Proposed Title IX Rule Changes Provide Clarity for Schools, Support for Survivors and Due Process Rights for All
Ethical Misconduct in Coaching
Is the Playing Field Level?
Labor & Employment Law
At Whiteford, Taylor & Preston, our experience in labor and employment law allows us to help clients create a practical platform on which to base labor and employee relations decisions.
Labor & Employment Litigation
Every company is different. We look at corporate culture, history and character to understand the unique relationship between management and employees. Using this understanding, we provide labor and employment law advice and counsel tailored to achieve personnel objectives and avoid unnecessary litigation.
Should litigation arise, our labor and employment attorneys combine their experience in the intricacies of labor law, employment law, and litigation to give you the benefit of in-depth legal knowledge and proven courtroom technique.
Labor & Employment Law Experience
Our attorneys bring broad-based experience to the practice of labor and employment law. Our team includes attorneys formerly with the U.S. Department of Labor, along with those whose careers have been devoted to representing and counseling management in labor relations issues.
Our labor and employment law clients represent virtually every type of business and industry, ranging in size from Fortune 500 companies with thousands of employees in various locations, to small, closely held businesses and not-for-profits. We have also represented many state and local governmental entities in Maryland over the years in litigation, arbitration, contract negotiations, and advice and counsel on employment decisions.
Our experience includes union avoidance, union decertification, election campaigns, collective bargaining negotiations, grievance arbitration, employee handbooks and work rules, affirmative action, wage and hour disputes, occupational safety and health matters, advice and counsel on drafting effective personnel policies and procedures and handling employment discrimination cases. We spend considerable time training our clients and their supervisors on a host of employment related issues ranging from how to properly interview and hire the best applicants, provide appropriate benefits and compensation, manage and where necessary discipline their employees, provide a safe workplace free from harassment or other improper conduct, and how supervisors can more effectively manage their employees.
Our labor and employment law section conducts litigation of representation matters and unfair labor practice charges (offensive and defensive) before the National Labor Relations Board and the Federal Courts of Appeal. We also litigate employment related cases involving claims of discrimination, wrongful discharge, health and safety, whistleblowers and other claims brought by employees against employers in state and federal courts, state and federal administrative agencies and Boards throughout the Mid-Atlantic region. We are admitted to practice in Maryland, D.C., Virginia and New York. Members of this legal section also have extensive experience in immigration matters as it relates to employment and labor laws.
’Tis the Season! Celebrating the Holidays in a #MeToo Era
The Impact of #MeToo is Deeper Than You Think?
Sexual Harassment in the #MeToo Era and Minimizing Risk
The number of sexual harassment claims reported to the EEOC, as well as the amounts recovered by the EEOC and in jury awards, are on the rise. In 2015, 6,870 sexual harassment complaints were filed with the EEOC. Between 2010 and 2016, private employers paid nearly $700M to employees arising from harassment claims filed with the EEOC. As of October 2018, the EEOC had already filed 41 sexual harassment lawsuits – a more than 50% increase since 2017. Similarly, as of October 2018, sexual harassment charges filed with the EEOC in 2018 increased by more than 12% from 2017 and the EEOC has already recovered nearly $70M in sexual harassment claims in 2018 – an increase from the $47.5M it recovered in 2017.
Under Title VII of the Civil Rights Act, and many similar State civil rights laws, the liability for sexual harassment can vary greatly based on the nature of the claim. The Supreme Court companion cases of Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) set out a standard holding an employer strictly liable for instances of sexual harassment by a supervisor, but left open a window, by way of an affirmative defense, where the employee suffered no tangible adverse employment action as a result.
In light of the #MeToo movement, companies that have held holiday parties in the past are foregoing hosting holiday parties to avoid the potential for liability. However, concerns about #MeToo should not dissuade companies from celebrating staff, the holidays, and end-of-the-year accomplishments. Instead, companies should be proactive in planning holiday parties, as well as in educating employees about appropriate behavior, before hosting such parties to minimize risks. Below are suggested considerations for companies that do not want to forego throwing a holiday bash.
This webinar, sponsored by Whiteford, Taylor & Preston and LeadingAge Maryland, will outline practical steps which assist employers in bringing existing leave policies in compliance with the new “Maryland Healthy Working Families Act.” Topics will include: core provisions; accrual and carry over of leave; permissible uses of leave; recordkeeping obligations; and enforcement procedures.
As most Maryland employers are aware, on January 12, 2018, the Maryland legislature overrode Governor Hogan’s veto of the Maryland Healthy Working Families Act. That legislation was passed by the Maryland Legislature at the end of its 2017 term. For a number of reasons, Governor Larry Hogan vetoed that legislation in May, 2017. Although the supporters of this new legislation had sufficient votes to override the Governor’s veto last year, they took no action until the start of the 2018 legislative session, which also happens to be the start of election year for Maryland’s next Governor.
In the opening days of the 2018 legislative session, Maryland’s General Assembly overrode Governor Larry Hogan’s veto of the paid sick leave bill passed in 2017. Use of the veto override procedure meant that the law would take effect only 30 days after it was enacted, meaning that the law will become effective on February 11, 2018. During the final days before the law’s effective date, the General Assembly considered a bill to delay its effective date to July 1st, but the legislation appears unlikely to pass in the House of Delegates. As a result, mandatory sick leave will shortly become a reality in Maryland.
The announcement of President Donald Trump’s nominee for the vacant seat on the National Labor Relations Board (NLRB) is another sign that some controversial prolabor decisions of the Obama-era Board will be revised.
Following nearly a year of speculation, the Maryland General Assembly has voted to override Governor Larry Hogan’s veto of the paid sick leave bill passed by the General Assembly near the close of last year’s legislative session. The Maryland Healthy Working Families Act (HB 1/SB230) will now take effect in thirty days absent further action by the General Assembly to provide additional time to prepare for its implementation, and will have significant implications for Maryland employers.
Effective September 18, 2017, all employers must use Form I-9 with a Revision Date of 7/17/2017 for verification of employment authorization of all newly hired employees. The new form contains minor changes to language on the form, largely renumbers the list of acceptable documents and updates list C documents to include the most current version of a certification or report of birth abroad to the U.S. Department of State.
Many employers saw their ranks diminished on February 16 as a host of employees stayed away from work in support of the nationwide “A Day Without Immigrants” campaign.
Employers are likely to see that situation repeated as more protests are scheduled for the coming months. A walkout to support “A Day Without a Woman” is scheduled for March 8, and another “A Day Without Immigrants” is scheduled for May 1.
Effective December 1, 2016, the US Department of Labor regulations defining overtime-exemption eligibility requirements will change, with the impact upon employers being that fewer employees may be eligible for payment on a level salary basis for all hours worked – that is, employers may lose their overtime exemption. The new requirements will have a direct impact upon any current salaried employee being paid a salary of less than $913 per week.
According to the DOL, reportable persuader activities would include any action, conduct, or communication by a consultant on behalf of an employer that would directly or indirectly persuade workers with regard to their rights to organize and bargain collectively, regardless of whether the consultant has direct contact with the workers. Any lawyer who works on written materials to be distributed to employees would be considered a persuader even if there is no direct contact between the lawyer and the employees. As a result, the lawyer’s fees generated for those activities must be disclosed.
Just how the dismissal of the petition to unionize some Northwestern University football players will affect other representation issues before the National Labor Relations Board (NLRB) is uncertain, but one issue the Board didn’t touch is whether scholarship football players should be considered employees.
The D.C. Protecting Pregnant Workers Fairness Act of 2014 (“the Act”) became effective March 3, 2015. Under the Act, D.C. employers are required to provide accommodations, when requested, to employees when they are needed due to pregnancy, childbirth, related medical conditions or breastfeeding.
The D.C. Wage Theft Prevention Amendment Act of 2014 (WTPAA) became effective February 26, 2015. Under the WTPAA, all D.C. employers must provide new hires with specific information about their employment. Further, effective May 27, 2015, D.C. employers must provide all existing employees with updated information about their employment. This new notice requirement applies to all D.C. employers regardless of size. Both new hires and existing employees must be given notice of the terms and conditions of their employment in the format set forth in the Notice of Hire- Employment Status and Acknowledgement of Wage Rate(s) (Notice of Hire). A copy of the Notice of Hire can be found at the D.C. Depart of Employment Services website, http://does.dc.gov.
Small employers with less than 100 employees may opt to install a “SIMPLE” IRA Plan or a Simplified Employee Pension Plan (SEP) as an alternative to a traditional qualified retirement plan such as a profit sharing plan or 401(k) plan. The benefits of the arrangements are meaningful – there is no required discrimination testing, no annual reporting, and no lengthy plan document required to be adopted, but, by establishing such a plan, a small employer can provide a meaningful retirement benefit to employees and a business owner can shelter income from current taxes.
How Simple is that Simple Retirement Plan, Really?
Social Media & Employment Law
Hat Fight: NLRB Ruling Against Company Hat Policy Rejected by D.C. Circuit
Check Your Policies - They May be Unlawful
Proposed Legislation in Maryland Regarding the Definition of Supervisors
In Vance v. Ball State University, 133 S. Ct. 243 (2013), the Supreme Court narrowed the EEOC’s definition of a supervisor, which included individuals with broad day-to-day supervisory authority, to find that an employer can be held vicariously liable for the discriminatory acts of a supervisor, if the supervisor has the power to take tangible employment actions against the employee. In other words, the definition of supervisor was limited to those individual with the ability to hire, fire, transfer, or affect the status of the employee. The Maryland General Assembly has introduced House Bill 42, the “Fair Employment Preservation Act of 2015,” to codify existing state law and apply the broader definition of supervisor adopted by Maryland state and federal courts prior to the Vance ruling.
The advent of social media has changed the landscape of how people communicate, share and connect with others online, through applications such as Facebook, Twitter, LinkedIn, Instagram, and Snapchat, among others. As social media has become the conduit by which people share thoughts, comments and videos online, employers have begun using the same tools to recruit potential hires, convey their brands, retain employees and increase visibility in the marketplace.
The purpose of this note is to summarize the significant differences between the criminal background check bill introduced in the Montgomery County Council in July (“Fair Criminal Record Screening Standards”) and the version of that bill that was passed into law by the Council on October 28, 2014. We also provide you with a comparison of the Montgomery County law to the District of Columbia’s corresponding criminal history law (“Fair Criminal Record Screening Amendment Act of 2014”).
Applicants' Criminal Histories May Soon Be Off Limits in Initial Interviews in Montgomery County and District of Columbia
The "Unpaid" Intern
The Americans with Disabilities Act: A Brief Overview of What Employers Should Know
Employer Liability for Harassment of Employees by Strangers
The District of Columbia has enacted a law that will prohibit employers with 10 or more full-time employees from inquiring about a job applicant’s criminal history during the initial application process. There is similar legislation pending in Montgomery County, Maryland, and a public hearing on the proposed law is scheduled for September 9.
Can employers can be held liable for harassment of their employees by third parties (non-employees)?
You are contemplating hiring an “intern” for your organization. You have budget constraints, but you could sure use the extra help. What should you do? Should the intern be classified as an unpaid volunteer or paid employee? Recently, the US Department of Labor (“DOL”) issued guidelines on how to structure an internship program in compliance with the Fair Labor Standards Act.
Recent memoranda issued by the General Counsel of the NLRB’s Operations Management Division make it clear that OSHA, Labor’s Wage and Hour Division, and the NLRB Regional Offices are going to be taking a more coordinated, less compartmentalized approach to addressing workplace complaints. The memoranda also encourage personnel from those agencies to advise claimants about possible claims under other labor laws.
Employers in Baltimore will face new restrictions in conducting criminal background checks now that the city council has passed a tough new “ban the box” law.
Bill 13-0301, titled “Ban the Box – Fair Criminal Records Screening Practices,” passed the Baltimore City Council on April 28 and was expected to gain Mayor Stephanie Rawlings-Blake’s signature. It is to go into effect 90 days after adoption.
On January 28, a group of football players at Northwestern University filed a union election petition with the National Labor Relations Board (NLRB) in Chicago. On Wednesday, March 26, 2014, the Board ruled that certain student athletes are employees entitled to a union election. This is the first time college athletes have sought to unionize under the National Labor Relations Act (NLRA), and this ruling could change college athletics forever.
The U. S. District Court for the District of Columbia recently dealt with a question that has rarely been addressed in sexual harassment/ hostile work environment cases: under what circumstances is an employer liable for the sexual harassment of an employee by one of that employee’s subordinates?
Maryland’s Reasonable Accommodations for Pregnant Workers Act goes into effect October 1, meaning Maryland employers with 15 or more employees must provide reasonable accommodations to employees who experience a disability because of a pregnancy.
Basically, the new law requires employers to treat pregnancies in much the same way disabilities covered by the Americans with Disabilities Act (ADA) are handled. Accommodations are required unless they would impose an undue hardship on the employer.
The impending need for compliance with the Patient Protection and Affordable Care Act of 2010 has been a source of great concern for employers. Recently, the U.S. government announced a one-year delay in the implementation of one of the statute’s central provisions, the employer mandate. Despite that extension, the law still requires that employers take action this year in order to remain compliant. This article examines one of the critical provisions of the law which remains in place notwithstanding the delay of the employer mandate.
Affordable Care Act Requirements for Employers: Although Mandate Delayed, Action Still Required
Maryland Legislature Creates New Procedure for Employees Pursuing Wage Claims
Senate Breaks NLRB Logjam
During the most recent legislative session, the Maryland General Assembly enacted legislation that creates an entirely new procedure by which employees who believe they are due unpaid wages can seek to obtain a lien against their employer for the wage amount. Most significantly, the procedure allows for the entry of a lien prior to a full adjudication in which the employee is obligated to demonstrate the merits of the wage claim. This article examines the new statute, which takes effect October 1, 2013.
For the past several years, the political stalemate in Washington, D.C. has resulted in the National Labor Relations Board operating with fewer than its standard complement of five members. Earlier this month, an agreement between Senate Republicans and the Obama administration resulted in the confirmation of new NLRB members, breaking an impasse that has resulted in numerous legal challenges to decisions made while the NLRB was operating with members who had not been confirmed by the Senate. This article examines the backgrounds of the new Board members, and offers insights as to what the new membership composition will mean for employers in the coming years.
In a long-awaited decision, the U.S. Court of Appeals for the D.C. Circuit has struck down the National Labor Relations Board’s mandate that all employers covered by the National Labor Relations Act post a notice of employee rights under the law. This article examines the controversy surrounding the Board’s unprecedented posting requirement and the impact of the D.C. Circuit’s decision.
On March 8, 2013, the U.S. Citizenship and Immigration Services (“USCIS”) published a revised Employment Eligibility Verification Form I-9, which contains some slight modifications to the familiar form used by employers when verifying the eligibility of newly hired employees to work in the United States. While employers were given a sixty-day grace period to begin using the revised form, as of May 7, 2013, the failure to use the revised form will subject an employer to statutory penalties. This article examines the revisions made to Form I-9.
The Maryland legislative session typically includes the introduction of a number of bills affecting the relationship between employers and their employees. This article notes several such bills that were considered – but failed to pass – in the most recent session and examines a newly enacted law creating additional obligations for employers with pregnant employees.
D.C. Circuit Nixes NLRB Posting Requirement
Employers Now Required to Use Revised Form I-9 When Verifying Employment Eligibility
End of Maryland Legislative Session Brings New Law Addressing Employers' Obligation to Pregnant Employees
Court Order Indefinitely Delays Implementation of NLRB Notice Posting Requirement
Maryland Legislature Passes Bill Prohibiting Employers from Requesting Social Media Passwords
Fourth Circuit Holds That Internal FLSA Compliant Can Support Retaliation Claim
In the latest development of the ongoing drama surrounding the National Labor Relations Board’s mandate that all employers covered by the National Labor Relations Act must post a notice of employee rights under the law, the U.S. Court of Appeals for the District of Columbia Circuit has issued an order staying implementation of the posting requirement, which had been set to take effect on April 30, 2012. This article examines the controversy surrounding the posting requirement and the impact of the D.C. Circuit’s decision.
In a recent decision, the United States Court of Appeals for the Fourth Circuit held that an employee’s internal complaint to company management about possible wage-hour violations may be protected under the Fair Labor Standards Act’s anti-retaliation provisions. The Fourth Circuit reversed the decision of the trial court, which had dismissed the case based on its finding that the informal complaints were not protected under the FLSA. This article examines the facts of this important case, as well as the significant implications for employers.
During the recently completed legislative session, the Maryland General Assembly became the first state legislature in the country to pass legislation prohibiting employers from requesting access to employees’ and job applicants’ personal computer accounts, most notably Facebook and other social media accounts. This article examines the effects the law will have on how Maryland employers handle hiring decisions and internal investigations.
Are Your Employees Misclassified?
NLRB Adopts Final Rule Implementing Some, But Not All, Proposed Regulations
NLRB Again Delays Effective Date of Notice Posting Requirement
Court Addresses Interplay Between FMLA and ADA Obligations
Worker classification has become a major concern for employers, as governmental agencies have stepped up their efforts to investigate allegations that individuals who are properly considered employees have been misclassified as independent contractors. Recently, the IRS announced a program under which employers may be eligible to reclassify workers as employees at a reduced cost and without the threat of major IRS penalties. This article examines the potential benefits – and pitfalls – associated with the new program and provides an overview of the worker misclassification conundrum.
One particularly vexing issue that employers are often faced with is the confluence of FMLA and ADA concerns that arise when an employee experiencing a serious health condition – which may also qualify as a disability for purposes of the ADA – is approaching the end of his or her FMLA leave allotment. While the employer’s obligations under the FMLA can be determined by reference to concrete obligations imposed by that statute, the obligations imposed by the ADA frequently require a case-by-case determination of whether the accommodation needed by an employee is reasonable under the circumstances. The interplay between these statutes frequently causes significant headaches for employers. This issue was recently taken up by the U.S. District Court for the District of Maryland. This article examines the case, which has significant lessons for employers attempting to maintain compliance with these statutes.
On December 21, the NLRB adopted a final rule implementing certain changes to the procedures governing union elections. While the NLRB has chosen to forego implementation of some of the more controversial proposed rules that had previously been announced, the changes included in the final rule will nevertheless have significant consequences for employers who may be targeted for organizing. This article examines the Board’s final rule and its potential impact for employers.
Last August, the National Labor Relations Board issued a regulation requiring that all employers subject to the National Labor Relations Act post a notice advising employees of their right to form unions and engage in other activities protected by the Act. The effective date of the posting requirement was originally set for November 2011, but was later pushed back to January 31, 2012. The NLRB has now further delayed the implementation date to April 30.
Special from BLR's Advanced Employment Issues Symposium: In a previous article, attorney Kevin McCormick briefed us on new union tactics and the new NLRB aggressiveness; today, his 7 steps to get ready for union organizers plus an introduction to a unique guide just for small, or even one-person, HR departments.
Special from BLR's Advanced Employment Issues Symposium: Unions are desperate, says attorney Kevin McCormick, because their numbers are down and many of the things they once promised workers (like safer workplaces) are now mandated by government agencies. The result? They're getting aggressive in new ways.
In the Fall 2011 issue of the Labor & Employment Newsletter, we reported on a rule adopted by the National Labor Relations Board that will require employers to post a written notice of employee rights under the National Labor Relations Act. The rule was scheduled to take effect November 14, 2011. This Alert is to inform you that the NLRB has now postponed the implementation date of the posting requirement to January 31, 2012.
NLRB Issues Final Rule Requiring Employers to Post Workplace Notice of Employee Rights
New Credit Check Restrictions for Maryland Employers Take Effect October 1st
Maryland Court of Appeals Clarifies Scope of Wrongful Discharge Tort
Maryland courts have long recognized a common law right of action for employees who allege that they were terminated in violation of a public policy. While the parameters of this cause of action defy easy explanation, the Court of Appeals’ recent decision in Parks v. Alpharma, Inc., sheds some light on just what constitutes the sort of public policy that will support a wrongful discharge claim. This article takes a closer look at the wrongful discharge tort and the Court of Appeals’ most recent attempt to clarify its reach.
On August 30, 2011, the National Labor Relations Board issued a final rule that will require covered employers to post and disseminate a notice to employees summarizing the rights protected by the National Labor Relations Act. This article addresses the immediate issues raised by the new requirement, as well as the broader concerns it raises for employers going forward.
During its 2011 legislative session, the Maryland Legislature passed the Job Applicant Fairness Act, which was signed into law by Governor O’Malley on April 12. The law imposes significant restrictions on the ability of employers to perform credit checks on job applicants and employees. This article examines the details of the new law, and the likely effects for employers.
Social Media in the Workplace: Part 2
Attention Employers with DC Employees: Final Regulations for Accrued Sick and Save Leave Act Issued
IN BRIEF: NLRB Upholds Union's Right To "Banner"
In November 2008, the District of Columbia enacted the Accrued Sick and Safe Leave Act of 2008 ("ASSLA" or the "Act"). In doing so, the District became the second of only two jurisdictions in the country to mandate paid sick and "safety" leave. Unfortunately, the new law resulted in more questions than answers. The District recently issued final regulations in an attempt to clarify the ASSLA.
This is the second of two articles on the potential legal issues that can arise from the use and misuse of social media in the workplace. Part 1 covered the use of social media in the pre-employment setting. Part 2 covers the use of social media in employment and post-employment situations.
Social Media in the Workplace: Part 1
Department of Labor Broadly Interprets "Son or Daughter" For Purposes of FMLA Leave
Supreme Court Ruling Against NLRB Results in Remand of Almost 100 NLRB Decisions
COBRA Health Continuation Coverage Subsidy Extension: Frequently Asked Questions
On June 17th, the U.S. Supreme Court ruled that the National Labor Relations Board was not authorized to issue decisions in pending cases during a twenty-seven month period in which three of its five seats were vacant. The ruling was a victory for the employer in the case, New Process Steel, which had challenged an adverse ruling by the Board. But more significantly, the ruling of the Supreme Court puts into question almost 600 decisions issued by the two-member Board during a period of more than two years.
Although it may not come as a surprise to many HR professionals, in Maryland, an employee may, under certain circumstances, receive unemployment benefits while still employed.
As many seasoned HR professionals may know, oftentimes when a deposition is taken of a party or witness in litigation, the lawyer may request that the deponent or witness will "read and sign" the deposition.
Technically, this means that the witness is required to review the deposition transcript and make certain corrections on an "errata" sheet within 30 days from receipt of the transcript. Failure to do so will prevent the witness from later attempting to clarify and/or change his or her deposition testimony.
The EEOC Issues Its Long-Awaited Proposed ADAAA Regulations
When is the Boss Personally Liable for a Company's Failure to Pay Proper Wages?
The District Court Dismisses ADA Claim
On March 10, 2009, Senator Tom Harkin (D-Iowa) and Representative George Miller (D-California) reintroduced the “Employee Free Choice Act of 2007” (EFCA) (S. 1041, H.R. 800), legislation, which, if passed, would dramatically change the way unions can organize workers. The EFCA was initially introduced in 2007, but was derailed by the Senate.
EEOC Provides Employer Guidance to Deal With H1N1 Flu Virus and Other Pandemic Concerns
Imposing Pay Cuts on Your Exempt Employees -- Be Very Careful or the Cost-cutting Measure Can Cost You Big Time
In today's unsettled economic climate, many employers are considering various ways to reduce payroll expenses. One common approach is to simply cut the salaries for your exempt employees.
Although such a practice can work, if it is not done correctly you may wind up losing the exempt status for your salaried employees, resulting in a significant unpaid overtime liability for all of those workers who may have been subject to the salary reduction.
Poorly-drafted Severance Agreements Can Cost You More Than You Expect
Fourth Circuit Closes Out Bank Officer's Account
Think Before You Type
On-Call Policies: How to Use Them Correctly & Reduce Labor Costs
Economic Stimulus Act -- Impact on COBRA Health Continuation Coverage: Frequently Asked Questions
The Supreme Court Expands Employees' Rights: Broadening the scope of relief for older workers and those who allege retaliation
Maryland's Flexible Leave Act: Time to Update Your Employee Handbooks
Is Expansion Of The Americans With Disabilities Act On The Horizon?
Payout Of Accrued But Unused Leave At Termination: The Rules Change -- Yet Again!
Significant Changes in Employment Eligibility Procedures
Attorneys' Fees Awarded Under Maryland's Wage, Payment And Collection Law
Amendments to the Jobs for Veterans Act of 2002
EEOC Reports Sharp Rise in Job Bias Charges
The attached alert has been prepared for general informational purposes only and is not intended as specific legal advice and no legal or business decision should be based solely on its content.
Last Fall, the Maryland Department of Labor, Licensing and Regulation (DLLR) changed its long-standing policy with regard to the payout of accrued but unused leave when an employee is terminated.
DLLR Changes Policy Regarding Payout of Accrued But Unused Leave
Dramatic Changes In the Enforcement Of State Discrimination Claims
Maryland's new Living Wage Law -- 15 Things You Need to Know
Extended FMLA Benefits for Military Families
Background Checks and Mistaken Identity
DOL Publishes Final Rule on Labor Certifications
Supreme Court Issues Pay Discrimination Decision
Recent Legislative Developments in Maryland
The Revised 2007 EEO-1 Form: New Racial Designations and Job Categories
Supreme Court to Review "Cat's Paw" Case
Restrictive Covenants: Sometimes They're Not Worth the Pater They're Printed On!
What! Me Worry?? I Have Insurance to Cover that Claim!!
Americans with Disabilities Act (ADA) Blind Employees and Vision Impairments Obtaining Medical Information Confidentiality Rules
Fair Labor Standards Act (FLSA) DOL Offers Guidance on Defining "Volunteers"
Fair Labor Standards Act (FLSA) Worker Walking Relating to Donning, Doffing Safety Gear Is Compensable, Justice Rules
EEO - Age Discrimination
This page features links to articles written by Whiteford, Taylor & Preston attorneys that are in the Winter 2004 issue of the Employment Law Update.
The National Labor Relations Board (NLRB) recently held that an employer violated federal labor law by telling union supporters to look for jobs elsewhere if they were dissatisfied with their current jobs. The NLRB agreed with the administrative law judge (ALJ) that the statement constituted an unlawful threat to discharge workers based on their protected, concerted activities.
A telephone company customer service representative who was diagnosed as HIV positive while on medical leave for work-related stress is not disabled under the Americans with Disabilities Act, the U.S. Court of Appeals for the Fifth Circuit ruled Blanks v. Southwestern Bell Communications Inc., 13 AD Cases 1253, 5th Cir., 11/4/02).
An African American employee at a printing company in Missouri offered sufficient evidence to submit to a jury the issue of whether his employer knew or should have known about the alleged racially hostile work environment – including a physical threat of death directed specifically at the employee – but failed to take prompt and effective remedial action, the U.S. Court of Appeals for the Eighth Circuit recently ruled (Reedy v. Quebecor Printing Eagle, Inc., 8th Cir., 6/30/03).
For decades, employers have struggled with classifying their employees as “exempt” or “unexempt” from federal overtime compensation requirements under the FLSA, which became law in 1938. The current federal regulations governing the overtime exemption for “white —collar” employees are badly out of date and confusing. The costly effect of mis-classification has been substantial back pay liability and, more recently, class-action lawsuits. On March 31, the U.S. Department of Labor (DOL) published a proposal to modernize its regulations defining overtime exemptions for “white collar” employees in the administrative, executive, and professional employee classifications. The DOL estimates that the regulations will cover 110 million employees in 6.5 million establishments. The 90-day public comment period expired on June 30, 2003, and the DOL hopes to have the final regulations in effect by December 2003.
In a decision issued on January 15, 2002, the United States Supreme Court decided the hotly contested issue of whether an agreement between an employer and an employee to arbitrate employment-related disputes, bars the Equal Employment Opportunity Commission (“EEOC”) from pursuing victim-specific judicial relief, such as back pay, reinstatement, and damages, in an enforcement action alleging that the employer violated the Americans With Disabilities Act (“ADA”).
A Georgia dental practice did not violate federal disability law by discharging a hygienist after finding out that he was HIV-positive, the U.S. Court of Appeals for the Eleventh Circuit held, affirming a lower court’s summary judgment to the employer, Waddell v. Valley Forge Dental Assocs. Inc., (11th Cir., December, 2001).
In holding that an employer need not accommodate an employee, the U.S. Court of Appeals for the Tenth Circuit found that a doctor’s note that stated the operation of heavy equipment “may pose problems” meant that the employee could not perform essential functions of a position. Mathews v. Denver Post, (10th Cir. 263 F.3d 1164 2001). Therefore the employer properly terminated an epileptic employee where the employee’s doctor stated that performing some of the essential functions of the job “may pose problems.”
In the recent case of Porterfield v. Mascari II, Inc., (Md. Ct. of Special Appeals, January, 2002) a female employee who consulted a lawyer after receiving a written warning for poor performance, and, as a result, was fired, cannot maintain a cause of action for wrongful discharge.
In McCabe v. Medex (Maryland Court of Special Appeals, Sept. 2001) , Timothy McCabe began working for Medex as a sales representative in November 1998. McCabe received an annual salary of $49,000, plus commissions. At Medex, the fiscal year ran from February 1, 1999 through January 31, 2000. Pursuant to Medex’s Employee Handbook, all commissions were “conditional upon meeting targets and the participant being an employee at the time of actual payment . . . .”
Recently, in Toyota Manufacturing, Kentucky, Inc. v. Ella Williams, the Supreme Court made clear that the Americans with Disabilities Act (“ADA” or “Act”) imposes strict standards for finding “disability” status under the Act. While the case specifically addressed limitations on manual tasks caused by carpal tunnel syndrome and other conditions, the Court made clear that the Act generally should be strictly construed to create a “demanding standard” for an individual to qualify as “disabled” under the Act.
In the case of Baltimore Harbor Charters, Inc. v. Frank Ayd III (Sept., 2001), the Maryland Court of Appeals ruled that the founder and former president of Baltimore Harbor Charters, Inc., can keep the $66,000 he won in his breach of contract suit against the company. and can also try to treble that amount in a new trial under the Maryland Wage Payment and Collection Act.
The recently ended session of the Maryland legislature has passed legislation prohibiting discrimination on the basis of sexual orientation in employment, housing, and public accommodations.
The new legislation amends Article 49B, the State’s current anti-discrimination law which protects from discrimination any person claiming to be aggrieved by an alleged discriminatory act based on race, sex, color, national origin, age, religion, marital status, or disability. Sexual orientation is defined as male or female homosexuality, heterosexuality, or bisexuality.
President Bush’s announcement that as many as 50,000 members of the National Guard and Reserves may be called up in the wake of terrorist attacks on the World Trade Center and the Pentagon is prompting the Labor Department to ramp up efforts to inform employees and employers that jobs and benefits are protected in such situations.
Recently, the Maryland legislature passed a bill authorizing Maryland employers to conduct on-site drug testing of job applicants. The law became effective on October 1, 2001. It does not apply to testing of current employees. Under existing Maryland law, passed in 1989, employer substance abuse testing is limited to state certified labs. The law contains a series of procedural safeguards such as retesting of an original positive result, notification to the employee being tested of his/her rights, chain of custody safeguards, etc.
Setting a precedent for how companies can structure workplace labor-management committees without running afoul of labor laws, the National Labor Relations Board ruled that Crown Cork & Seal Company got it right. Crown Cork & Seal Co., 334 NLRB No. 92, 7/20/01.
Kentucky River Community Care, Inc. (KRCC), an operator of a mental health care facility, refused to comply with an order to bargain with a labor union, arguing that the bargaining unit was not properly certified because it was made up of nurses who were “supervisors.” KRCC contended that the National Labor Relations Board (NLRB) was incorrect in not exempting the nurses from the appropriate bargaining unit. It also argued that KRCC should not have been allocated the burden of proving the supervisory status of the nurses.
On May 30, Peter Guattery presented a webinar that outlined practical steps to assist employers in bringing existing leave policies in compliance with the new “Maryland Healthy Working Families Act.” Topics included: core provisions; accrual and carry over of leave; permissible uses of leave; recordkeeping obligations; and enforcement procedures.
On December 5, WTP hosted a webinar on "Immigration Enforcement and Employment Verification in a Time of Extreme Vetting."
Whiteford, Taylor & Preston is pleased to announce that Chambers and Partners has once again ranked the firm highly in its 2017 list of leading firms and business lawyers. This year’s recognition includes a record 29 attorneys in 4 states, the District of Columbia and Afghanistan.
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.
As a reminder to all clients, the DOL Final Regulations which substantially modified the salary basis test for exempt employees under federal Wage and Hour laws, will go into effect on December 1. As discussed in our client alert when the regulations were issued, these regulations will more than double the current required salary for certain exempt employees. Employers who have not reviewed their current staffing to determine how these regulations will affect them, should do so now.
Whiteford, Taylor & Preston is pleased to announce that, in addition to ranking the firm highly in its 2016 list of Maryland’s leading firms and business lawyers, Chambers and Partners have added new Whiteford lawyers in Maryland and Delaware.
The practice group rankings are based on the high rankings of 21 individual lawyers.
Whiteford, Taylor & Preston is pleased to announce that the 2015 edition of Chambers USA recognizes 17 of its lawyers as leaders in their fields and, in addition, has ranked six of Whiteford’s practice areas.
Whiteford Taylor & Preston LLP is very gratified to announce that the firm has once again received exemplary ratings in the fifth annual U.S. News & World Report rankings of law firms.
Please attend WTP's 22nd Annual 2008 Employment Law Update Seminar
Friday, October 3rd
The Tremont Grand
225 N. Charles Street, Baltimore MD
8:30 am - 3:15 pm
Please join us for this educational and informative all-day seminar dedicated exclusively to employment related issues and concerns for our clients and friends of the firm. Our workshop format allows you to learn from WTP attorneys and your peers.
Please attend WTP's 21st Annual 2007 Employment Law Update Seminar
Wednesday, October 10th
Tremont Grand Hotel
225 N. Charles Street, Baltimore MD
8:30 am - 3:15 pm
You are cordially invited to an all-day seminar dedicated exclusively to employment-related issues and concerns for our clients and friends of the firm. The workshop format allows you to learn from WTP attorneys and your peers. We hope that you will be able to join us for this educational and informative day.
Guest Speaker: J. Ronald DeJuliis, Maryland Commissioner of Labor & Industry
Whiteford, Taylor & Preston LLP (WTP) is pleased to announce that 36 WTP attorneys have been named in Maryland Super Lawyers publication. Maryland Super Lawyers will appear in a special advertising section in the January 2007 issue of Baltimore Magazine and in the Maryland Super Lawyers magazine.
Whiteford, Taylor & Preston LLP is delighted to announce that Kevin C. McCormick was appointed President of the Board of Directors for Meals on Wheels of Central Maryland. Elected at the Board's June 27 annual meeting, McCormick - a board member since 1999 - follows in the footsteps of immediate past president, Martin L. Wake.
2006 Employment Law Update Seminar
Tuesday, May 9th
Baltimore Convention Center
8:30 a.m. - 3:15 p.m.
This will be our 20th year of an all-day seminar dedicated exclusively to employment-related issues and concerns for our clients and friends of the firm. We hope that you will be able to join us for this educational and informative day
The workshop format allows you to learn from WTP attorneys and your peers.
Their names appear in Who's Who Legal: USA - Management Labour & Employment, a new publication produced by the highly respected British survey group that has produced the International Who's Who of Business Lawyers for many years.