactly journalistic in nature. Nor were they very complimentary of the former AG. In one, Herr asked, "Why is Phil Klein (sic) smiling? There is nothing to smile about, douchebag." How charming. In another tweet, Herr predicted that the former AG would be disbarred for seven years for his conduct during investigations of abortion providers.

It's unclear where exactly Herr was when she posted the tweets but it does seem that, if she wasn't actually present at the hearing, she was purporting to be. Either way is problematic. Judicial staff, including staff attorneys, are prohibited from commenting on pending cases, as are the judges to whom they report.

When the story broke, Herr apologized, saying that she "failed to realize her posts were readable by all Twitter readers," reports the Huffington Post. She was suspended with pay on Friday but, by Monday, the Kansas Supreme Court's Chief Justice announced that Herr had been terminated and referred to the appropriate ethics offices.

Employer Can Depose All 94 Claimants In EEOC Lawsuit

Posted by Molly DiBiancaOn November 24, 2012In: Discrimination, EEOC Suits & Settlements, Race (Title VII)

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Litigating against the the EEOC is difficult for several reasons. For one, unlike a lawsuit brought by an individual plaintiff, a suit brought by the EEOC has the resources of the entire federal government behind it. Perhaps because of the agency's bureaucratic structure, negotiating with EEOC counsel can be difficult during litigation, at times resulting in a total breakdown of communication. A recent decision by a federal court in Illinois illustrates what happens when the lawyers in an employment-discrimination lawsuit take the driver's seat to the exclusion of the individuals at the heart of the case.

EEOC v. DHL Express (USA), Inc., was brought by the EEOC on behalf of 94 claimants, alleging that DHL discriminated against its African-American driver/dockworkers based on their race by giving them less desirable, more difficult, and more dangerous route and dock assignments than their Caucasian counterparts and by assigning African-American drivers to routes in predominately African-American areas.

DHL brought a motion to compel the EEOC to produce all of the claimants for deposition after the EEOC provided interrogatory responses that included an unsworn "vignette" for each claimant with the claimants' general allegations of discrimination. DHL argued that individual depositions were required because the vignettes were vague, filled with generalities, and, in several instances, inaccurate. DHL also argued that, because there is no standard as to what constitutes a "more dangerous assignment" and no objective criteria for what constitutes "less desirable," each claimant's individual testimony was necessary to establish its defense.

The court was not impressed by the "vignettes," finding that they failed to give any meaningful detail or specifics about the alleged discriminatory treatment. Instead, the court concluded that the additional 60 depositions (DHL had deposed 34 of the 94 claimants already), were necessary not to evaluate both potential liability and damages.

The lesson to be learned from this decision, in my opinion, relates mostly to litigation strategy. By submitting these "vignettes" in response to the defendant-employer's interrogatories, the EEOC seems to have forgotten about the individual employees whose claims were the basis for the lawsuit. Had the EEOC actually provided the sworn responses of the employees instead, the need for the employer to expend its resources to take an additional 60 depositions would not have been necessary. Or, perhaps, the EEOC should have formulated a clearer understanding of its allegations before filing its Complaint. Ah, a lawyer can dream, can't she?

EEOC v. DHL Express (USA), Inc., No. 10 C 6139 (N.D. Ill. Oct. 31, 2012).

Bob Dylan's HR Lesson: Mandatory Retirement

Posted by Molly DiBiancaOn November 19, 2012In: Age (ADEA)

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I went to my second Bob Dylan concert tonight. Dylan, 71, put on a good show. A good show--but not a great show. By the end of the night, it seemed that most of the wind was out of his sails. I left the show asking myself, "How do you know when it's time to quit?" I think this is a tough question for anyone who loves what they do and really hard for anyone who is great at what they do.

The same question could be asked about lawyers and judges. Six Pennsylvania judges have taken the question to the State's supreme court, where they've filed a lawsuit alleging their constitutional rights are being violated by a provision in the State constitution that mandates the retirement of all state-court judges before they turn 71.

A similar provision in Missouri was upheld by the U.S. Supreme Court in 1990 but the PA judges hope that changes in the way the Court interprets the 14th Amendment's Equal Protection Clause and what science says about the effects of aging. Currently, 33 states and the District of Columbia impose age restrictions on judges.

Employees Must Turn Over Facebook Info For Harassment Claim

Posted by Molly DiBiancaOn November 19, 2012In: Harassment, Harassment, Sexual, Social Media in the Workplace

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The discoverability of social-media evidence is far from a settled question. Many of the few cases that have addressed the question are employment claims. And the latest such decision is no exception. In EEOC v. Original Honeybaked Ham Company of Georgia, Inc., No. 11-02560-MSK_MEH (D. Col. Nov. 7, 2012), the Colorado District Court granted an employer's motion to compel and required the employee-class members to turn over their log-in and passwords to a special master, who would make an initial determination of discoverability.

The EEOC filed suit on behalf of approximately 20 female employees, who, the EEOC alleged, had been subject to unlawful sexual harassment and retaliation by their former employer. The defendant-employer sought to compel the class members to produce unredacted versions of their social-media accounts.

The court first reminded the parties that it was determining what was discoverable--not what would be admissible at trial. The court next acknowledged that discovery of social-media information is a "thorny and novel" area of the law. Then the court reached its first substantive conclusion:

The fact that [information] exists in cyberspace on an electronic device is a logistical and, perhaps, financial problem, but not a circumstance that removes the information from accessibility by a party opponent in litigation.

Based on that conclusion as its starting point, the court then turned to the question at hand. First, the court concluded that the evidence was discoverable. This finding was based on postings by one of the former employees to her Facebook page. In those posts, the employee discussed her financial expectations in the lawsuit; sexually amorous communications with other class members, and post-termination employment and income, to name a few. Other class members posted comments to this individual's Facebook page.

The court then discussed the privacy interests of the class members and concluded that a process was needed to ensure that only relevant, discoverable information would be gathered. To do this, the court would appoint a forensic expert a special master. The court ordered the employees to provide "directly and confidentially to the special master," all "necessary information to access any social media website" the employee had used during the relevant time period.

The parties are then to submit a joint questionnaire for the special master to use in gathering the information. The special master would then provide the court with a hard copy of all of the information yielded by the process and the court would conduct an in camera review. The court would review the information for relevancy and turn over only what was relevant to the EEOC.

So, what's to be learned from this decision? First, litigants are going to continue to bring this issue to the court. Second, parties are going to continue to post information relevant to their claims on social-media accounts. And, third, the courts are going to continue to struggle with the best way to order such information be produced.

In this case, with a class of claimants, there does seem to be some justification for the incredible use of the court's resources and time but, more often than not, such justifications will not be present. And in those cases, what is the appropriate process for the collection, review, and production of social media? That remains to be seen.

6th Cir. Affirms Dismissal of FLSA Gotcha Litigation

Posted by Molly DiBiancaOn November 12, 2012In: Fair Labor Standards Act (FLSA), Wages and Benefits

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FLSA lawsuits based on missed meal breaks and automatic-deduction policies are one of many current trends in of wage-and-hour litigation. Meal-break claims brought by nurses and hospital staff are a particularly common scenario. But employers in the health-care sector need not give up hope, as there have been several recent opinions in favor of the employer in such cases. See FLSA Victory, Class Certification Denied. A recent decision by the 6th Circuit offers another positive example.

In White v. Baptist Memorial Health Care Corporation, (6th Cir. Nov. 6, 2012),the plaintiff, an ER nurse, did not have regularly scheduled meal breaks but was permitted to take them as the demands of her work allowed. The hospital had an automatic-deduction policy, whereby 30 minutes were deducted from time worked unless the employee submitted a time-exception form. The plaintiff in the case did not submit the form when she missed her meal break and did not complain that she was not being paid for that time.

After the district court awarded summary judgment to the employer, the employee appealed to the Sixth Circuit. The appellate court affirmed the decision, finding that the employee's failure to comply with the hospital's procedures by submitting the time-exception form precluded the hospital from knowing about the unreported time.
This line of reasoning is similar to the affirmative defense available to employers in harassment lawsuits. The theory behind it is that an employer cannot be held liable for conduct of which it does not know. The burden to report unlawful harassment--and, in this case, unpaid time--falls to the employee.

This is not only a logical holding but, also, an important one for employers. It supports the idea that an employee will not be permitted to sit on information and wait to use it against her employer whenever she's so inclined. The decision is a bar against "Gotcha" litigation, which I've also described as "Legal Extortion." With any luck, federal courts will continue to embrace this approach in similar FLSA cases and collective actions.

Dealing With Difficult People

Posted by Molly DiBiancaOn November 5, 2012In: Delaware Specific, Jerks at Work

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We deal with difficult people everywhere, really. At work, we may have to deal with difficult people as co-workers, as customers, as vendors, and as bosses, just to name a few.
Difficult people come in all shapes and sizes. The street bully is the difficult person who are yells and throws insults to get his or her way. The silent killer uses passive-aggressive tactics to wage wars based on sabotage. In today's post, though, I have in mind the rough and rude bully type--the difficult person who pushes his or her way around like a bull in a china store and expects everyone to jump into action at his or her command.

The ABA Journal recently asked its readers how they deal with difficult people of a particularly difficult variety--opposing counsel in litigation. As a general rule, I have had very positive relationships with opposing counsel. In fact, many of my opposing counsel have become very good friends of mine, whose friendship I value tremendously. Particularly in Delaware, where we value civility and professionalism as a foundation of the practice of law, my interactions with the lawyer on the other side of the table is a positive one more often than not.

That said, there certainly have been times when I have had to deal with a lawyer on the other side who, it seems to me, insists on being unreasonable or who routinely uses bully tactics in an effort to get his or her way. These interactions trouble me a great deal and, unfortunately, tend to change the way the case is litigated. Perhaps it is because this happens so infrequently (thank goodness), that I have given these bullies a good deal of thought once the interaction or case is over.

There are a few mantras that I do my best to remember when getting screamed at by another lawyer or having to deal with a lawyer who uses threats as strategy. I share them here both as a reminder to myself and in the hopes that readers may be able to put them to use in their time of need.

Mean people are scared people.
If my opposing counsel is yelling at me, I know he's scared of something I've said or he thinks I am going to say. Either I have an actual advantage or he thinks I do. I'm happy to have either.

A lawyer who can't control his temper can't control his case.
If my opposing counsel spends hours writing lengthy letters and multiple emails filled with ridicule and scathing commentary, he is not spending his time preparing his case, reviewing the facts, or coming up with new legal arguments and strategy. A distracted opponent is fine by me.

Sticks 'n stones may break my bones (and even hurt my feelings), but they won't affect my client's case.
At the end of the case, nasty comments and raised voices are irrelevant. The outcome of the case--whether by settlement, by verdict, or by judicial decision--will not include a scorecard of baseless accusations made or declare a winner for worst-mannered, most uncivil lawyer. The case will be decided on the application of the law to facts, as argued by the more effective lawyer, so it's best not to focus on anything else.

So, turning back to the question posed by the ABA Journal, "how do you deal with rude opposing counsel?" My answer is easy. I win.

Harassment Prevention: It's All Fun and Games . . . Until It's Not

Posted by Lauren Moak RussellOn November 4, 2012In: Discrimination & Harassment, EEOC Suits & Settlements, Harassment, Harassment, Other (Title VII), Race (Title VII)

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Workplace anti-harassment training can be summarized with the title of this post. The fact that an employee laughs at an inappropriate joke is not a legal defense to a later claim at harassment. Nor is an employee's failure to object to inappropriate workplace conduct. One employer recently learned this lesson the hard way.

In the case of EEOC v. Holmes & Holmes Industrial, Inc., the EEOC filed suit against a construction company on behalf of several Black employees, alleging hostile work environment claims. To succeed in a case alleging discrimination based on a hostile work environment, a plaintiff must prove that he or she was subject to (1) intentional discrimination, that was (2) severe or pervasive (3) and subjectively offensive to the plaintiff, and (4) that would be objectively offensive to a reasonable person in the plaintiff's position.

In support of its claims against Holmes & Holmes, EEOC asserts that the employee-claimants faced frequent, racially-charged comments from their managers and co-workers. EEOC also contended that supervisors frequently told racial jokes. In response, the employer argued that the employees engaged in similar conduct, frequently using racial slurs and terms.

Following the conclusion of discovery, the EEOC moved for summary judgment--and won! The Court granted partial summary judgment, concluding that the EEOC had proved elements one, two, and four of its claims. The Court's decision noted that the EEOC had brought the "rare case where there is no dispute as to the pervasiveness of the conduct in question. No reasonable jury could find that a reasonable African-American would not be offended by this conduct."

The Court rejected the employer's argument that the employees' participation in the misconduct indicated that it wasn't offensive. Instead, the Court left for the jury the question of whether the employees were willing participants in the harassment.
The employer now finds itself in the unenviable position of going to trial in a case with very bad facts.

The lesson to be learned may be easier said than done but absolutely essential in preventing litigation and limiting liability--inappropriate or off-color jokes do not belong in the workplace, regardless of who you seems to find them funny. Really, there's absolutely nothing funny about being suied for unlawful employment discrimination.

NJ Passes Password-Protection Law for Employees and Students

Posted by Molly DiBiancaOn October 30, 2012In: Privacy In the Workplace, Privacy Rights of Employees, Social Media in the Workplace

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New Jersey is the latest State to prohibit employers from requesting the passwords of employees and applicants. The N.J. Senate passed A2878 on October 25, 2012. The bill also prohibits employers from any kind of inquiry into whether the employee has an account on a social-networking site and from requiring that the employee or applicant grant the employer access to his or her social-networking account.
Although the Bill passed the Senate unopposed, the added exemption of law-enforcement agencies requires that the Bill be returned to the Assembly for approval before being sent to the Governor for approval, reports CBS New York.

Following Maryland, Illinois, and California, New Jersey is the fourth State in the country to pass a "Facebook-privacy" law applicable to employers.

New Jersey also passed a piece of sister legislation extending the prohibition to colleges and universities. That law passed the N.J. Senate unanimously and will prohibits educational instiuttions from requiring a student to disclose any user name, password or other means for accessing a personal social-networking site. Delaware and California are the only other states in the country with similar prohibiitons.

It's no secret that I am hardly a fan of these laws, which attempt to vigorously legislate a problem that does not exist. When I think of my friends and loved ones who have just experienced the loss and devastation resulting from Hurricane Sandy, I can't help but wonder whether the New Jersey legislature couldn't have found something better to make laws about.

Employment Discrimination and Domestic Violence

Posted by Molly DiBiancaOn October 30, 2012In: Disabilities (ADA), Discrimination, Discrimination & Harassment, Gender (Title VII)

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Northern Delaware managed to escape Sandy largely unscathed, I feel very lucky to say. Our thoughts are with those who are still without power and, especially, with those whose homes were damaged by the storm. I am grateful to be able to return to work, though. In the spirit of maintaining normalcy, today's post is not going to focus on hurricanes, floods, or other natural disasters. Just employment law. Stay safe, everyone.

No federal employment law expressly prohibits discrimination against an employee because of the employee's involvement in domestic violence. For many employers, the idea of intentionally discriminating against a victim of domestic violence may be difficult to envision, even. I have seen this issue manifested in a few different contexts.

First, there's the employee who is chronically absent from work as a result of domestic violence at home. In that case, the employer wants to know whether it is lawful to discipline the employee for her absenteeism, or whether it must permit her some type of leeway because the absences are not merely a result of the employee playing "hooky." This question is particularly difficult when the employer's attendance policy distinguishes between "excused" and "unexcused" absences.

Second, there's the employer who wants to terminate an employee who is involved with a violent domestic partner for fear that the partner will carry out a violent act in the workplace. This usually arises when the employer learns that the partner has been stalking the employee, often on or just outside the employer's property. In that case, the employer is concerned about protecting its employees and wants to prevent a workplace shooting or similarly tragic event. This issue is as complicated as the first scenario, above, because it proposes that it is better to save the flock than a single sheep.

But where does Title VII and the ADA come into play in these and other situations involving domestic violence? The EEOC's most recent fact sheet addresses this question and offers some thought-provoking answers. The fact sheet offers some examples of how the federal anti-discrimination laws may apply to employment situations involving applicants and employees who experience domestic or dating violence, sexual assault, or stalking. Many of the examples are not as much about domestic violence as they are about anti-retaliation and anti-harassment. For instance, the fact sheet explains that an employee who is given less favorable assignments after reporting that she was raped by a manager during a business trip. This example is, in my opinion, a bit obvious and not precisely within the framework of domestic-violence discrimination.

But a more provocative item on the fact sheet is the "Answer" that concludes that an employer who terminates an employee after learning she has been subjected to domestic violence, saying that he fears the potential 'drama battered women bring to the workplace.' On the whole, I would agree that this sort of gender-based stereotype likely violates Title VII. The trouble that I have with it, though, is that it's a bit conclusory on the question of intent.

I can easily imagine a scenario like the one I described above, when an employer decides to terminate a female employee whose husband has appeared at the workplace and threatened the employee or even her coworkers. Worried about the likelihood of future disruptions and potential violence, the employer considers whether it owes a duty to its other employees to prevent such incidents by terminating the victim. Although it would be easy to assume the worst by concluding that the employer just wanted to avoid the "drama" associated with battered women, it may be a more legitimate fear that drives the employer's decision.

Employment decisions are never easy. Employers often have to make tough calls and, rightfully so, worry that their choices will be later challenged as unlawful. The best starting point for these tough choices is to ask, "what's fair?" It's no coincidence that an honest answer to that question also is usually the most legally defensible position.

A Hurricane's a Coming!

Posted by Molly DiBiancaOn October 28, 2012In: Policies

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Hurricane Sandy is heading right for Delaware; Gov. Markell announced a state of emergency earlier today. The hurricane is forecasted to be the second worst in recorded history. Our neighbors in Pennsylvania, New Jersey, and Maryland are facing similarly treacherous weather conditions in the coming days. In light of the anticipated power outages, it's likely that things on the blog will be quiet for the next few days.
sandy.jpg

Until then, here are some of our previous posts on emergency preparedness for employers:

State of Emergency: Liability for Employers During Inclement Weather

Workplace Crisis Management (Earthquake)

Must Exempt Employees Be Paid During Snow Days?

And one from Dan Schwartz in Connecticut relating to Hurricane Sandy.

Hopefully, we'll be back up and running soon. In the meantime, we'll be doing our best to stay dry.

In the U.S. Unlawfully But Eligible for Workers' Comp?

Posted by Molly DiBiancaOn October 25, 2012In: Benefits, Cases of Note, Delaware Specific, Hiring

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Is an employee who is in the country illegally a covered "employee" under the Workers' Compensation laws? That was the question of first impression presented to the Delaware Superior Court in Del. Valley Field Servs. v. Ramirez, (PDF) No. 12A-01-007-JOH (Sep. 13, 2012). The court concluded that the answer is "yes," and ordered that the former employee, who has since been deported to Honduras, is eligible to receive benefits under Delaware's workers-compensation statute.

Facts
The employee, Saul Melgar Ramirez, was hired in April 2010 as an "independent contractor'"--which the term the court uses to say that Ramirez was paid in cash. In January 2011, he was converted to a regular employee and added to the payroll. When told by his boss that he would need a Social Security number for his I-9 documentation, Ramirez bought a fake SSN card for $180. In February, the payroll service informed the employer that the number was false. Ramirez was deported in March.

In late January, shortly after he was converted to employee status, Ramirez fell down six steps and landed on his back. The company's president, who witnessed the fall, reported the accident to the company's workers' compensation carrier and made arrangements for Ramirez to get medical treatment. The treating physician determined that Ramirez was totally disabled.

Issues
The Industrial Board awarded benefits to Ramirez. (See Cassandra Robert's cleverly named post about the Board's decision, The Dearly Deported--Illegal Alien Status Does Not Work a Forfeiture in Delaware). The employer appealed to the Delaware Superior Court, where it made several arguments, including:

  • the employee's "fraudulent inducement" in obtaining the job disqualified him from receiving benefits;
  • because, pursuant to the federal immigration laws, Ramirez could not be lawfully hired, those laws preempted the State's workers' compensation laws; and
  • the employee's exclusion from the U.S. was the equivalent of being incarcerated, which would result in the suspension of benefits.
Judge Herlihy rejected each of the three arguments in turn and concluded that, despite his status as an illegal alien at the time of his employment, Ramirez was not disqualified from receiving workers' compensation benefits.

Nuts and Bolts
Regular readers may be mildly surprised to read that I actually side with the employee in this case. Not so much because of complicated legal reasons but more because of the basic facts. The employer hired Ramirez. The basic employment relationship involves the performance of services by the employee and the provision of certain compensation and benefits by the employer in return. One of those benefits is workers' compensation insurance.

Here, there is no dispute that Ramirez performed the services for which he was hired. Thus, the employer received the bargained-for benefit of the employment relationship. Ramirez, in return, was entitled to receive, in exchange, the benefits for which he had bargained, including wages for work performed and workers' compensation insurance.

There is no dispute that Ramirez was injured during the course and scope of his employment and there appears to be no dispute as to the extent of his injuries. Thus, it seems fair to me that he receive the benefits of the employment relationship, just as his employer did.

Feel free to disagree with me--I'm open to different opinions. Sean O'Sullivan reported the case in an excellent article in the News Journal today and notes that the case has been appealed to the Delaware Supreme Court. So we'll keep you posted.

Judge's Porn Habit Results In Suspension

Posted by Molly DiBiancaOn October 23, 2012In: Electronic Monitoring

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Under the Computer Fraud and Abuse Act (CFAA), an individual who wrongfully accesses information stored on a computer can be held civilly and/or criminally liable. Employers have attempted to use the CFAA to prosecute employees who steal the company's confidential information. Different jurisdictions have come down differently on the question of whether the CFAA can be used in the employment context.

What many employers do not know, though, is that almost every State, including Delaware, has a statute similar to the federal CFAA. And some such laws, including Delaware's, have provisions with even more severe penalties than their federal counterpart. Here's an unusual example of a State statute similar to the CFAA applied in the employment context.

State ex rel Oklahoma Bar Ass'n v. Olmstead, is a case of lawyer discipline. The lawyer was an elected judge in Harper County, Oklahoma, when he downloaded a "tremendous" volume of adult pornography on his State-issued computer. When the conduct was discovered, the judge resigned and was charged with 19 felony counts under Oklahoma's Computer Crimes Act, which would have required a prison sentence of between 30 days and 10 years for each count. The lawyer pleaded no contest to a single violation of the statute and was given a one-year deferred sentence.

After undergoing a mental-health evaluation, the trial panel recommended that the lawyer be subject to public censure for his violations of the disciplinary rules. The State Bar Association, though, argued that public censure was insufficient and urged the Oklahoma Supreme Court to issue a suspension under the State's rules of professional conduct.

The State's Supreme Court agreed, finding that the former judge's conduct "brought such disrepute upon the legal profession and the judiciary that significant is warranted." The Court went on to explain that "The act of downloading adult sexually suggestive materials in tremendous volume on a State owned computer is a very serious offense which should not be minimized."

EEOC Wins Summary Judgment in Balt. Co. Pension Case

Posted by Molly DiBiancaOn October 22, 2012In: Age (ADEA), Benefits, EEOC Suits & Settlements

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EEOC was awarded summary judgment by a federal court in Maryland last week. The court found that Baltimore County's pension plan violates the ADEA in EEOC v. Baltimore County, Civil No. L-07-2500-BEL (D. Md. Oct. 17, 2012).

The Plan
All full-time employees under age 59 were required to participate in the Plan. Employees were required to contribute to the Plan at different rates based on the age at which they joined, so that the contribution would be sufficient to fund approximately one-half of his or her final retirement benefit, with the other half to be funded by the County. Older workers were required to contribute a higher percentage of their salary than younger workers because their contributions would have less time before retirement to accrue earnings. For example, a laborer who became a member of the Plan at age 25 was required to contribute 2.75%, whereas a laborer who joined at age 45 was required to contribute 4%. The Plan was changed in 2007 so that new employees were required to contribute at a flat rate, regardless of their age at the time they were hired.

The Litigation
In 2007, the EEOC filed suit on behalf of older County employees who had been hired under the original terms of the Plan. The District Court granted summary judgment to the County in 2008, finding that the Plan did not violate the ADEA because the disparate contribution rates were justified by a permissible financial consideration--the time value of money. The Court reasoned that the system was not based on age but on the number of years an employee had until reaching retirement age. The EEOC appealed and the Fourth Circuit vacated the judgment and remanded the case.

The Decision
On remand, the District Court determined that there are no non-age-related financial considerations that justify the disparity in contribution rates. In other words, the Court concluded that the County charged different contribution rates to different employees based on age and, therefore, age is the "but-for" cause of the disparate treatment in violation of the ADEA.

See also, EEOC press release.