Court Rules that Baltimore County's Pension System Discriminated Based on Age

 The U.S. District Court in Baltimore recently ruled that Baltimore County's pension system violated the Age Discrimination in Employment Act. The problem with the system is that it charged older employees more because in theory they would have less time to work before reaching retirement age. The pension system however was amended to add an early retirement option that was not based on age. Instead, it was based on years of service. The early retirement provision "decoupled" age from contributions making it likely that some older workers had to pay more for the same benefits that younger workers received.


The Baltimore Sun has posted a series of articles on the case. I am quoted in one article predicting that the next phase of the case will likely be a battle over damages calculations (sorry for the horn toot):

James E. Rubin, of the Rubin Employment Law Firm in Rockville, said it is "impossible to tell right now" how much the case could cost the county in damages. Typically, both sides hire their own economic analysts to calculate what people are owed.


"There will probably be dueling calculations on what the damages are," Rubin said.

Baltimore County has vowed to fight until there is no one left to fight. If the ruling is upheld, the County predicts. " County employees would have to repay millions of dollars in pension funding. Their paychecks would be decreased as a result of this decision."

You, Too, Can Apply to be the Secretary of Labor for the State of Maryland

I happened to come across the job announcement for the position of "Secretary - Department of Labor, Licensing & Regulation. [DLLR]"   Essential job function number 1 is:  "Ensures effective enforcement of workplace safety and wage laws to provide critical safeguards to Maryland workers and communities."  The DLLR has a broad mission.  So in addition to enforcing our State's wage laws, the candidate must also be prepared to provide "executive direction for the Maryland Racing Commission and the Governor’s Workforce Investment Board."  

Protecting Employee Rights in the State Courts of Maryland

The Third Annual Maryland Employment Lawyers ("MELA") Conference, "Protecting Employee Rights in the State Courts of Maryland," will be Friday, September 28, 2007 at the Columbia Sheraton.

There will be an exciting line-up, focused on how to succeed in the Maryland state courts. Special attention will be given to the new private right of action under 49B, Maryland's anti-discrimination law. Judges from various circuit courts in Maryland, and from the Office of Administrative Hearings, will give an insider's view to their jurisdictions. You'll also learn how to run a "lean and mean employment law practice," and get tips from seasoned employment litigators about how to win employment cases in the circuit courts (especially under local county codes). A full agenda is below and a brochure/registration form is attached.

8:30-9:00 a.m. Registration and Continental Breakfast

9:00-10:00 a.m. How to Run a Lean and Mean Employment Law
Practice

Moderator: Mary T. Keating, Esq.
Law Office of Mary T. Keating

Daniel A. Katz, Esq.
Andalman & Flynn, PC

Gwenlynn Whittle D'Souza, Esq.
Lippman, Semsker & Salb, LLC

Peter Holland, Esq.
The Holland Law Firm, PC

Break

10:15-11:15 a.m. Mechanics of the New Private Right of Action
under 49B

Moderator: Deborah Thompson Eisenberg, Esq.
Brown, Goldstein & Levy, LLP

Kathleen Cahill, Esq.
Law Offices of Kathleen Cahill, LLC

Glendora Hughes, Esq.
General Counsel, Maryland Commission on
Human Relations

11:15-12:15 p.m. Tips for Litigating Discrimination Claims
under the Local County Codes

Moderator: Thomas Gagliardo, Esq.
Gagliardo Law Firm

Linda Hitt Thatcher, Esq.
Thatcher Law Firm, LLC

Rebecca N. Strandberg, Esq.
Rebecca N. Strandberg & Associates

Leizer Goldsmith, Esq.
The Goldsmith Law Firm, LLC

Tammany M. Kramer, Esq.
Heller, Huron, Chertkof, Lerner, Simon & Salzman, PLLC

12:15 - 1:30 p.m. LUNCH

Keynote Speaker:
The Honorable Thomas Perez, Secretary Maryland Department of Labor, Licensing & Regulation

1:45 - 2:45 p.m. How to Litigate a State Administrative Hearing
at the OAH

Moderator: James E. Rubin, Esq.
Rubin Employment Law Firm, P.C.

The Honorable Thomas Dewberry
Chief Administrative Law Judge, OAH

The Honorable Bernard McClellan
Administrative Law Judge, Deputy Director of Quality Assurance, OAH

The Honorable Wayne Brooks
Administrative Law Judge, Deputy Director of Operations, OAH

Jessica Kaufman, Assistant Attorney General Maryland Department of Labor, Licensing and Regulation

Break (Sponsored by JMW Settlements)

3:00 - 4:15 p.m. Views from the Bench: Litigating in Maryland's Circuit Courts

Moderator: Jerry R. Goldstein, Esq.
Bulman, Dunie, Burke & Feld

The Honorable Evelyn Omega Cannon
Circuit Court for Baltimore City

The Honorable Toni E. Clarke
Circuit Court for Prince George's County

The Honorable Ronald B. Rubin
Circuit Court for Montgomery County

4:15 - 5:00 p.m.
MELA Happy Hour

Year in Review: 5 Top Maryland Employment Law Issues from 2006

5. Employers can require at-will employees to waive their right to a jury trial through mandatory arbitration provisions in job applications. At the same time many Maryland employment lawyers realize that arbitration is just as expensive, unwieldy and unpredictable as litigation.

4. After the skirmish over Governor Ehrlich's political appointments, the citizens of Maryland elect a new governor. Will the General Assembly investigate soon-to-be Governor O'Malley's appointments?

3. The Maryland Federal District Court strikes down the Wal-Mart bill. The case is now pending at the Fourth Circuit Court of Appeals.

2. The Supreme Court's Burlington Northern decision expands employee rights to challenge workplace retaliation. At the same time, the Fourth Circuit greatly restricts such rights in Jordan v. Alternative Resources Corp. Will the Supreme Court review the Jordan case in 2007?

1. The Maryland Wage Payment and Collection Law really means that it says. Employer must pay employees earned wages, whether they be accrued vacation, bonuses, or commissions.

What You Write Can Become the Reason You Are Fired

I recently signed up for an account on myspace. Not to be a crumudgeon, but in browsing the site, I cannot help but notice that individuals post pictures and comments that they would never want known in the workplace. I then read a series of excellent articles by George Lenard (at George's Employment Blog) about how employers might use such content to screen out or terminate employees.

Would an employer be wrong to use such information in making hiring and firing decisions? Probably not, as long as it acted consistently without regard to an employee's protected class.

You are what you write.

Washington Post and Baltimore Sun Cover Steffen's testimony

Ehrlich Adviser Details Firings


Steffen, From Ehrlich's Transition Team in 2002 to Yesterday's Testimony

Taciturn 'Prince of Darkness' Leaves Assembly in Just That

Steffen's testimony raises perjury issue

Steffen Ordered to Testify

Following up on yesterday's posting, a Harford County Circuit Court Judge ordered Joseph Steffen to testify today before the Committee examining Governor Ehrlich's employment practices. Given his colorful personality, no matter what your political affiliation, what Mr. Steffen says should be interesting.

"Prince of Darkness" Moves to Quash Subpoena

I wrote here and here about the Special Committee on State Employee Rights and Protections. The Committee is looking into Governor Ehrlich's employment practices, including whether he terminated employees based on their political beliefs. The Committee leaders allege that Joseph Steffen, nicknamed the "Prince of Darkness," served as Governor Ehrlich's hatchet man. In the past few months Steffen (1) agreed to testify (2) left the jurisdiction avoiding a subpoena; then (3) reemerged and stated again he wanted to testify. Today's Baltimore Sun reports that Steffen has changed his mind again. He filed suit yesterday contending the Committee lacks the power to issue subpoenas.

The Intersection of Employment Rights and Maryland Politics

I wrote here about the Special Committee on State Employee Rights and Protections. The Committee apparently was going to issue a report in September, which happens to be when Maryland has its primary election. However, the Committee's work may be extended because the main target of the investigation, Joseph Steffen, recently became available to testify. This link collects The Baltimore Sun's coverage of the committee's work, including Mr. Steffen's reemergence and the suit filed by several legislators seeking to compel executive department employees to testify about Gov. Robert L. Ehrlich Jr.'s hiring and firing practices.

Court of Appeals Blocks Enforcement of Law Ousting Public Service Commissioners

Continuing the run on decisions affecting the rights of public employees, the Court of Special Appeals issued a two paragraph order last Friday enjoining enforcement of the statute that "fired" all five Public Service commissioners. The Order states that enforcement of the law is enjoined "pending further order of this Court."

Baltimore City Police Commissioner's Employment Contract Does Not Trump State Law

In February 2003, the Mayor of Baltimore entered an employment agreement with Kevin Clark. Under the agreement, Clark was to serve as Baltimore City's Police Commissioner. The Agreement permitted the Mayor to remove Clark without cause.

Sure enough, on November 10, 2004, the Mayor notified Clark that his employment terminated was being terminated without cause.

Clark sued the City alleging that despite the employment agreement's language, the Mayor could remove the Commission only with cause and upon notice and a hearing. In a June 30, 2006 decision, the Court of Special Appeals agreed with Clark. According to the Court:

• The Baltimore City Police Department is a State agency.
• The Mayor has the authority to appoint the Commissioner;
• State law allows the Mayor to remove the Commissioner for misconduct, malfeasance, inefficiency, incompetence or prolonged illness; and
• The Mayor must give the Commissioner notice of why he is being removed and a hearing to contest the charges.

Maryland State Employee Only Entitled to Pay for Travel Time that Exceeds Ordinary Commuting Time

The issue in Comptroller v. Miller is whether a State employee is entitled to pay for all time spent commuting from home to a remote work station. The State employee claimed she was entitled to compensation for all of her travel time, without deducting the time normally spent commuting to the office. The Comptroller argued that the employee was not entitled to pay for time the employee would have otherwise spent commuting work.

The Court of Special Appeals sided with the state and noted that under the Fair Labor Standards Act, employees are not entitled to pay for travel within their normal commuting area.

Maryland's Highest Court Issues Important Decision for State Employees

The Maryland Court of Appeals today issued an opinion confirming that Administrative Law Judges have the authority to reclassify Maryland State employees. If a Maryland State employee believes his Agency has placed him in an incorrect job classification (i.e., one that does not pay enough), the employee may file a grievance. The last step of the grievance procedure is a hearing before an administrative Law Judge at the Office of Administrative Appeals. In Department of Public Safety and Correction Services v. Myers, while the Agency admitted that an Administrative Judge could award back pay to a wrongly classified employee, it claimed the Judge has no authority to order the Agency to properly classify the employee. The Maryland Court of Appeals rejected the Agency's argument.

According to the Court:

[An ALJ can determine] that a particular employee is executing duties and responsibilities that those agencies have assigned to a different position and that the employee is therefore entitled to be in that position.

The Court affirmed the ALJ's decision to award backpay to several State employees and to upgrade their classifications.

Disability Retirement Benefits Awarded During Marriage Are Marital Property

In a unanimous opinion, the Court of Appeals ruled today in Conteh v. Conteh that service-connected disability retirement benefits constitute marital property.

Certain employees qualify for "service-connected disability retirement benefits" if they suffer a work-related injury that renders them disabled. Not suprisingly, "service-connected" disability retirement is more generous than "accidental" or normal disability retirement.

Because "service-connected" disability retirement benefits awarded during a marriage constitute marital property, the Court can award a portion of those benefits to a divorcing spouse.