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.

This lawsuit, which we’ll file in the category of “Ultimate Jerks at Work,” was reported by Kashmir Hill on 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.

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.

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.

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.

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.

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.

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.

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.

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