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.

This lawsuit, which we’ll file in the category of “Ultimate Jerks at Work,” was reported by Kashmir Hill on Forbes.com. Here’s the story, as alleged in the lawsuit.

Jonathan Bruns was working for a staffing agency when he was placed with a company in Houston, Texas. According to the complaint, Bruns asked if he could charge his cellphone in a wall outlet. His supervisor, Pete Offenhauser, obliged.

Apparently, after Offenhauser approved the request, he unplugged the phone from the wall and into his laptop. Once the phone was connected, Offenhauser had access to the pictures Bruns had stored on his phone. Among them were photos of Bruns’ fiancee.

In the photos, Bruns’ fiancee was, er, uh, nude.

What did Offenhauser do next? Oh, come on, I think we all know. He called everyone in the office over to his laptop. Once the whole group was gathered ’round, he showed them Bruns’ photos. Bruns walked in and saw the goings on. When he asked what all the excitement was about, he was greeted with “laughs and inappropriate comments,” many of which were made by his boss.

Bruns and his fiancee filed suit against the company, alleging invasion of privacy. This is not exactly a surprise, I’d say. But why not sue the supervisor, Offenhauser, individually? Well, presumably, because he was acting in his capacity as a supervisor at the time of the alleged conduct. But the alleged acts were, after all, tortious in nature, so there would likely be a claim against him, as well as against the company. The company, however, is more likely to have the money to pay.

And that, dear readers, is how the pixels crumble.

I am writing this post from a train on Amtrak’s Northeast Regional line. The train’s next stop is Bridgeport. But that is not my stop. I am heading all the way to New London, Connecticut. For those of you lucky enough not to have the train schedule memorized, my destination means I’ll have been onboard for about 5 hours by the time I depart.

I really hate riding the train. Yes, I know, “hate” is a strong word and, perhaps, too strong in this context. But I really dislike taking the train. I get lo-grade motion sickness–just enough to drain my energy but not enough that I could justify not taking the train for certain trips.

I don’t like co-passengers who ever-so-slowly eat tuna-salad sandwiches that they brought with them. I don’t like Amtrak’s promises of “Wi-Fi Hot Spot,” which is repeated on stickers plastered all over the interior of the train but which must have been intended as a joke because I have yet to get an Internet connection that lasted for more than 30 seconds. I don’t like mean women in the Quiet Car, who “shhhhhh” and wag their fingers at any passenger who dares to so much as cough.

And I really don’t like that I have get back on this train tomorrow and do it all over again, just heading in the opposite direction.

So why, then, am I on the train? Because I can’t say “no.” Well, that’s not entirely true. I can’t say “no” to people I like. Which is why, when my boss “suggested” that I should accept a speaking engagement in Connecticut in late October because it would be “great exposure for the firm,” and I “suggested” that I probably shouldn’t due the already dizzying number of commitments I had in late October, and he continued to “suggest,” and I continued to “suggest,” eventually, I was the first to abandon my suggestion and accept the gig.

As I boarded the train this morning, miserable utterances just waiting to be uttered, I had to remember that I was the only one to blame. Had I stuck to my initial answer, which I knew was the right one, I wouldn’t be spending 11 hours in 2 days on this train with lo-grade motion sickness.

But I didn’t stick with it. I caved. I said “yes,” when I knew that “no” was the right answer. And I am the only fool to blame. Learning when to say “no” and how to actually stick with it are important skills. And, for me anyway, they’re learned skills that take lots of practice, apparently. I’m still hoping that I’ll figure it out one of these days.

In the meantime, though, I know that, once I de-board, free of the smell of tunafish, I will have a great time in Connecticut. And I’m sure that the event will be a hit, that I’ll meet at least a few new people, probably see at least one person I already know. And the post-presentation seminar high that I will surely have will make at least part of the train ride home tomorrow less nauseating.

Here’s to hoping!

I never discuss politics. Never. I don’t have the stomach for it, to be honest, and I avoid the subject like the plague. That said, I did manage to watch part of the Presidential Debate on Tuesday night. There are ample pundits who surely have more insightful (i.e., political) commentary than what I can offer. So I’ll gladly leave the politics to others and stick with what I know–employment law. Here’s one HR-related lesson that I took away from the debate.

One of the hottest topics of post- debate discussion was Mitt Romney’s comment about “binders full of women.” I’ll admit–when I heard him say that, I cringed. It just sounded so wrong.

But I’ll admit that I cringed for another reason. I assume Mr. Romney did not actually plan to say that he’d looked at “binders full of women.” Surely he meant to say that he’d reviewed binders full of resumes of female candidates. But, alas, those were not the words that he said. And now he’s stuck with the ones he did say.

And that’s the lesson for HR professionals. Be careful with your words–they’re hard to get rid of once they’ve been said and even more difficult to escape once they’ve been committed to paper.

I used to teach a seminar called, “Help Me Help You.” The theme of the seminar was effective documentation for supervisors and HR professionals. My slide deck consisted of real-life examples of documentation “done wrong.” One slide, for example, showed an excerpt of hand-written notes taken by a supervisor who later became the alleged wrongdoer in an age-discrimination case. He’d taken the notes during a pitch presentation by an outside vendor and had written, “would be good work for young project managers.”

What he meant, he explained at his deposition, was that the work offered good opportunities for junior project managers–not necessarily young ones. I have no doubt that his explanation was an honest one. But that didn’t make it any less uncomfortable when asked about it by the EEOC attorney who was deposing him.

There are more stories like this than I can possibly recount–although someday I may try if I ever getting around to writing my memoir of life as an employment lawyer. The point, though, is this: Words are cheap. Their consequences can be very, very costly. So choose wisely.

Ask any employment lawyer what the worst employment law is and I’d be willing to bet the overwhelming majority would answer, “the FLSA.” Although the Fair Labor Standards Act (FLSA) was written with the right idea in mind–to ensure employees are paid for the work that they perform–the law is sorely out of date and subject to gross abuse by employees and employees’ lawyers. Most of the FLSA cases I see look more like extortion than enforcement actions.

Despite the law’s rampant abuse, the number of suits filed under the FLSA continue to increase. There are any number of reasons for this. One (big) reason is the potential recovery for the plaintiffs’ lawyers. A victorious plaintiff in an FLSA claim is entitled to recover all of his reasonable attorney’s fees and costs. When the parties reach a settlement–which is overwhelmingly the case–the employees’ lawyer usually gets one-third of his clients’ recovery, often resulting in a disproportionately large payday for the lawyer even when his client receives a small sum.

Another reason for the popularity of FLSA claims is the easy standard for conditional certification. The burden is very, very low for a plaintiff seeking to conditionally certify a class of employees. And, once certification is granted, the likelihood of settlement increases exponentially.

Which is why I get particularly excited when I read about a decision denying conditional certification of a collective action under the FLSA. One such decision, Pennington v. Integrity Communications, LLC, was issued by a federal court in Missouri on October 11, 2012.

In Pennington, the two plaintiffs worked as cable installers. They alleged that they were improperly classified as independent contractors. They contended that they should have been classified as employees and, consequently, were owed back-pay overtime and other damages. The plaintiffs moved to conditionally certify a class of similiarly situated individuals and notify potential class members.

The court reiterated that the burden on the plaintiffs at this stage is low, explaining that, typically a motion for conditional certification is decided only on the plaintiffs’ affidavits. Here, the plaintiffs had, indeed, submitted affidavits, in which they averred that they regularly worked more than 40 hours per week–specifically, they averred that they worked, on average between 50 and “at least” 70 hours per week. The plaintiffs also averred that they were aware of other cable installers, who similarly worked more than 40 hours per week.

What the plaintiffs did not aver, however, was that those other installers weren’t paid at an overtime rate for those hours worked over 40 in a workweek. Because of this omission, the court denied the plaintiffs’ motion for conditional certification, finding that they’d failed to meet their burden to point to similarly situated individuals. As a result, the court denied the motion to certify a class.

And that is good news for employers. But there’s bad news, too. The decision is not a total victory for the employer. The plaintiffs will get another bite at the proverbial apple and are entitled to re-file their motion with revised affidavits. Nevertheless, every small win under the FLSA is an important one. And it’s important that the court adhered to the proper standard, instead of granting the motion in a rubber-stamp manner.

Pennington v. Integrity Commun’s, LLC, No. 1:12-cv-5 SNLJ, 2012 U.S. Dist. LEXIS 146296 (E.D. Mo. Oct. 11, 2012).

See also
The Legality of Automatically Deducting Meal Breaks
Here’s to [My] Job Security
The FLSA Is Legal Extortion of Employers
Top 10 FLSA Blogs

Earlier this month, the President proclaimed October 2012 National Disability Employment Awareness Month (NDEAM). The observance is intended to raise awareness about disability employment issues and to celebrate the contributions of our country’s workers with disabilities. This year’s theme is “A Strong Workforce is an Inclusive Workforce: What Can YOU Do?”

In conjunction with NDEAM, he U.S. Department of Labor has launched an online Workplace Flexibility Toolkit to “provide employees, job seekers, employers, policymakers and researchers with information, resources and a unique approach to workplace flexibility.”

According to the U.S. DOL, the toolkit “points visitors to case studies, fact and tip sheets, issue briefs, reports, articles, websites with additional information, other related toolkits and a list of frequently asked questions. It is searchable by type of resource, target audience and types of workplace flexibility, including place, time and task.”

Should an employer take a stance on political issues? This is a complicated question. On one hand, consider the negative publicity Chick-Fil-A received when the franchisor confirmed that it opposed same-sex marriage. The ripple effects were far reaching. Franchisees, who had not voice a position, faced protests and boycotts. One supporter of same-sex marriage took his opposition to YouTube and found himself out of a job as a result. Although there also those who lauded Chick-Fil-A for taking its position public, most of the publicity was not positive.

Chick-Fil-A’s message was directed to the public, generally, but what about an employer who takes its position to another level? Take Nordstrom, for example. The Seattle-based company sent an email to its 56,000 employees, voicing support for same-sex marriage. The letter was signed by Nordstrom executives and brothers Blake, Pete, and Erik Nordstrom, making clear that the position was an official one.

The message stated, “it is our belief that our gay and lesbian employees are entitled to the same rights and protections marriage provides under the law as all other employees.” The email comes in advance of Referendum 74, which will ask voters to either approve or reject a law passed earlier this year allowing gay marriage in Washington state.

And Nordstrom is not the only company in the Pacific Northwest to speak out in support of same-sex marriage. Amazon, Microsoft Corp., Starbucks Corp. and Nike, Inc., have also voiced support of similar laws.

So, is this type of top-down showing of support for a particular political position a good thing or a bad idea? On one hand, if the employer voluntarily prohibits sexual-orientation discrimination, supporting same-sex marriage certainly is not a far leap.

On the other hand, what about an employer who takes the opposing position and, like Chick-Fil-A, is a vocal opponent of same-sex marriage? If the company operates in jurisdictions (like Delaware) that prohibit employment discrimination based on sexual orientation, it would seem to be putting itself at legal risk. After all, wouldn’t this be excellent evidence in support of a work environment hostile towards gay and lesbian employees? Maybe it would not be admissible. But, maybe it would be.

Discovery of Social-Media Evidence is the topic that I’ll be presenting today at the annual Office & Trial Practice seminar. Despite my far-reaching popularity (kidding, just kidding), the real celebrity at today’s event will be U.S. Supreme Court Justice Scalia. Because I probably should be practicing my presentation instead of writing a blog post today, I’ll try to keep this brief, adopting the weekly-round-up approach used by Jon Hyman.

In Jon’s honor, we’ll start the list with one of his posts from this week. Yesterday, Jon wrote about a case from the Central District of Illinois, in which the plaintiff claimed he had not been hired due to his age. The twist, though, was that the plaintiff claimed that his employer must have learned the plaintiff’s age by looking at his LinkedIn profile, which included the year he’d graduated from college. Before you run for the hills, bear in mind that the plaintiff was proceeding pro se, meaning without a lawyer. The allegations are weak, at best, but they were sufficient to survive a motion to dismiss. However, pro se plaintiffs are given a lot of leeway in their pleadings, so the ruling doesn’t surprise me too terribly much. The case is Nieman v. Grange Mut. Casualty Co., No. 11-3404 (C.D. Ill. Apr. 26, 2012).

Next up on the list is an update to a case I wrote about earlier this week, Acordia of Ohio, LLC v. Fishel. In that case, decided in May, the Ohio Supreme Court held that the surviving employer in a merger or sale could not enforce its predecessor’s employees’ noncompete agreements as if it had stepped into the predecessor’s shoes–unless the agreement expressly provided otherwise.

Kevin Griffith of Porter Wright’s Employer Law Report reported that, yesterday, the court reversed that part of its decision, finding that the successor entity may enforce such noncompete agreements, even though it was not the original contracting party. The court limited this holding, though, explaining that employees could challenge the validity of the agreement based on whether the merger(s) “created additional obligations or duties so that the agreements should not be enforced on their original terms.”

And, finally, Venkat Balasubramani writes about a new case from Texas, which seems to confirm what should be obvious–viewing comments posted to social-media sites cannot give rise to a claim for invasion of privacy. Why? Because, in short, sharing with one is, under traditional privacy concepts, sharing with all. Once you share information with anyone, you lose any reasonable expectation you may have had that the information will be kept private from others. Of course, there are a few, very limited exceptions, or “privileges,” such as attorney-client and doctor-patient situations, but none that would apply to Facebook posts.

And that, actually, brings me back to where I started. In the limited number of cases that have been decided on the question of discovery of social-networking information, comments, and other content, the courts have unanimously declined to find any type of social-media privilege or special privacy right. Although that does not mean that Facebook contents are there for the taking, either.

But more on that after I wow the crowd at today’s seminar. (Again, just kidding, really). Have a great weekend!

Many employers automatically deduct thirty minutes for employees’ meal breaks. The employer’s policy provides that an employee must take their allotted 30-minute break unless a supervisor authorizes the employee to work through the break. And, in the unusual case when the employee does have to miss her break, she must report it to ensure she gets paid.

There are several reasons to have an automatic-deduction policy. For example, for employees who spend most of the workday out of the office without access to a time clock, an automatic-deduction policy can be the only realistic option for timekeeping purposes. It also means less administrative work and room for error when employees forget to clock back in after a break. Auto-deduct policies are very common in hospitals and other health-care facilities.

But this type of meal-break policy isn’t popular only with employers; plaintiff’s counsel have taken a liking to it, as well. Over the last few years, numerous suits have been filed as class actions under the state and federal (FLSA) wage laws. The suits allege that the employees did not get the benefit of the full meal break but were not paid for the time because of the automatic-deduction policy. As with any class or collective action, meal-break suits can mean big costs for employers.

But the news isn’t all bad. Several opinions have been issued recently finding against plaintiffs in automatic-deduction cases. A case issued last week by a court in the Northern District of Illinois is yet another indication that the tides may have turned in favor of employers. In Camilotes v. Resurrection Health Care Corp., No. 1:10-cv-00366 (N.D. Ill. Oct. 4, 2012), the court decertified the FLSA collective action, finding that the claims and defenses were too individualized to justify proceeding as a class.

Specifically the court pointed to the fact that the plaintiffs worked different shifts and reported to many different supervisors, each of whom enforced the meal-break policy differently. The court also looked to the fact that the plaintiffs alleged different numbers of missed breaks whether those missed breaks actually caused the plaintiffs to have worked overtime.

Although the case is a victory for the employer, it was a victory hard fought, as the employer had to get through the costly discovery process before succeeding on decertification.

Ownership of employees’ social-media accounts was my pick for “hottest topic facing employers in the next 12 months” when I spoke to the Labor & Employment Section of the Delaware Bar Association back in April. A decision issued by the Eastern District of Pennsylvania last week on this issue is proving me right. And, if I say so myself, it is nice to be right every once in a rare while.

The plaintiff, Dr. Linda Eagle, co-founded Defendant EdComm, Inc., in 1987. The company was purchased in 2010 and Dr. Eagle was terminate shortly thereafter. Prior to the purchase, EdComm’s CEO encouraged all EdComm employees to create a profile on LinkedIn listing EdCommas their current employer.

Dr. Eagle, with the help of a designated EdComm employee, followed the suggestion and set up a LinkedIn account and profile. The company had a policy that required employees to use their company e-mail address in their LinkedIn profile and to set up their profiles using a company-created template. Once the account had been created, EdComm kept a copy of the account’s password on file.

It was the company’s general policy that, when an employee separated from EdComm, the company “would effectively ‘own’ the LinkedIn account and could ‘mine’ the information and incoming traffic, so long as it did not steal that former employee’s identity.”

The same day she was fired, Dr. Eagle attempted to log into her LinkedIn account but was not able to do so. The next day, the company announced its new executive management team, including Dr. Eagle’s replacement. Using Dr. Eagle’s password, EdComm accessed her account and changed the password, thereby precluding her from future access. It also changed the account profile to display the successor’s name and photograph. Dr. Eagle’s honors, awards, recommendations, and connections, however, were unchanged.

Dr. Eagle filed suit asserted numerous state and federal statutory and common-law causes of action. Thereafter, she was able to regain access to her account, although she was not able to retrieve messages sent to and from the account for some additional period of time. The company asserted various counter-claims, which Dr. Eagle moved to dismiss. In December, the court denied the motion to dismiss, finding that the “connections” had value for the company.

The parties completed discovery and Defendant moved for summary judgment. In an opinion dated October 4, 2012, Judge Buckwalter dismissed Dr. Eagle’s federal claims but declined to dismiss her state-law claims. With just two weeks remaining before trial and Defendant’s several state-law claims having survived the earlier motion to dismiss, the court ordered the case to proceed.

Dr. Eagle was acting pro se and it showed. Both of her federal claims–brought under the Computer Fraud and Abuse Act and the Lanham Act–were not litigated in a way that they could have survived summary judgment. For more specifics about the dismissal of these claims, see Venkat Balasubramani’s post on Eric Goldman’s Technology and Marketing Blog.

Whether either claim would have stood a more reasonable chance had she been represented by counsel is anyone’s guess but I suspect it’s at least in the realm of the possible. But she wasn’t. And, as a result, the court’s decision is likely to have limited impact on similar disputes over the ownership of social-media accounts.

So what’s the real lesson to be learned from this case, if it’s not about the application of the CFAA to LinkedIn accounts? I have to agree with Venkat on this one–employers who encourage (or require) employees to create or use a social-media account for work should get the ownership rights in writing before they find themselves litigating against a pro se plaintiff with two weeks to go before a full trial on the merits.

Eagle v. Morgan, No. 11-4303 (E.D. Pa. Oct. 4, 2012).
H/T to Francis Pileggi, who writes the Delaware Corporate and Commercial Litigation Blog.

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