Tuesday, December 18, 2012

D.C. Council Rejects Bill Prohibiting Discrimination Based on Arrest Conviction Records



In a move supported by many local business leaders, the District of Columbia City Council on December 4, 2012, rejected a bill to amend the D.C. Human Rights Act to prohibit discrimination in employment, housing and education based on arrest and conviction records. Among other things, the bill (available here), would have prohibited employers from considering an applicant or employee’s arrest or conviction record unless it was directly relevant to the job sought. In rejecting this bill, the council approved a more moderate measure that will encourage employers to hire individuals with criminal records and provide certain ex-offenders with certificates of good standing (available here).

Wednesday, December 12, 2012

Independent Contractors Part 2


This is the second Webinar in a series on Independent Contractors which was held on December 11, 2012 and it focused on best practices to protect your business when choosing to use independent contractors. The program featured a look at the business and type of position that needs to be filled, how to determine when it is appropriate to use an independent contractor and methods & requirements for drafting enforceable independent contractor agreements.

Friday, December 7, 2012

Independent Contractors Part I

This is the first part of a two-part series on Independent Contractors. Held on December 4, 2012, the webinar discussed the pitfalls and minefields of classifying a worker as an independent contractor, what to watch out for when determining employment classifications, and how to deal with issues related to workers’ compensation, unemployment insurance, wage and hours, benefits and audits.

 

Tuesday, December 4, 2012

Supervisors Held Personally Liable For Firing Employees



In a decision that is certain to raise hairs on the back of the neck of any boss, the Virginia Supreme Court concluded for the first time that, under certain circumstances, a supervisor or manager can be held personally liable for wrongfully firing an employee. The Court’s decision in VanBuren v. Grubb (full opinion here) is one of the first in the Commonwealth’s legal history to open the door to claims against individual managers and supervisors and has the potential to change the way in which Virginia plaintiffs approach and present their claims.

Tuesday, November 27, 2012

Supreme Court Considers Who is a Supervisor – Title VII



Yesterday, the Supreme Court heard oral arguments in a case that has drawn the attention of employers and lawyers alike. The question posed to the Court in Vance v. Ball State University (petition for a writ of certiori available here), focuses on when an employee is considered a supervisor under Title VII of the Civil Rights Act. The classification of an employee as a supervisor under Title VII is particularly important in light of the fact that the Supreme Court has held that an employer may be liable for the Title VII violations of its supervisors whether or not it was aware of such violations because of the inherent authority and power supervisors usually have. However the case is decided, it is likely to have a significant impact on employer liability for the discriminatory acts of an employee.

Friday, October 26, 2012

Athlete’s Workers’ Comp Case Affects MD Employers


Serious pro football fans may remember Darnerien McCants as a backup wide receiver who scored eight touchdowns while making 58 catches for 774 yards in four seasons with the NFL’s Washington Redskins and Philadelphia Eagles. Those who more closely follow Maryland employment law, on the other hand, now know McCants as the catalyst for an expansion in the scope of Maryland worker’s compensation coverage that multi-state employers need to understand.

Monday, October 15, 2012

“Confidential” Internal Investigations: Beware


In a recent decision, the National Labor Relations Board (NLRB or Board) concluded that the common practice among employers of asking all employees who file a complaint or are interviewed as a witness not to discuss ongoing internal investigations violates the National Labor Relations Act (NLRA). As we have discussed in other blog posts, the NLRB has increasingly been reaching beyond unionized workplaces, issuing decisions with broad implications for employers of all types. The Board’s July 30, 2012 decision in Banner Health Systems (available here) continues down this path, presenting an unprecedented conclusion about Section 7 rights that is sure to impact how most employers handle internal investigations.

First NLRB Ruling on Social Media and Protected Activity



On September 7, 2012, the National Labor Relations Board (NLRB) issued a decision in the case of Costco Wholesalers Corporation, ruling that the provision in Costco’s employee handbook that subjected employees to discipline for inappropriate electronic posts violated Section 7 of the National Labor Relations Act (NLRA).

Tuesday, September 11, 2012

MD Courts Moving Toward Offers of Judgment?


Beyond the issues that we just raised in Barufaldi, the decision may also have important implications for employers trying to decide whether and when to make a settlement offer—and for how much.

MD Appeals Court Addresses Wage Payment, Attorney Fees


A recent case involving the award of attorney fees for claims brought under the Maryland Wage Payment and Collection Law (WPCL)-- captioned Barufaldi v. Ocean City, Maryland Chamber of Commerce and the opinion for which can be found here --bears close examination. The Maryland Court of Special Appeals reiterated that while attorneys’ fees are not automatic, they should be liberally awarded to employees, and that factors such as the degree of the employer’s bad faith and its ability to pay are not relevant. The WPCL is a favorite of attorneys representing employees and one that all employers should know about. Often the projected attorneys’ fees are much larger than the amount of wages due in WPCL cases. In other words, the tail wags the dog.

Employers’ Social Media “Friends” May Be Trade Secrets


For the first time, a federal court has concluded that an employer’s MySpace “friends” list meets the initial requirements to be considered a trade secret. The Colorado District Court’s decision in Christou v. Beatport, LLC (full opinion here), adds another consideration for employers attempting to navigate the rapidly expanding intersection of employment law and social networking. This case is of particular local relevance because the Colorado statute at issue is nearly identical to its counterparts in Maryland, Virginia and the District of Columbia since all four jurisdictions have adopted the same Uniform Trade Secrets Act.

Tuesday, June 26, 2012

Social Media in the Workplace Webinar Materials Now Available



In case you missed our webinar on social media in the workplace, feel free to view the recording below and please also find copies of the slides available for download:

Wednesday, June 6, 2012

NLRB Issues New Social Media, Networking Report


On May 30, National Labor Relations Board (NLRB) General Counsel Lafe E. Solomon issued his third report summarizing seven social media and networking cases, focusing solely on the social media policies governing employees.

Tuesday, May 22, 2012

Employers Beware: EEOC Limits Use of Criminal Records

On April 25, 2012, the EEOC issued updated Enforcement Guidance on employers’ use of criminal background checks to screen applicants. Citing statistics showing that blanket prohibitions on hiring those with criminal records have a disproportionate impact on minorities, the EEOC expanded the circumstances where a criminal background check policy or practice may run afoul of Title VII – creating greater risk of liability for employers.

Facebook "Likes" May Not Earn NLRA Protection

In late April of 2012, the United States District Court for the Eastern District of Virginia ruled on a case involving claims of retaliation brought by two former deputies against the Sheriff of the City of Hampton, Va. (the Bland v. Roberts opinion can be found here). The deputies alleged that their First Amendment rights were violated and they were unlawfully retaliated against when they were terminated for supporting the Sheriff’s opponent in a recent election. Each former deputy claimed to have made protected “statements” on the opponent’s Facebook page.

No Cost Webinar: "Social Media in The Work Place" on June 6, 2012

Hope B. Eastman, James R. Hammerschmidt and Ethan L. Don of Paley Rothman's Employment Law practice group will be hosting a no-cost webinar on “Social Media in the Workplace” on Wednesday, June 6 from 1:00pm to 1:45pm. Reserve your webinar seat today

Tuesday, April 17, 2012

California Employers Need Not Police Meal Breaks

On April 12, 2012, the California Supreme Court issued a long-awaited ruling in the class action case of Brinker Restaurant Corp. v. Superior Court[AU1] Brinker, which had been pending since 2008 and triggered more than twenty six amicus briefs from interested organizations on both sides, centered on a number of issues relating to California state requirements for non-exempt employee meal and rest breaks.

Kelly Drye Settles EEOC Age Bias Suit, Promises Changes

A long simmering age discrimination battle between the EEOC and Kelly Drye, a law firm with more than 300 lawyers and 130 partners, has been resolved[AU1]  by a consent decree awarding more than $500,000 in damages to an 81-year old partner.  This settlement follows the EEOC’s $27.5 million settlement with Sidley Austin LLP in 2008.

D.C. Federal Court enjoins NLRB Poster Rule

The Court of Appeals for the DC Circuit today enjoined the NLRB from putting its controversial union rights poster rule in place on April 30, 2012. The National Association of Manufacturers (NAM) had appealed the January 2012 ruling of the district court upholding the rule. The NAM sought an emergency injunction from the Court of Appeals to delay the rule pending the outcome of the appeal. The court granted the request.

Wednesday, April 11, 2012

IRS Initiative for Reclassification of Contractors

As part of the IRS Fresh Start initiative to help employers obtain a “fresh start” with their tax obligations, the agency has outlined a new program for employers to create a “low cost” resolution to prior worker classification issues by voluntarily reclassifying their employees.

In September of 2011, the IRS announced its Voluntary Classification Settlement Program (VCSP), which affords employers the opportunity to achieve compliance by making a “minimal” payment to cover past payroll tax obligations instead of waiting for an IRS audit. The complete announcement can be found at Announcement 2011-64and you can also read the IRS news release (IR-2011-95).

D.C. Bans Hiring Discrimination Against Unemployed

On March 6, 2012, the District of Columbia passed the Unemployment Antidiscrimination Act of 2012 (“UAA”), making it illegal for an employer or employment agency to discriminate based on a potential employee’s status as unemployed.

Password Protected: No Passwords for Employers

The Maryland General Assembly, nearly unanimously, passed the first legislation in the nation banning employers from requesting or requiring that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service. After the Governor signs the Bill, the law will go into effect on October 1, 2012. A copy of the legislation can be found here.

Under the new law, employers will be flatly prohibited from asking applicants for user names or passwords to any personal websites, such as Facebook, LinkedIn, or Twitter. Employers will also be prohibited from failing or refusing to hire an applicant who does not provide that information. There are no exceptions or exclusions for certain employers. There is no size or revenue limitation and no carve out for public employers.

Monday, March 26, 2012

Maryland High Court Dodges Employment Law Bullet

This post is about a case we simply can’t resist reporting on. This is, after all, a blog that analyzes and provides insight on developments in Maryland employment issues. Thus, when our State’s highest court, the Maryland Court of Appeals, is sued as a defendant for violating the FMLA and the case goes all the way up to the U.S. Supreme Court, well, that’s news! Thankfully, for the taxpayers of Maryland, the Court of Appeals emerged victorious.

In Coleman v. Court of Appeals of Maryland, the Supreme Court held that a State cannot be sued for damages by an employee under the Family Medical Leave Act’s (“FMLA”) self-care provisions. While this decision doesn’t relieve the burden facing private-sector employers under the FMLA, and is based more on the law of State sovereignty than employment law, it nonetheless offers an interesting look at how the courts responsible for applying the law can sometimes (arguably) run afoul of it.

Wednesday, March 21, 2012

Discriminating in Severance Pay Will Cost You

For most employers, the object of offering severance pay in exchange for a release is to prevent the former employee from suing and to “buy” peace. When the County of Chesterfield, Virginia, made a severance offer to one of its long-time, female employees, however, it created a Title VII discrimination lawsuit that would not otherwise have existed. That’s a major oops! 

Karla Gerner began working for Chesterfield in 1983. In 2009, after having served the previous 12 years as the Director of Human Resources Management (as it turns out, Gerner clearly knew her stuff), she was informed that, due to re-organization, her position was being eliminated. Gerner was told that if she voluntarily resigned and waived any cause of action against Chesterfield, she would receive severance in the form of three months pay and health benefits. There ensued one problem for Chesterfield: Gerner said “no thanks, see you in court.” She claimed that Chesterfield had not offered her the same “sweetheart” severance package it made available to male employees with similar circumstance, some of whom were being kept on the payroll for up to 6 months with salary and benefits. When she refused her offer, Chesterfield fired her retroactively.

Train your Employees or Risk Trial on Harassment Claim

In Dulaney v. Packaging Corp. of America, the Court of Appeals for the Fourth Circuit recently reversed summary judgment entered in favor of an employer in a suit alleging gender discrimination and sexual harassment under Title VII of the Civil Rights Act of 1964, and similar state laws. The appellate court found that questions of fact existed regarding (1) whether the Packaging Corp. of America (PCA) took a tangible employment action against its employee, Dulaney, and (2) whether there was a sufficient nexus between Dulaney’s harassment and her termination to make the termination actionable. Essentially, PCA’s motion for summary judgment was undone by easily correctable policy and training issues.

Among other things, Dulaney alleged submission, or quid pro quo, sexual harassment, whereby in order to keep her job, or to avoid loss of pay, she was required to engage in sexual acts with her nominal supervisor. The nominal supervisor was a co-worker who did not directly supervise Dulaney, but was given additional authority by PCA, including the ability to assign work to other employees, to assess points against them under PCA’s progressive discipline policy, and to send employees home early without pay.

Sunday, March 18, 2012

Trangender Discrimination Protection Expands in Maryland

Add Baltimore County to the growing list of Maryland counties protecting transgender people from discrimination in the workplace, joining Baltimore City and Howard and Montgomery counties.  The Baltimore County Council approved hotly debated legislation on Tuesday, February 21, 2012, that prohibits discrimination on the basis of gender identity and expression and on sexual orientation in employment, housing, public accommodations and financing.  Other local jurisdictions in Maryland that have anti-discrimination laws such as Prince George's County have not yet addressed the issue.  The State of Maryland Human Rights Act protects employees based on sexual orientation but has not yet added gender identity to its list of protected classes.

While the federal courts grapple with the question of whether transgender discrimination is sex discrimination under Title VII, the federal law which prohibits discrimination in the workplace based on sex, many local jurisdictions like Baltimore County have taken the more direct and expedient legislative approach.  According to the Human Rights Campaign more that 160 counties and cities as well as 16 states and Washington, D.C. have transgender anti-discrimination laws.

How To Protect your Company from Harassment Claims

Perhaps too often we bring you news of situations gone awry in the workplace. In this instance, we present a template that demonstrates how employers can avoid costly litigation. In Crawford v. BNSF Railway, Co., a federal appellate court recently affirmed the entry of summary judgment in favor of an employer asserting the Faragher-Ellerth affirmative defense.

Wednesday, February 29, 2012

DOL Issues Military Family Leave Rules

In a notice published on February 15th in the Federal Register, the Department of Labor (DOL) finally issued proposed regulations to implement the 2009 statutory amendments to the Family and Medical Leave Act (FMLA). A number of the 2009 requirements are already in effect, but the DOL regulations both confirm and expand some of them. Employer policies need to be reviewed now, although some changes will not be mandatory until the final regulations are implemented.

In recent years, Congress has made changes several times to the military service portion of the FMLA. The intent of the changes was to expand the protections for those who serve or served in the military and their families. The original amendments to the FMLA provided for military caregiver leave and leave for families dealing with various exigencies that arose in connection with a family member’s deployment. The most recent statutory changes included (1) extending FMLA military caregiver leave to care for veterans who were honorably discharged in the last five years, in addition to current service members, and (2) expanding the “qualifying exigency” leave provisions to cover members of the Regular Armed Forces as well as the Reserves and National Guard, but only in situations in which members are deployed to a foreign country (i.e., international waters and areas outside of the United States, D.C. or any territory or possession of the U.S.). It’s interesting to note that the five-year limitation could exclude veterans of the War in Afghanistan and Operation Iraqi Freedom.

Thursday, February 16, 2012

Arbitration Agreements, Employee Handbooks: Bad Mix

So, you’ve heard that arbitration agreements are the way to go. You’ve read or been told that arbitration is less expensive than litigating discrimination and other employee claims in court, and that it avoids the risk of a runaway jury verdict in favor of your employee. Just slip the agreement into your company’s employee handbook and you’re good to go.

Not so fast … and not so good. In fact, you’re probably wasting the paper the agreement is written on – and ruining an otherwise perfectly good handbook.

NLRB Delays Union Organizing Rights Posting Rule

Employers that have been gearing up to meet the January 31, deadline for posting an National Labor Relations Board (NLRB) poster notifying employees of their right to unionize, no longer need to rush. The NLRB has for the second time delayed the implementation deadline; posters need not go up before April 30, 2012.


The NLRB initially issued a Final Rule requiring most private-sector employers, both unionized and non-unionized, to post this poster in their workplaces by November 11, 2011. This controversial rule was challenged in federal court in suits brought by the U.S. Chamber of Commerce and the National Association of Manufacturers. As a result, the NLRB first postponed the date until January 31. Now, at the request of the judge in one of the cases, the NLRB has agreed to defer the posting requirement until April 30, 2012.