Labor & Employment

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.

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Articles

Accountability in the Virtual Workplace

It is an understandable tendency to want one-size-fits-all policies and employment handbook provisions in the workplace, but the virtual workplace modality creates a need to re-examine that tendency.  After all, the conditions at play in the virtual workplace involve issues of control and accountability not present when all employees are easily observed and reachable by merely walking the halls.

Multi-Jurisdictional Issues in Today's Remote Workforce

You are an employer located in Columbia, Maryland, with a mobile workforce, which travels to client sites around the state and into the District of Columbia and Pennsylvania.  One of your employees, who regularly works between sites in Montgomery County and the District needs to be out because his child’s school has been closed by order of the county government.  You look to your policies and see that your employee has no more paid vacation leave available, and only one day of sick leave left.  Since your policy limits the use of sick leave to only those categories of leave permitted under Maryland law, you tell the employee that he will need to take a day of unpaid leave, because he is not eligible for paid sick leave. 

Setting Expectations and Minimizing Risk Through Remote Working Agreements

Remote working is commonplace in the workplace today, though some organizations treat this as an informal perk.  If your company allows this flexibility, be sure that you have taken appropriate steps to adopt a formal policy that includes the requirement for execution of a telework agreement between the company and the employee in order to minimize the risk that can accompany this arrangement.  When adopting the policy, ensure that it works for your organization.  There is no one-size-fits-all policy and certainly not every position is suitable for remote working, which needs to be clearly articulated in the policy.  Once the policy is adopted, educate the managers and apply it consistently to avoid claims of discrimination.

Unintended Consequences of Remote Employees

One of your valued employees comes to you with exciting news – her partner has been offered a big promotion, but it requires a move across country.  She would love to continue working for your company and you would hate to have to replace her.  So you both agree on a plan that allows her to continue to work remotely from her new state. Everyone is happy, until you learn about the unintended consequences of having a remote employee.

DOL Raises Salary Level for Exempt Employees

Last week, on March 7, 2019, the U.S. Department of Labor “DOL” announced a notice of proposed rule-making that would increase the salary threshold for employees eligible to collect time and one-half pay for hours worked over forty (40) in a workweek.  Under the terms of the proposed rule-making, exempt employees would now have to earn at least $679 per week or $35,308 per year to be considered exempt under the so-called White Collar Exemption in Section 13(a)(1) of the Fair Labor Standards Act (the “Act”). 

Update on the "Fight for Fifteen"

The Maryland Legislature is planning on making several significant changes in existing labor and employment policies that Maryland employers should be aware of.  One of these is H.B. 166/SB 280, the so-called “Fight for Fifteen.” 

5 Questions Employers Should Ask Every Year (A Webinar)

On January 23, David Stevens and Katelyn Brady presented a webinar addressing the five HR issues that are frequent stumbling blocks for employers seeking to maintain compliance and avoid costly litigation.

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.

The Impact of #MeToo is Deeper Than You Think?

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.

’Tis the Season! Celebrating the Holidays in a #MeToo Era

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.

Maryland Healthy Working Families Act - What Maryland Employers Need to Know Now!

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.

Paid Sick Leave Law Set to Take Effect

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.

Latest nomination expected to boost NLRB’s new agenda

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.

Maryland General Assembly Overrides Governor's Veto: Paid Sick Leave Law To Take Effect in February

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. 

Form I-9 with Revision Date of July 17, 2017 Must be Used as of September 18, 2017

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.  

As political tensions rise, employers need to take care responding to protests

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.

CLIENT ALERT: New I-9 Use Mandated By Jan 21

Clients are reminded that as of January 21, 2017, they must use the new Form I-9 for employment verification purposes.  Failure to use the new form could result in a potential technical violation of the Immigration Reform and Control Act (IRCA), which became law in November 1986.
 
The new form contains a number of additional fields and a set of instructions which, at 15 pages, is more than double that of the prior form.  In addition, USCIS has prepared a Smart Form, which may be accessed online, that should greatly aid in correct and thorough completion of the form.

DOL Takes Another Beating: Court Blocks Persuader Rule

A federal district court has permanently blocked a U.S. Department of Labor (DOL) regulation that would have created new requirements for employers looking to keep unions out of their workplaces.

Maryland Equal Pay Law Will Take Effect October 1

Maryland’s new Equal Pay for Equal Work Act, which takes effect on October 1, will prohibit employers from providing less than favorable employment opportunities to or discriminating against employees by paying different rates based on their sex or gender identity.

New Department of Labor Overtime Regulations

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.

What Do DOL's Final 'Persuader' Rules Mean For Employers?

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.

NLRB Dismisses Petition To Unionize Northwestern Football Players

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.

D.C. Pregnant Workers Fairness Act

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.

New Required Notices for D.C. Employers

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

Check Your Policies - They May be Unlawful

On March 18, 2015, the National Labor Relations Board’s (“NLRB”) General Counsel issued a Memorandum with the intention of providing guidance to employers as to employment policies the NLRB considers unlawful.  This Memo is extensive and covers many policies you likely have in your employee handbook.  Many employers incorrectly believe that the National Labor Relations Act (“the Act”) does not apply to their organization if they do not have a union.  To be clear, unless your organization falls within a few very limited exceptions, you should assume that your business or organization is covered by the Act which covers condominiums, service providers, non-profits and employee-owned businesses.

Hat Fight: NLRB Ruling Against Company Hat Policy Rejected by D.C. Circuit

In World Color Corp. v. NLRB (D.C. Circuit No. 14-1028), the Court addressed a petition by a graphic printing company for review of a decision by the NLRB that the company’s employee hat policy violated the National Labor Relations Act (“the Act”).  The employer’s policy prohibited the wearing of baseball caps other than company caps bearing the company logo.  The National Labor Relations Board (NLRB) determined that the policy violated the Act because it prohibited employees from wearing union caps that bore union insignia (and thereby violated the employees’ rights under the Act). However, the policy also permitted employees to accessorize “in good taste and in accordance with all safety rules.”  The company argued that the NLRB erred in failing to consider the employees’ ability, under the “accessorizing” portion of the policy, to apply union insignia to their company caps, and that, because employees were permitted to accessorize with union insignia, the policy did not violate the Act. 

How Simple is that Simple Retirement Plan, Really?

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. 

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.

Social Media & Employment Law

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.  

Montgomery County's Criminal Background Law Enacted With Significant Changes

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”). 

The "Unpaid" Intern

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.

NLRB Memoranda Encourage Cooperation Between OSHA, WHD and NLRB In Advising Employees of Possible Claims

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.

Baltimore Council Votes To Ban the Box

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.

No paydirt yet: Northwestern players have ground to cover before unionization

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. 

Employer Liability For Sexual Harassment By a Subordinate

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 Law on Accommodations for Pregnant Workers Takes Effect on October 1

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.

Affordable Care Act Requirements for Employers: Although Mandate Delayed, Action Still Required

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. 

Maryland Legislature Creates New Procedure for Employees Pursuing Wage Claims

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. 

Senate Breaks NLRB Logjam

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. 

D.C. Circuit Nixes NLRB Posting Requirement

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.

Employers Now Required to Use Revised Form I-9 When Verifying Employment Eligibility

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. 

Court Order Indefinitely Delays Implementation of NLRB Notice Posting Requirement

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. 

Fourth Circuit Holds That Internal FLSA Complaint Can Support Retaliation Claim

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.

Maryland Legislature Passes Bill Prohibiting Employers from Requesting Social Media Passwords

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?

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.

Court Addresses Interplay Between FMLA and ADA Obligations

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.  

NLRB Adopts Final Rule Implementing Some, But Not All, Proposed Regulations

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. 

NLRB Again Delays Effective Date of Notice Posting Requirement

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. 

Seven Steps to Get Ready for Union Attack

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.

Aggressive NLRB Has Surprises for HR

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.

NLRB Delays Effective Date of Notice Posting Requirement

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.

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. 

NLRB Issues Final Rule Requiring Employers to Post Workplace Notice of Employee Rights

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. 

New Credit Check Restrictions for Maryland Employers Take Effect October 1st

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.

Attention Employers with DC Employees: Final Regulations for Accrued Sick and Safe Leave Act Issued

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.

Social Media in the Workplace

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.

Supreme Court Ruling Against NLRB Results in Remand of Almost 100 NLRB Decisions

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.

When Giving Depositions, Make Sure You Complete The Errata Sheet In A Timely Manner

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.

Economic Stimulus Act - Impact on COBRA Health Continuation Coverage

On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act of 2009, referred to in the press as the "Economic Stimulus Act."  One provision in this Act that has received relatively little publicity is a subsidy for former employees and their dependents who elected, or were offered the opportunity to elect, to continue health insurance coverage following termination of employment.

Employee Free Choice Act

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.

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.

2004 Winter Employment Law Update

This page features links to articles written by Whiteford, Taylor & Preston attorneys that are in the Winter 2004 issue of the Employment Law Update.

National Labor Relations Act -- Unfair Labor Practices: “Look for Work Elsewhere” Comment Found to Be Unlawful

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.

Americans with Disabilities Act: HIV Positive Employee Not Disabled Under ADA

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).

EEO -- Racial Harassment – Employer May Have Failed to Respond to Graffiti Threat

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).

Wage and Hour Law - New DOL Proposal to Revise 'White-Collar' Exemptions

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.

Supreme Court Permits EEOC to Pursue Relief Even When Employee Agrees to Arbitrate Claims

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”).

Americans With Disabilities Act: Employer Need Not Create Permanent Light Duty Position

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.”

Employee Fired for Consulting An Attorney Cannot Sue For Wrongful Discharge

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.

Maryland Wage Payment and Collection Law: Payment of Commission Based on Employee Still Being Employed on Date of Payment Is Struck Down Where Employee Has Met Requirements to Receive Commission

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 . . . .”

Supreme Court Sets Tighter Standards For Employees With Disability Claims

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.

Who is an “Employee” Under the Maryland Wage Payment and Collection 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.

Updated: Maryland Legislature Passes Bill Prohibiting Sexual Orientation Discrimination

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.

Employee Rights Under the Uniformed Services Employment and Reemployment Rights Act

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.

Maryland Employers Now Allowed to Conduct On-Site Drug Testing For Job Applicants

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.

NLRB Approves Employer's Use of Employee Committees

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.

U.S. Supreme Court Holds That RN’s Are Supervisors under the NLRA

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.

Check Your Policies - They May be Unlawful (Answer Sheet)

On March 18, 2015, the National Labor Relations Board’s (“NLRB”) General Counsel issued a Memorandum with the intention of providing guidance to employers as to employment policies the NLRB considers unlawful.  This Memo is extensive and covers many policies you likely have in your employee handbook.  Many employers incorrectly believe that the National Labor Relations Act (“the Act”) does not apply to their organization if they do not have a union.  To be clear, unless your organization falls within a few very limited exceptions, you should assume that your business or organization is covered by the Act which covers condominiums, service providers, non-profits and employee-owned businesses.

Newsletters

Labor & Employment Newsletter - November 2018

’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

Labor & Employment Newsletter - March 2015

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

Proposted Legislation in Maryland Regarding the Definition of Supervisors

DC Metro Area Labor & Employment Newsletter - September 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

Labor & Employment Newsletter - Summer 2013

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

Labor & Employment Newsletter - Spring 2013

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

Labor & Employment Newsletter - Spring 2012

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

Labor & Employment Newsletter - Winter 2012

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

Labor & Employment Newsletter - Fall 2011

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

Labor & Employment Newsletter - September 2010

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"

Labor & Employment Newsletter - Summer 2010

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

Employment Law Update - Fall 2009

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

Employment Law Update - Summer 2009

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

Legislative Update

Employment Law Update - Winter 2009

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 Simulus Act -- Impact on COBRA Health Continuation Coverage: Frequently Asked Questions

Employment Law Update - Summer 2008

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?

Employment Law Update - Spring 2008

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

Employment Law Update - Winter 2008

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

Employment Law Update - Fall 2007

Background Checks and Mistaken Identity

DOL Publishes Final Rule on Labor Certifications

Supreme Court Issues Pay Discrimination Decision

Recent Legislative Developments in Maryland

Employment Law Update - Spring 2007

The Revised 2007 EEO-1 Form: New Racial Designations and Job Categories

Supreme Court to Review "Cat's Paw" Case

Restrictive Convenants: Sometimes They're Not Worth the Pater They're Printed On!

What! Me Worry?? I Have Insurance to Cover that Claim!!

Labor & Employment - Employment Law Update - Fall 2006

Clean-Up on Aisle Four!

Gathering Storm: How Recent Changes at SEIU Will Affect the Local Health Care Industry

DOL Offers Guidance on Personnel Policies Affecting Exempt Employees

Military Service: DOL Issues New USERRA Regulations

Americans With Disabilities Act (ADA): Auto Parts Handler's Tendonitis is not a Disability Under the ADA

Wage and Hours Law: DOL Issues Snow Day Guidance

Summaries of Recent Maryland Employment Cases

Labor and Employment - Employment Law Update - Spring 2006

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

Employment Law Update - Fall 2005

Supreme Court Broadens Age Discrimination Claims

Supreme Court Exempts IRAs From Bankruptcy

National Labor Relations Act - RNs Not Supervisors - Marking NLRB Sample Ballot With an "X" In The "Yes" Box

EEO - Confederate Flag Stickers in the Workplace - National ORigin and Religious Discrimination Claims Fail

USERRA - Reemployment Rights of National Guard / Reserve Members - FMLA Leave

AFL - CIO Membership Levels Dropped Before Defections of Five Unions

Events

Webinar: 5 Questions Employers Should Ask Every Year

This one hour webinar will address five HR issues that are frequent stumbling blocks for employers seeking to maintain compliance and avoid costly litigation, with the last 10 minutes reserved for Q & A. 

Webinar: Practical Steps for Compliance with Maryland’s New Sick Leave Law

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.

News

U.S. News Awards Top-Tier Rankings to 46 Whiteford Practices, Including 18 Nationally

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.

Three Whiteford Lawyers Recognized as Benchmark Labor & Employment Stars

Benchmark Litigation has announced that three lawyers from Whiteford, Taylor & Preston have been named to the First Benchmark Litigation Labor & Employment Annual Guide as Benchmark Labor & Employment Stars: Steven Bers, Jennifer Jackman and Tiffany Releford.  The firm is “simply top-notch,” states Benchmark Litigation, and clients flock to the firm for its excellence in litigation skills and experience.”

Practical Steps for Compliance with Maryland’s New Sick Leave Law (A Webinar)

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.

 

Whiteford, Taylor & Preston and 29 Lawyers Honored by Chambers and Partners

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. 

DOL Final Regulations Affecting Exempt Employees Go Into Effect On December 1st

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.

2008 Employment Law Update Seminar

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.

Workshop Schedule

2007 Employment Law Update Seminar

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

36 Whiteford, Taylor & Preston Attorneys Named Maryland Super Lawyers

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.

Kevin McCormick Elected President of the Board of Meals on Wheels

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 - May 9th

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.

CONFERENCE PROGRAM

Two Whiteford, Taylor & Preston Partners Named As Leading Labor Lawyers

January 4, 2006 - Baltimore, MD - Whiteford, Taylor & Preston (WTP) is pleased to announce that James P. Gillece and Jeanne M. Phelan have been named as leading practitioners in the field of Labor and Employment Law by Who's Who Legal.

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.