Whiteford has a well-established Labor and Employment Group whose members are devoted exclusively to representing clients in all aspects of labor and employment law. The Group primarily represents management, either the business entity itself or managers and supervisors who have been sued individually in employment-related matters, directly or pursuant to employment practices liability insurance.
The Group handles all types of employment litigation in the state and federal courts, as well as before a broad array of administrative agencies such as the Equal Employment Opportunity Commission, the National Labor Relations Board, state and federal occupational safety and health agencies, the U.S. Department of Labor, the Maryland Office of Administrative Hearings, and local human relations commissions.
Our seasoned Labor and Employment Group litigation attorneys have handled claims involving all of the following:
Employment discrimination (including sexual and racial harassment complaints, disability discrimination, equal pay claims and sexual orientation claims)
Violation of federal and related state and local laws (e.g., the Family Medical Leave Act, the Fair Labor Standards Act and occupational safety statutes)
Union organizing efforts and unfair labor practice complaints
Wage and hour claims
The Group strongly urges clients to adopt preventive measures and good practices to reduce exposure to costly and disruptive employment litigation. Examples of the preventive services we offer include the following:
Development and evaluation of employment policies
Training for supervisors and management (including harassment prevention training)
Review of record keeping systems
Advice regarding decisions affecting employees
Dealing with problem employees
Assistance with internal investigations.
In addition to defending employers against workplace related claims, Whiteford also regularly assists its clients in protecting their trade secrets and other economic interests by, among other things, enforcing employment agreements and common law duties owed by current and former employees.
On Tuesday April 23, 2024, the Department of Labor issued a long expected Final Rule that substantially raises the salary threshold for salaried exempt employees under the Fair Labor Standards Act (FLSA). The FLSA mandates the payment of overtime pay to non-exempt employees who work more than 40 hours in any given work week. There are, however, exemptions for employees who meet certain defined job requirements, such as bona fide executive, administrative and professional employees, provided these employees are also compensated on a “salary basis.”
On April 23, 2024, the Federal Trade Commission (FTC) issued a Final Rule that bans most existing non-compete agreements once the Rule becomes effective, which currently is estimated to be September 10, 2024.
On April 15, 2024, the Equal Employment Opportunity Commission (“EEOC”) published its Final Rule to implement the Pregnant Workers Fairness Act (“PWFA”). The primary impact of the new law is that under the PWFA, employers of 15 employees or more are required to make affirmative efforts to accommodate a pregnant employee, not merely agree not to discriminate. The PWFA became law on June 27, 2023, but the requirements are not expected to take effect until June 2024 following the implementation of the Finale Rule.
In a joint statement issued on April 4, 2024, five federal agencies, including the Department of Labor, announced they will apply their enforcement authorities to the use of automated systems, including artificial intelligence (AI). As the agencies put it, “Although many of these tools offer the promise of advancement, their use also has the potential to perpetuate unlawful bias, automate unlawful discrimination, and produce other harmful outcomes.”
On March 29, 2024, the U.S. Department of Labor and the Occupational Safety and Health Administration (OSHA) published a final Rule clarifying the rights of employees to have a representative attend inspections performed by OSHA compliance officers. This Rule is effective May 31, 2024.
As California struggles with a new $20.00 per hour minimum wage for fast food workers, Virginia Governor, Glenn Youngkin, recently vetoed a legislative bill (H.B. 157) that would have raised the hourly minimum wage in Virginia from $12 to $15 by 2026.
As covered in previous installments of the Employment Law Update, Maryland has joined a growing list of states in adopting a paid family leave program. Unlike traditional paid time off that is provided directly by an employer, the paid family leave program will be administered by the state government and will provide a system under which employees can receive reimbursement when they are absent from work for certain qualifying reasons.
The Maryland Department of Labor’s Division of Family and Medical Leave Insurance (FAMLI) has released a detailed FAQ document addressing 59 questions surrounding the new paid family and medical leave system that is (now) slated to launch in 2026. As a refresher, FAMLI will permit workers to take time off from work to care for themselves or a covered family member and be paid up to $1,000 weekly for up to 12 weeks.
New York employers must now comply with a new privacy law in effect. Specifically, employers are prohibited from obtaining certain information and/or access to an applicant or employee’s personal electronic accounts.
On December 26, 2023, the NLRB put into effect sweeping new rules providing unions with a rocket-speed advantage in petitioning for a representation election. The new rules once again collapse the time between the filing of a representation petition for an election (an employee vote whether employees want to be union-represented) and the date an election is conducted.
In October 2023, the NLRB finalized its Joint Employer Rule (the Rule), which was slated to become effective February 26, 2024. The Rule would expand when franchisors, staffing company users and other placement firms with business connections to another employer’s direct employees are considered joint employers.
On February 14, 2024, the U.S. Department of Labor (DOL) Wage and Hour Division Administrator, Jessica Looman, testified before the House and confirmed the DOL’s intention to release its new overtime rule (the Rule) in April 2024, despite Republican representatives urging the DOL to withdraw a proposed overtime rule.
On February 5, 2024, the NLRB ruled that Dartmouth University’s Men’s Basketball team players are employees of the school, within the meaning of the National Labor Relations Act, clearing the way for an election that may result in the first-ever certified labor union for NCAA athletes.
On February 2, 2024, the US Citizenship and Immigration Service (USCIS) issued a Final Rule relating to the FY2025 H-1B visa lottery program, set to open for registration next month. The new rule implements a “beneficiary centric” system, that will ensure that each unique beneficiary will be entered into the system only once, regardless of how many employers may submit a registration on the beneficiary’s behalf.
Over the past decade, and especially recently, more and more state legislatures have passed paid leave laws providing for tax-funded paid medical and/or family leave programs. These new programs provide leave for employees above and beyond the normal “PTO,” “Vacation,” or “Sick” leave employers generally afford their employees.
Employment laws seem to be enacted in waves. One year its laws regulating how employers can and cannot react to or control an employee’s use of social media. Then, there is a wave of laws mandating paid sick leave. Of course, there is the evolving wave of laws about facial recognition and data privacy.
On January 10, 2024, the Department of Labor (DOL) published its final Rule on classifying workers as independent contractors under the Fair Labor Standards Act (FLSA). The Rule will take effect on March 11, 2024.
On December 22, 2023, New York Governor Kathy Hochul gave a holiday gift to New York’s business community when she vetoed New York State Senate bill (S.3100A)—New York’s non-compete bill—that would have prohibited employers in New York from using noncompete agreements and certain other restrictive covenants with employees and other “covered individuals,” amending New York’s Labor Law. The business community lobbied for the Governor to veto or narrow the bill, fearing that the non-compete bill, in the form passed by the New York legislature, would damage New York’s economy, threatening innovation and causing businesses to flee New York for more employer-friendly states.
Non-compete agreements have been the subject of much discussion and scrutiny across the country. While some states and federal agencies push for prohibition of these types of restrictive covenants altogether, Maryland and New York continue their trends of narrowing the class of workers who may be lawfully subjected to a non-compete. Non-Compete Agreements have been the subject of much discussion and scrutiny across the country. While some states and federal agencies push for prohibition of these types of restrictive covenants altogether, Maryland and New York continue their trends of narrowing the class of workers who may be lawfully subjected to a non-compete.
Last week, the Department of Labor announced it had recovered $11.4 million in back wages and liquidated damages for more than 1,000 employees of a popular Mexican Restaurant chain, Plaza Azteca. Following an investigation that began in 2019, the Department of Labor filed a lawsuit against the owner of several Plaza Azteca locations alleging violations of the Fair Labor Standards Act (“FLSA”).
As of November 22, 2023, employers of New York City employees and New York City places of public accommodation and housing providers are prohibited from discriminating based on an individual’s height or weight, with limited exceptions, following an amendment to New York City’s Human Rights Law.
We’ve seen it happen: an acrimonious termination results in a terminated employee refusing to return a company-issued laptop computer or other electronic device, claiming it contains personal information. In a recent Maryland criminal law case, State v. McConnell (July 17, 2023), the Maryland Supreme Court gave strong ear to an employee’s claim of privacy entitlement to information stored on a provided laptop, stating that computers “can reveal the sum of an individual’s private life.”
On September 29, 2023, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued its 144-page proposed Enforcement Guidance on preventing workplace harassment under the anti-discrimination laws that the EEOC enforces (“Guidance”). The stated purpose of the Guidance is to clarify for the public what the EEOC maintains are legal requirements for preventing unlawful harassment in the workplace. What is concerning, among other things, is the very broad approach to illegal workplace harassment that the EEOC sets forth. While any EEOC Guidance does not have the force of law, it provides insight into the EEOC’s focus and how it will interpret and administer the laws it is charged with enforcing.
Last month, the Equal Employment Opportunity Commission (EEOC) and the Department of Labor (DOL) entered into a Memorandum of Understanding (MOU) intended to improve their enforcement of federal employment laws. Prior to this MOU, each agency operated in a fairly siloed manner and without much collaboration.
In Students for Fair Admissions v. Harvard, 600 U.S. _ _ _ (June 29, 2023) (SFFA), the United States Supreme Court struck down the legality of affirmative action programs within the university setting, holding that universities may not use race by itself as a “plus factor” in college admissions decisions. Without delving too deeply into the legal nuances of the 237-page decision, the Court’s majority opinion noted the following important points: (1) because of the “zero sum” nature of university admissions, it is not possible for race to be a “plus factor” for some applicants without functioning as a detriment for others; and (2) using race as a plus factor inevitably invokes impermissible race stereotyping. It took only moments before the ripples of this decision were felt across both the public and private sector.
As of July 1st, Maryland law now permits the possession and use of small amounts of marijuana. Unlike some other jurisdictions that have decriminalized marijuana possession, Maryland’s new statute does not directly address the law’s consequences for employers and employees. In the absence of statutory language clarifying the law’s impact on the workplace, many Maryland employers have been left uncertain as to their ability to prohibit, or test for, marijuana use among their employees.
A growing number of federal appeals courts are ruling that the Uniformed Services Employment and Reemployment Rights Act ("USERRA") requires employers to provide employees on military leave with the “same rights and benefits” as are provided to similarly situated employees on non-military leave.
This past June, the Supreme Court issued a decision “clarifying” the test applied to determine when an employer would be justified in refusing a requested religious accommodation. Under Title VII, an employer may not discriminate against an employee or applicant on account of their religion. In regulations issued not long thereafter, the EEOC added its interpretation that this non-discrimination provision also required an employer to “make reasonable accommodations to the religious needs of employees” whenever those accommodations would not work an “undue hardship on the conduct of the employer’s business.” This interpretation was then adopted by Congress when it amended the statute in 1972. The term “religion” was also further defined to include “all aspects of religious observance and practice, as well as belief.”
On June 27, 2023, the Pregnant Workers Fairness Act (“PWFA”) became law, placing heightened obligations upon employers to accommodate pregnant employees. The Equal Employment Opportunity Commission (“EEOC”) immediately began accepting charges under the PWFA for alleged violations occurring on or after June 27, 2023.
On August 30, 2023, the US Department of Labor, Wage and Hour Division, issued a notice of proposed rulemaking increasing the requirements for claiming overtime exemptions for Executive, Administrative and Professional employees, commonly referred to as the “White Collar Overtime Exemptions.” Currently, a White Collar employee can only be overtime-exempt (that is, paid on a flat salary basis without overtime) if the employee performs certain functions requiring judgment and discretion, and is paid at least $684 per week, approximately $35,600 annualized.
In a decision issued on August 2, 2023, the NLRB overruled existing precedent regarding the lawfulness of employer work rules and policies as articulated in employee handbooks, in favor of a new test which places the burden on employers to justify presumptively unlawful policies by showing that the work rules or policies advance a legitimate and substantial business interest that cannot be achieved by a more narrowly tailored rule.
On July 21, 2023, the U.S. Citizenship and Immigration Services (USCIS) announced a new Form I-9 to be used in connection with the verification of employment eligibility. The new form is available for use effective as of August 1, 2023. Employers may continue to use the older version of the Form I-9 (Rev. 10/21/19) through Oct. 31, 2023. After that date, they must use the new form. Use of an older version of the form will subject employers to penalties under Section 274A of the Immigration and Nationality Act, as amended.
On February 22nd, the Supreme Court ruled that an executive or managerial employee otherwise qualified to be overtime exempt, lost that exemption if paid on a daily rate basis.
As background, highly compensated employees, those identified as “Executive” or “Administrative” under the Federal Fair Labor Standards Act (“FLSA”), can be overtime exempt if performing certain high level functions, and if paid on a “salaried basis.” At issue, the U.S. Supreme Court addressed whether an individual, otherwise entitled to exempt status, loses that status if paid on a daily pay basis – that is whether daily paid individuals are receiving a “salary.”
2023 marks a new year and the expansion of the scope of protected classes that will be covered under Pennsylvania anti-discrimination laws. On December 8, 2022, the Independent Regulatory Review Commission approved regulations proposed by the PA Human Relations Commission to expand and clarify classifications of the terms “sex”, “race” and “religious creed” as they pertain to protected classes under the Pennsylvania Human Relations Act (PHRA) and the Pennsylvania Fair Educational Opportunities Act (PFEOA). Most notably, the new definitions clarify coverage of those in the LGBTQ+ community and prohibit discrimination based on hairstyle and hair texture. Although federal laws protecting these subclasses have been in place for some time, they have not been specifically referenced at the state level until now.
On January 5, 2023, The Federal Trade Commission (“FTC”) proposed a new rule that would ban essentially all non-compete agreements that employers impose on their workers. The notice of proposed rulemaking would deem any non-compete clauses with paid staff and independent contractors, as well as unpaid workers, to be an unfair method of competition that must be rescinded and that employers must tell current and former employees they've stopped enforcement.
On December 15, 2022, The National Labor Relations Board (“NLRB”) handed down a finding of merit in Case 31-CA-290326 brought by the National College Players Association (“NCPA”) on behalf of men’s and women’s basketball and football players that charged the University of Southern California (“USC”), the PAC-12 Conference (“PAC-12”) and the National Collegiate Athletics Association (“NCAA”) with an unfair labor practice, alleging they had systematically misclassified players as “student-athlete” nonemployees instead of employees to prevent the athletes from realizing their rights under the National Labor Relations Act.
U.S. trade and professional organizations periodically encounter inquiries from foreign nationals looking for support for a visa application for the United States. The individual is invariably asking for the organization to provide them with a “recommendation” or “opinion” letter to support their O-1 visa application. The inquiry usually raises multiple questions for the organization -- Are we required to provide the letter? What happens if we say yes (or no) to the request? Will the immigration service investigate us if we provide the letter? - and so on. In other cases, the organization is looking more for guidance on how to set limits on such “recommendations,” given that most of the individuals who come to them are not members of the organization.
Maryland’s mandated retirement plan is up and running. Virginia’s and Delaware’s plans are not far behind.
The State of Maryland now requires all private employers, with few exceptions, to provide a retirement savings vehicle for employees. The MarylandSaves program is now active and employers that have at least one W-2 employee can expect to receive notices alerting them to sign up or obtain an exemption.
Delaware is expected to roll out its mandated retirement program in 2025 and Virginia is expected to do so in 2023.
The Offer of Employment letter serves many purposes. The letter must enhance the applicant’s interest in the opportunity and protect the employer against claims that it misrepresented the employment opportunity.
During the course of the pandemic, IT departments were overwhelmed by the pressing need to provide employees with remote access in a very short time. That need may have, in some cases, overridden established processes and procedures around data security.
Although many employees have returned to working on location again, factors indicate that the labor market has changed to more permanently accommodate remote workers. With this shift comes state tax and other employment issues employers must now contend with. This article focuses on some of the state tax issues.
On January 25, 2022, the Occupational Safety and Health Administration (“OSHA”), announced they were formally withdrawing its emergency temporary standard requiring employers with more than 100 employees require their employees to receive the COVID-19 vaccine.
The Sixth Circuit lifted the stay on OSHA’s vaccine or test mandate for employers with 100 or more employees. The Fifth Circuit stayed the mandate pending a review of whether the coronavirus presented a “grave danger” necessitating such sweeping federal action a day after the rules were published. With the stay lifted, employers are left revisiting the requirements of the mandate.
Retirement plan sponsors that allow participant direction of investment (most 401(k) plans) have a fiduciary duty to select and monitor the investments in the plan’s line up solely in the interest of participants and beneficiaries.
Being a government contractor is hard; the rules are complex, and the penalties for non-compliance can be harsh. So, when the President of the United States tells the world that there will be a vaccine mandate for U.S. government contractors, contractors might have some questions.
Employers can no longer rely on their contracts, policies, or industry standards as grounds for seeking a private suit against employees under the Computer Fraud and Abuse Act of 1986 (CFAA). The Supreme Court recently ruled that the CFAA did not regulate a person's authorized access to a computer for an improper purpose. The Court limited claims under the CFAA to a person who exceeds his/her authorized access.
In the close geographic quarters of the District of Columbia, non-compete agreements were a common tool for employers seeking to protect their business from former employees going to work for competitors. Now, employees cannot be bound by such covenants not to compete, and are generally free to take up shop with the competitor across the street. This new law will inevitably change the landscape of DC employment practices.
As a chartered county, Montgomery County has the discretion to determine what actionable discrimination is under County law. As such, effective January 15, 2021, the County Council for Montgomery County, Maryland passed Bill 14-20 which updated the County’s Human Rights law to define harassment, including sexual harassment.
Every winter, Virginia’s General Assembly gathers in Richmond to pass new laws affecting Virginians and Virginia businesses. Three of the most recent and consequential changes affecting employers are changes to Virginia’s minimum wage, paid sick leave to certain employees, and prohibition on disciplining employees for medicinal use of cannabis oil.
In the coming months, association leaders will need to evaluate a range of legal questions and practical concerns as they consider establishing a COVID-19 vaccination policy for their workplace and events. Here are some of the key issues that any association should consider before implementing a vaccine policy.
Spring and summer are the primary months for many associations to hold their annual meetings and special conferences. For many associations, this single event is their largest source of non-dues revenue. It can be a disaster if the event is curtailed or cancelled.
Board members owe a duty to organization to act in good faith, with due care and loyalty to its interests. They likewise owe the organization confidentiality and must act to protect the organization from claims and liabilities where possible.
It is so easy to fall into the trap: an employee comes to a member of the Board of Directors with a complaint about some job concern and gets the director to “bite.” Out of an understandable, or even noble, desire to be a fixer, a director may assure the employee that he will address the concern, and take care of it. But is that a good judgment response?
This webinar discusses what certain states and federal agencies are doing to attempt to limit or prohibit the use of non-competes and practical considerations for employers in light of these recent developments.
This webinar discusses the new Form I-9 and walks participants through the form and proper verification process. It also address new proposed regulations on remote verification procedures, who is eligible and who is not, and the implication of those changes for employers going forward.
Benchmark Litigation, the widely respected guide to leading litigation firms and lawyers, has announced that thirteen Whiteford attorneys have been named 2024 “Litigation Stars,” “Future Stars,” “Labor and Employment Stars,” and “40 & Under” in DC, Delaware, Maryland and Virginia (*new recognition in 2024).
87 lawyers from Whiteford, Taylor & Preston have been selected by their peers for inclusion in The Best Lawyers in America® 2024 (copyright 2023 by Woodward/White, Inc., of Aiken S.C.). New practice areas of recognition include CleanTech Law and Entertainment and Sports Law. The lawyers selected are based in the firm’s Delaware, Maryland, Pennsylvania, Virginia and Washington offices. Client comments are posted on the Best Lawyers website, at bestlawfirms.com.
Benchmark Litigation, the widely respected guide to leading litigation firms and lawyers, has announced that sixteen Whiteford attorneys have been named 2023 “Litigation Stars,” “Future Stars,” “Labor and Employment Stars,” and “40 & Under Hotlist” in DC, Delaware, Maryland and Virginia.
73 lawyers from Whiteford, Taylor & Preston have been selected by their peers for inclusion in The Best Lawyers in America® 2023 (copyright 2022 by Woodward/White, Inc., of Aiken S.C.). The lawyers selected are based in the firm’s Delaware, Maryland, Pennsylvania, Virginia and Washington, D.C. offices. Client comments are posted on the U.S. News & Best Lawyers web site, at bestlawfirms.com.
Benchmark Litigation, the widely respected guide to leading litigation firms and lawyers has announced that sixteen Whiteford attorneys have been named 2022 “Litigation Stars,” “Future Stars,” “Labor and Employment Stars,” and “40 & Under Hotlist” in DC, Delaware, Maryland and Virginia.
Whiteford, Taylor and Preston is pleased to announce that U.S. News and World Report - Best Lawyers® “Best Law Firms” has awarded the firm exemplary rankings for 2021. Twenty-two of the firm’s practices are ranked at the national level, and the firm’s Bankruptcy and Environmental Law practices have been recognized with national Tier 1 rankings.
Four lawyers from Whiteford, Taylor & Preston have been named to the Benchmark Litigation 40 & Under Hotlist: Todd Brooks, Aaron Casagrande, Cara Murray, David Stevens.
Whiteford, Taylor and Preston is pleased to announce that U.S. News and World Report - Best Lawyers ® “Best Law Firms” has awarded the firm exemplary rankings for 2020. Twenty of the firm’s practices are ranked at the national level, including two bankruptcy practices with national Tier 1 rankings. At the state level, an additional forty-two practices have been ranked in Maryland, Washington, D.C., and VA.
Whiteford, Taylor & Preston is pleased to announce that U.S. News and World Report - Best Lawyers ® “Best Law Firms” has awarded the firm exemplary rankings for 2019. Eighteen of the firm’s practices are ranked at the national level, including two practices with national Tier 1 rankings: Litigation and Bankruptcy. At the state level, an additional forty-six practices have been ranked in Maryland, Washington, D.C., and VA.
Whiteford, Taylor & Preston is pleased to announce that 41 of its attorneys are listed among the 2017 Super Lawyers and Rising Stars in Maryland and Kentucky joining the sixteen who were listed earlier this year in Delaware, D.C., Pennsylvania and Virginia.
