Category Archives: Employment Law & Litigation

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Important 2020 D.C. Employment Updates

As everyone is adjusting to working and living with Covid-19, we must not forget that the governments are continuing to enact laws that affect employers.  While we have previously provided updates for Maryland and Virginia employers, the District of Columbia has also recently enacted several important updates to its employment laws: Time Off to Vote. …READ MORE

Author: , 07/16/2020

Reopening Your Business: What If I Have to Shut Down Again?

By now, most business owners have read the emerging scientific news that the COVID-19 pandemic may linger for one to three years. Alongside this “lengthening” of the curve, the media is filled with coverage of the political, social and economic pressure to re-open and significant concerns from employees that their workplaces will not be safe…READ MORE

Author: 07/16/2020

Attention Virginia Employers: New Employment Laws Effective July 1, 2020

Even though employers are busy adjusting, evolving, and pivoting their policies due to the constantly changing effect of the Coronavirus pandemic, Virginia employers must also ensure they are complying with new employment laws that will be effective on July 1, 2020.  Many of these laws have significant penalties for non-compliance from by the employee and…READ MORE

Author: , 05/29/2020

Reopening Your Business: 9 Steps To Reduce Labor Risks

Re-opening your business is the hot topic as local and state governments relax COVID-19 shelter in place orders. Regardless of industry, most small businesses need to address core labor issues and evaluate what additional industry-specific concerns should be addressed. Both valid and specious employment claims are already on the rise due to a combination of…READ MORE

Author: 05/28/2020

New Maryland Employment Discrimination Laws Take Effect October 1, 2020

While much of the recent Maryland Legislative session was consumed with the coronavirus crisis, several pro-employee bills were passed. These bills address race discrimination, sex discrimination, pay equity, and wage transparency. All will become effective October 1, 2020 without the signature of Governor Hogan, who declined to hold any bill signing ceremonies this month.  The…READ MORE

Author: 05/19/2020

Exempt Employee: What Is The Level Of Discretion That Qualifies?

Our clients have generally recognized that providing an employee with a salary is not enough to exempt that employee from overtime. The Fair Labor Standards Act (FSLA) established the forty (40) hour week, minimum wage, overtime and what jobs were exempt from these requirements. The administrative exemption to FSLA requirements permit an employer to classify…READ MORE

Author: 05/05/2020

Managing New Overtime Rules

Groups of workers just became eligible for overtime pay following the adoption of new regulations by the Department of Labor.  It is estimated that 1.4 million additional workers will now be in line to receive overtime compensation. Effective as of January 1, 2020, the base salary level at which administrative, executive and professional employees can…READ MORE

Author: 05/02/2020

Coronavirus Unemployment Benefits: Tips for Small Businesses

Emergency legislation has made unemployment benefits an important financial lever for small businesses faced with closing the margin between expenses and revenues. Labor costs often make up more than half of gross sales for service businesses, so payroll is one of the first places many owners are looking to be able to manage through the…READ MORE

Author: 04/13/2020

Going Digital

We are now living in a profoundly new world where many workplaces are being transitioned to teleworking with limited planning or time to test systems.  This rapid shift brings challenges that must be addressed and resolved from both a legal and operations standpoint.  Confidential Information and Data Privacy Issues.  One of the major issues is…READ MORE

Author: , 04/03/2020

Coronavirus Aid, Relief, and Economic Security Act (CARES Act) – Relevant Employment Provisions

Last week, the federal government enacted the CARES Act.  It provides economic relief to Americans both as individuals and businesses. While the Act contains a variety of tax, loans and other measures, the following programs are of particular interest to employers and small businesses:  Payroll Protection Program.  In part, this law allows small and mid-sized…READ MORE

Author: , 04/03/2020

Covid-19 Weekly Updates – April 2, 2020

As the number of Covid-19 infections rise, the federal, state, and local governments are taking more drastic actions to protect and support the public during this time.  The following updates summarize major changes that affect employers in the DMV:  1.Families First Coronavirus Response Act.  The FFCRA became effective April 1, 2020.  All employers, even those…READ MORE

Author: 04/03/2020

Employer Update: Federal Paid Sick Leave And Family Leave Enacted

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act.  The important part for employers is it enacts temporary measures requiring employers with fewer than 500 employees to provide paid sick leave and family leave for those directly affected by COVID-19.   It is important to note that these measures are…READ MORE

Author: 03/20/2020

Ongoing Changes During The Covid-19 Crisis

From day to day, hour to hour, as our government responds to the COVID-19 pandemic, our laws change.  Some are relaxed, others are altered, and new ones are added. In the last week alone, we have seen the following: The federal government is requiring paid sick leave and family leave to some employees. The EEOC…READ MORE

Author: 03/20/2020

Creating Arbitration Agreements with Your Employees

Many employers routinely include mandatory arbitration agreements for resolving employment disputes with their employees. To the surprise of many employers, such clauses are often ruled invalid. To help assure that your agreement requiring arbitration of employment disputes is enforceable, be aware of the following factors: Consider using a separate, stand-alone agreement. Especially in the context of…READ MORE

Author: 11/01/2019

The Social Security Numbers Do Not Match!

Recently, we have learned that our clients are receiving letters from the Social Security Administration indicating that the Social Security Numbers submitted with payments for FICA and, presumably, Medicare, do not match.  This often may involve an undocumented worker; however, it could simply mean a clerical error. The employer who receives a no-match letter stands…READ MORE

Author: , 08/02/2019

The Hazy World of Weed at Work in Maryland

The legalization of medical marijuana is ever increasing with 33 states now permitting the use of medical marijuana, including Maryland. Yet, Maryland has not passed employment protections for users into its medical marijuana laws. As a result, Maryland state law conflicts with federal law, leaving employers and workers scrambling to determine how to protect themselves…READ MORE

Author: , 04/22/2019

Telecommuting As An Accommodation

Consider the situation faced by an employer that does not, typically, allow employees to work remotely.  Then consider what happens when an employee with pregnancy related complications is instructed by her physician to go on bedrest for the remaining three months of her pregnancy.  Moreover, the employee lacks sufficient PTO to cover the anticipated leave….READ MORE

Author: 04/02/2019

Employer Reporting of Sexual Harassment in Maryland

The new Maryland employer survey for reporting sexual harassment settlements is now open on the website of the Maryland Commission on Civil Rights (MCCR). Context Maryland was one of the 32 state legislatures to consider #MeToo legislation in the 2017-2018 legislative cycle. Across the country, approaches to addressing workplace harassment include restricting confidentiality agreements, restricting…READ MORE

Author: 02/25/2019

Non-Compete And Non-Solicitation Agreements: Employer Beware

A recent case from the Circuit Court for Montgomery County, Maryland underscored the growing trend by courts across the country to limit the application of non-compete and non-solicitation agreements.   These agreements, typically referred to as “restrictive covenants”, are integral to many employment agreements. Restrictive covenants in employment contracts serve as a means of assuring the…READ MORE

Author: 04/24/2018

What all employers should know about employees and social media

The use of social media is ubiquitous in the world today. The stark truth is: social media has revolutionized the way people communicate, and legal regimes and workplace customs must adapt. We have recently reviewed numerous handbooks for employers that include social media policies. Including these policies in employee handbooks is essential, as courts and…READ MORE

Author: 05/25/2017

Do Your Employees Understand Their Duty of Loyalty?

All of your employees are subject to an array of implied common law duties. This includes the “duty of loyalty” which requires an employee to serve his or her employer faithfully and refrain from knowingly or willfully acting to harm the business. It also requires the employee to refrain from conflicts of interest with the…READ MORE

Author: 04/26/2017

Is a Temp Agency Employee also Your Employee?

Employers often look to temporary staffing agencies to fill pressing employment needs.  Historically, an employee hired this way has been considered to be solely an employee of the agency.  That may be changing, and if your business hires temps through an agency, you should be aware of this development. Last month a federal Circuit Court…READ MORE

Author: 02/28/2017

Employer FAQs regarding Montgomery County’s “Earned Sick and Safe Leave”

Are you an employer? Do you conduct business in Montgomery County or do your employees perform services there? Are any of these employees excluded from your company’s leave policies? If so, a new Montgomery County law means that you likely have to change your practices. Montgomery County enacted a new “Earned Sick and Safe Leave…READ MORE

Author: , 11/28/2016

Employers Beware: The Price of Not Knowing about the Current Minimum Wage and Overtime Laws

We have written often about the pitfalls presented by wage and overtime laws, and how those laws carry severe monetary consequences for employers. Policy makers have targeted “wage theft” with these regimes, but all too often well-meaning companies are punished for systematic failures. We have seen a rash of actions taken against responsible employers who…READ MORE

Author: 11/21/2016

Court Finds Dancers are Employees, Not Independent Contractors

In May 2016, the Fourth Circuit Court of Appeals determined that two Maryland exotic dance clubs misclassified their dancers as independent contractors rather than employees. The dancers sued under the Fair Labor Standards Act (FLSA) and Maryland wage and hour laws for unpaid wages and liquidated damages. The Court found that the facts presented suggested that exotic dancers are employees. According to the…READ MORE

Author: 07/18/2016

FLSA Wage Claims Are on the Rise: How to Prevent and Defend Against Unpaid Wage Claims

“Wage theft” has become the buzzword du jour in certain circles. According to an analysis from the Federal Judicial Center (FJC), more workers than ever are filing wage-and-hour lawsuits. The number of wage and hour lawsuits filed under the Fair Labor Standards Act (FLSA) has been steadily on the rise, surpassing all other employment-type cases….READ MORE

Author: 05/04/2016

The Top 5 Hot Topics in Employment Law for 2016

This year, employers will face a number of challenges when it comes to managing, monitoring and maintaining their workforces. From providing paid sick leave and equal opportunity under state and municipal laws, to extending equal rights and benefits to transgendered employees, complying with these new obligations may require a change in the way you operate…READ MORE

Author: 01/27/2016

More White-Collar Workers May Qualify for Overtime Pay

Some 5,000,000 white-collar workers who are currently exempt from overtime compensation may soon be entitled to such pay. The effect on your payroll could be significant if changes to the Fair Labor Standards Act (FLSA) are allowed to take effect, per a recent proposal from the U.S. Department of Labor (DOL). The impact will arise…READ MORE

Author: 09/17/2015

How to Keep Your Trade Secrets Secret

Does your business rely on information that you wouldn’t show to your competitors? If you don’t have a secure grasp on such trade secrets, you are at risk of losing these valuable assets with no way to recover them. The good news? You can easily protect a trade secret under Maryland and/or D.C. law, if…READ MORE

Author: 05/08/2015

A © Alone is the Wrong Way to Copyright Your Work

You’re an entrepreneur. You’re deal-focused. You’ve got your eye on the prize, and you can’t be bothered with unnecessary details. You are driven by the desire to get things done. So when you establish a relationship with a partner, a supplier, an employee, or a client, it’s easy enough to imagine you can skim over…READ MORE

Author: 04/16/2015

Maryland employers, get ready for the new Parental Leave Act!

As of October 1, 2014, if you have 15-49 employees in Maryland, your business needs to be prepared to provide parental leave to anyone who is eligible. Here are a few key facts to help you determine if you will be affected and how to comply. Am I subject to the Parental Leave Act (PLA)?…READ MORE

Author: 09/25/2014

When Will New Minimum Wage Requirements Affect Your Payroll?

Get ready. As early as October 1, 2014 higher minimum wage requirements begin to take effect around Maryland. That’s the date when new local laws start to impact businesses in Montgomery and Princes George’s Counties. Elsewhere in Maryland, new statewide requirements (which are lower than those in Montgomery and Prince George’s) take effect a few…READ MORE

Author: 07/31/2014

Top Five Employment Action Items for 2014

With Spring upon us, it is a great time to review your employment practices, ensure compliance with any new laws, and make updates to protect your business.  Here are a few easy steps to take: Hold your annual Sexual Harassment and Discrimination training. Your business’s best line of defense against sexual harassment or discrimination claims…READ MORE

Author: 03/21/2014

Maryland and District of Columbia Employers Alert: New Legislation on Wages

On October 1, 2013, both Maryland and District of Columbia employees were given powerful tools to collect unpaid wages from their employers. These new remedies have the potential to cause significant problems for employers. If you are a business owner, it is imperative that you understand these new laws and take steps to minimize your…READ MORE

Author: 12/04/2013

Big Issues, Short Takes – September 2013

Unlike many other states, Maryland does not have a “dram shop” act that places liability on bars and restaurants for serving or continuing to serve intoxicated individuals. Recently, the Court determined that there is no relationship between a tavern and an injured third party as a result of the tavern’s serving alcohol to the drunk driver responsible…READ MORE

Author: 09/20/2013

Big Issues, Short Takes – June 2013

“Rain Tax, Rain Tax, Go Away!” You can chant “Rain Tax, Rain Tax, go away”, but it won’t stop Maryland’s new levy, implemented to offset the costs of runoff from impervious surfaces into the Chesapeake Bay. The Rain Tax affects you if your home, business or non-profit is located in Montgomery, Prince George’s, Frederick, Anne…READ MORE

Author: 07/01/2013

The Potential Cost of Unpaid Summer Interns

Summer has turned into the season of the unpaid internship. Job-hungry students with little or no hope of a paid position agree to take their “compensation” in the form of practical job experience. It sounds too good to be true, and it probably is now that the Department of Labor (DOL) is focusing on the…READ MORE

Author: 06/27/2013

How Your Business Can Prevent Wage Discrimination Claims

Do you have a fair and well-thought-out policy for how your business sets employee compensation? It can go a long way towards preventing a claim for discrimination. A recent federal case arising out of Arkansas illustrates this point. Lakishia Hill was an employee for the City of Pine Bluff, working in its office of Inspection…READ MORE

Author: 05/16/2013

Big Issues, Short Takes – May 2013

Independent Contractors – Construction Many federal and state agencies are auditing employers to make sure they are properly classifying their workers as employees or independent contractors. A recent District of Columbia law, the Workplace Fraud Act, presumes that workers in the District of Columbia construction services industry are employees unless the employer can otherwise demonstrate that the…READ MORE

Author: 05/15/2013

Why and How to Update Your Employment Manual

Your employment manual should be a living document that grows and changes as the company evolves. Both employees and management view the manual as a guide on how to resolve conflicts and problems that arise in the workplace. You need to be able to apply policies consistently to resolve employment issues and reduce the company’s…READ MORE

Author: 03/29/2013

Big Issues, Short Takes – April 2013

Cyber Security – Stronger Passwords A few years ago, we thought 8-character passwords were strong. Then the Georgia Institute of Technology tested 8-character security using commonly available programs and cracked the passwords in two hours. But it would take thousands of years to crack a 12-character password using the same technology. Moral of the story:…READ MORE

Author: 03/29/2013

Terminating Your Employees: The Final Paycheck

When an employer terminates an employee, it can easily expose itself to liability by not issuing the final paycheck on time. Not surprisingly, this subject is heavily regulated by the states. Sometimes companies hold on to the last paycheck until all company property is returned. Employers should NOT do this because it is often prohibited…READ MORE

Author: 01/24/2013

But the Employment Manual was on the Internet!

So often, we hear this from our clients who use employment manuals drafted by attorneys or human resource managers, which were posted on the internet. Unfortunately, more often than not, the manual does not comply with the appropriate laws and is not narrowly tailored to meet the needs of the employer’s unique business. This could…READ MORE

Author: 07/31/2012

Timing of Termination Following Leave May Evidence Retaliation Claim

A recent case from the First Circuit has held that the timing between an employee’s leave of absence and his subsequent termination of employment may be sufficient to establish a Family and Medical Leave Act (FMLA) retaliation claim. In Pagan-Colon v. Walgreens of San Patricio, Inc., Juan Pagan was employed as an assistant manager by Walgreens….READ MORE

Author: 07/12/2012

What is a Hot Issue in Employment Law? Misclassification of Employees as Independent Contractors

Background We advised our readers a few months back about the IRS’s new Voluntary Classification Settlement Program (VCSP). The VCSP offers employers that have misclassified their employees as independent contractors the opportunity to remedy their misclassifications and comply with the appropriate employment laws prospectively. The program began in September 2011 and, to date, a termination…READ MORE

Author: 03/07/2012

Monthly Tax Tip: Worker Classification Disclosure

The IRS recently announced a new voluntary settlement program for employers that have misclassified their employees as independent contractors or other nonemployees. The Voluntary Classification Settlement Program (VCSP) offers employers a significantly reduced penalty framework, as well as audit protection for previous years, in exchange for agreeing to prospectively treat any and all misclassified workers…READ MORE

Author: 10/31/2011

When Does the Clock Start for Employees Working from Home?

In today’s varied work environment, more and more employees are performing some type of employment related service from home. This triggers issues to determine when the compensable portion of the work day begins. If an employee reviews his work e-mails or remotely logs on to the company network from home before leaving for the office,…READ MORE

Author: 10/07/2011

Minimum Wage Law Update – Tip Credit Regulation Change

Are you in compliance with the new minimum wage regulations applicable to tipped employees that took effect on May 5, 2011? Read on to find out. For purposes of this article, a tipped employee is one who customarily and regularly receives more than $30 per month in tips. Employers are permitted to take a tip…READ MORE

Author: 08/16/2011

Tradesecrets: Protect Them or Lose Them

Every business has trade secrets consisting of confidential and proprietary information such as its business processes, marketing plans and client and price lists, all of which are integral to the success of the business. The absence of affirmative action by the business owners to protect trade secrets can be catastrophic. The primary threats to a…READ MORE

Author: 08/16/2011

Maryland “Healthy Retail Employee Act”

Effective March 1, 2011, the Maryland Healthy Retail Employee Act (“Act”) went into effect. The new law requires retailers to provide their employees with mandatory shift breaks depending upon the number of hours worked. The Act applies to employers engaged in a retail business or retail franchise having the same trade name with 50 or…READ MORE

Author: 03/03/2011

Employee Noncompete Agreements Unenforceable? Wrong!

Noncompete Agreements – Why Bother? So often we hear that noncompete agreements are not worth the paper they are written on. Whether that statement is true or not depends on what is written on the paper. Earlier this year, the United States District Court of Maryland unequivocally confirmed that employee noncompete agreements are enforceable in Maryland! TEK-systems, Inc….READ MORE

Author: 07/13/2010

Individual Member of LLC Subject to Personal Liability

Section 4A-301 of the Corporations and Associations Article provides that a member of a Limited Liability Company (LLC) is not “personally liable for the obligations of the LLC, whether arising in contract, tort or otherwise, solely by reason of being a member of the LLC.” In what may prove to be a landmark decision, the…READ MORE

Author: 04/27/2010

The Federal “HIRE” Act Gives Employers Substantial Incentives to Hire the Unemployed

The “Hiring Incentives to Restore Employment Act of 2010” (the HIRE Act, P.L. 111-147) can provide a substantial benefit for private-sector employers (including employers that are non-governmental nonprofit organizations) who are beginning to expand their businesses through the hiring of new employees. To provide employers with an incentive to hire unemployed individuals, the HIRE Act…READ MORE

Author: 04/25/2010

Major Changes in Health Insurance Coverage

There are a number of important changes for both employers and individuals included in the new 2010 Health Care Act (as amended by the Health Care Reconciliation Act) that are effective immediately. These changes confer a real benefit on small businesses as well as individuals with young adult children. Individuals with children who have not…READ MORE

Author: 04/13/2010

Reduced Pay on Longer Shifts to Minimize Overtime Expense

The issue of whether an employer can reduce the rate of compensation to its employees who choose to work extended hours has been answered in the affirmative. In a case out of the 9th Circuit, the Court said that such actions were permissible by the employer as a strategy to control overtime expense so long…READ MORE

Author: 03/23/2010

Employee Theft – Can It be Avoided?

Be careful of the thief who masquerades as your bookkeeper. The law is not as kind to employers as it once was. Recently, McMillan Metro, P.C. was called upon to represent two different employers for claims of employee theft, with one claim involving over $1M. What happens when someone inside your business forges your signature…READ MORE

Author: 12/21/2009

Have You Reminded Your Employees of the Duty of Loyalty?

All employees are subject to an array of implied common law duties arising from the unwritten contract requiring the employer to pay wages in exchange for the employee’s performance. While the duty of loyalty provides protection for the employer as well as a powerful enforcement instrument, it is often overlooked and ignored. Too often employees…READ MORE

Author: 11/17/2009

New Family and Medical Leave Act Regulations

The first material revisions to the federal Family and Medical Leave Act (FMLA), since the law was enacted fifteen years ago, will take effect January 16, 2009. The new regulations clarify many of the implementing terms that had caused confusion and costs to both employers and employees. The new regulations also add extensive employment protections…READ MORE

Author: 01/15/2009

The Pension Act

Late on December 11, the Senate approved H.R. 7327, the “Worker, Retiree and Employer Recovery Act” (the Pension Act) by unanimous consent. The bill was passed by the House on December 10 by unanimous consent, so the measure is cleared for the President’s signature. The Pension Act suspends the need to take required minimum distributions…READ MORE

Author: 12/12/2008

Employment Law Update in Maryland – Addendum

Maryland Developments Domestic Partner Benefits – Family Coverage Expansion Act The Maryland General Assembly enacted a law which requires insurers who issue health insurance in the State of Maryland to provide coverage for domestic partners and dependents of domestic partners. See 2007 Md. House Bill No. 1057 Full enrolled text – http://senate.state.md.us/2007RS/bills/hb/hb1057e.pdf  Effective June 1, 2007…READ MORE

Author: 08/27/2008

Uniformed Services Employment and Reemployment Rights Act (USERRA)

Employment Law Bulletin Uniformed Services Employment and Reemployment Rights Act (USERRA) To many of you I sent this information regarding the USERRA after September 11, 2001. Now, with our country going to war with Iraq it is even more relevant and important to many people and employers. The USERRA protects employees who are in the…READ MORE

Author: 07/25/2008