Wednesday, December 31, 2014

REMINDER: New Year, New Minimum Wages in Maryland and D.C.

Take Away:  Effective January 1, 2015, Maryland’s minimum wages rises from $7.25/hr to $8.00/hr. On July 1, 2015, Washington, D.C.’s minimum wages rises to $10.50/hr.

Tuesday, December 30, 2014

DC Enacts Workplace Protections for Reproductive Health Decisions

By former Associate Jack Blum

On December 19, 2014, the District of Columbia City Council unanimously approved the Reproductive Health Non-Discrimination Amendment Act of 2014 (the “Act”).  The bill, which is subject to the requirements of mayoral approval and congressional review, would expand the prohibition in the District of Columbia Human Rights Act (“DCHRA”) against employment discrimination based on sex (i.e., gender) to also include “reproductive health decisions.”

Montgomery County Employers Must Comply with New Ban the Box Law by Jan. 1

Montgomery County’s new “ban the box” law goes into effect on January 1, 2015, and does far more than simply banning the box.  The law, which was enacted by the Montgomery County Council on October 28, 2014, will place significant limitations on how most employers in the County may inquire about, and use, information related to an applicant’s criminal history.  Montgomery County employers would be well advised to review their own policies on the use of criminal histories and to train and educate those employees who are involved in the hiring and promotion processes in order to ensure full compliance with the law.  

Monday, December 29, 2014

NLRB Files Complaints against McDonalds and Franchisees as Joint Employers

Take Away:  The NLRB may be in the process of re-writing the rules to make it easier to find a franchisor liable as a joint employer with a franchisee.

Wednesday, December 10, 2014

Supreme Court Holds Anti-Theft Screening Non-Compensable Under FLSA

On December 9, 2014, the Supreme Court ruled unanimously in Integrity Staffing Solutions v. Busk, 134 S.Ct. 1490, 188 L. Ed. 2d 374 (2014), that workers do not have to be paid overtime for time their employer required them to spend at the end of their shifts to go through anti-theft screenings, rejecting the plaintiffs’ assertion that they were entitled to be paid under the Fair Labor Standards Act and Nevada law.  In a case brought by employees of a staffing agency that provided warehouse workers to Amazon, the Court reversed a contrary decision by the Ninth Circuit.

Wednesday, December 3, 2014

You Can Smoke Weed In DC! And Your Employer Can Fire You For It!

Take Away:  The District of Columbia may let you possess marijuana, but the federal government still considers it illegal, and employers can still fire you for smoking it.

Thursday, October 16, 2014

Why Employers Should Be Diligent with Employee Classifications

Does an employer have to pay workers’ compensation benefits to an independent contractor injured on the job?

This is a bit of a trick question.  The short answer is no.  If a worker is correctly classified as an independent contractor, the worker is not a “covered employee” under the Maryland Workers’ Compensation Act and the employer is not liable for the worker’s on-the-job injuries.  However, as we often blog, the classification of independent contractors is tricky business and if the employer gets it wrong and misclassifies the worker, it may be responsible for the worker’s injuries under at least two different scenarios according to a recent decision by the Maryland Court of Appeals in Elms v. Renewal by Anderson.  

Thursday, October 9, 2014

Be Careful What You Wish For – Maryland’s Highest Court Finds That “For Cause” Provision Trumps At-Will Presumption

The Court of Appeals of Maryland, in Spacesaver Systems, Inc. v. Adam, has held that an employment agreement which contained a “for cause” termination provision, no durational provision, and no “at-will” provision, constitutes a “continuous for-cause” contract.  In doing so, the Court of Appeals embraced, apparently for the first time, the idea of a continuous for-cause employment contract, distinct from a lifetime contract.  Lifetime contracts are required to be established by unequivocal evidence and supported by special consideration, showing that the employer and employee bargained for the lifetime agreement.  In essence, this new form of continuous for-cause contract means that an employer could, unintentionally, be stuck with an employee for his or her lifetime even though it did not bargain for that or receive any special consideration.  

A Reminder to Federal Contractors: The Whistleblower Protections Many Employers May Not Be Considering

Arising out of an uncommon source, for nearly two years, employees of most federal contractors and grantees have had additional whistleblower protections with regard to certain disclosures and employers need to remember these protections when considering adverse personnel actions.  The 2013 National Defense Authorization Act (NDAA) was signed into law.  Although its name does not conjure up visions of employee protections, the law actually provides for some of the broadest and strongest whistleblower protections to employees of most federal government contractors and grantees.

Employers' Obligations to Accomodate Religious Beliefs

Supreme Court Poised to Address Religious Discrimination in the Case of EEOC v. Abercrombie & Fitch Stores, Inc.

In EEOC v. Abercrombie & Fitch Stores, Inc., the Supreme Court is set to answer the question of whether an employee or applicant must expressly inform an employer of his or her religious beliefs in order to sustain a claim that the employer has discriminated by failing to accommodate the belief.

Wednesday, July 30, 2014

Managing Pregnant Employees:

EEOC Offers New Guidance on the Treatment of Pregnant Workers

Regardless of industry, size, or geography most employers will, at some point, be faced with the issue of how to handle a pregnant employee.  On July 14, 2014, the EEOC issued new enforcement guidance on pregnancy discrimination.  This is the first new guidance that the EEOC has published on this issue in over 30 years and has important implications for employers and employees alike.

Wednesday, July 16, 2014

D.C. Enacts New “Ban the Box” Legislation

By former Associate Jack Blum

On July 14, 2014, the District of Columbia took another step towards limiting an employer's ability to inquire into the criminal history of job applicants as part of the nationwide “ban the box” movement.  The D.C. City Council unanimously passed the Fair Criminal Record Screening Amendment Act of 2014, which will now proceed to Mayor Vincent Gray and then the United States Congress for review.  Mayor Gray indicated to the Council on June 3, 2014 that he supported the measure, so its final enactment appears likely.

Tuesday, July 8, 2014

Supreme Court Agrees to Hear Key Employment Cases:

What This Will Mean for Employers

The Supreme Court agreed to hear a controversial case next year on the EEOC’s obligation to conciliate or negotiate with employers prior to the EEOC filing suit. While most EEOC charges result in the individuals seeking private counsel to pursue their claims, if the EEOC itself seeks to sue your company, Title VII of the Civil Rights Act of 1964 requires the EEOC to conciliate in good faith before bringing suit.  Over the years, both before and during the Obama Administration, the EEOC’s view of conciliation too often has essentially been we tell you what we are willing to settle for and you can accept or reject our settlement proposal as is.  The lower courts stand divided on whether the EEOC’s approach meets the statutory standard. 

Monday, July 7, 2014

Supreme Court Term Ends with Key Employment Decisions:

What They Mean for Employers

Burwell v. Hobby Lobby Stores Inc[JS1] .

On its last day of the term, the Supreme Court for the first time ruled, 5-4, that privately held corporations can have religious beliefs and concluded that the government cannot make all private employers cover the cost of contraceptive services. This decision undercuts a provision of the Affordable Care Act (“ACA”) that requires that certain preventive services, including birth control, be included in all health insurance plans.

Friday, June 20, 2014

Obama to Sign Executive Order Prohibiting LGBT Workplace Discrimination

It remains legal in many states to discriminate against employees because of their sexual orientation or gender identity – something that President Obama hopes to change.  On Monday, the White House announced that Obama will issue an executive order aimed at stopping employers from discriminating against such workers on the basis of their sexual orientation or gender identity.  Specifically, this order will prohibit workplace discrimination against lesbian, gay, bisexual, and transgender (LGBT) employees of federal contractors.

DOL Proposes Extending Leave Rights for Same-Sex Couples?

On June 20, 2014, the Department of Labor (“DOL”) proposed an amendment to its Family and Medical Leave Act (“FMLA”) regulations that will extend the FMLA’s spousal benefits to married same-sex couples living in the thirty-two states that do not currently recognize same-sex marriages.  While the U.S. Supreme Court’s decision in U.S. v. Windsor already eliminated the federal government’s non-recognition of same-sex marriages under the Defense of Marriage Act (“DOMA”), the DOL’s proposed amendment extends the availability of FMLA spousal benefits to same-sex couples by making the validity of a marriage for FMLA purposes dependent on the law of the state where the marriage occurred, not where the couple currently resides.

Monday, March 17, 2014

DOL to Revise Rules on Who Is Exempt from Overtime Pay

Take-away: Classifying employees as exempt under the FLSA may be getting more difficult and more expensive.

Can I classify this employee as exempt from the Fair Labor Standards Act (FLSA) overtime pay requirements? It’s a question that most employers have grappled with at some point. In a March 13, 2014, Presidential Memorandum to the Secretary of Labor, President Obama took the first steps towards new regulation which could change an employer’s answer to this question.

Tuesday, March 11, 2014

Employers required to offer retirement plans?

Maryland businesses take note – the Maryland Senate and House are each considering bills which, if passed, would require businesses employing 5 or more employees to offer a qualified retirement plan (read: 401(k) or IRA) or join a state-created pool retirement fund. If the law takes effect, Maryland will be the first state in the nation to impose mandated retirement savings.

Maryland Moves Toward Minimum Wage Increase

The Maryland legislature has moved one step closer towards increasing the state’s minimum wage - an effort which has split the business community, drawing support from some and opposition from others.

Thursday, March 6, 2014

Liar, Liar, (Under)Pants on Fire

Adult store sued after forcing employees to undergo polygraph examination

As recently reported by the Orlando Sentinel an adult store has been sued by a former employee after the store’s owner required all sales staff to submit to a polygraph examination. According to the lawsuit, the store’s president was seeking to resolve the loss of several thousands of dollars of merchandise. In the lawsuit, the former employee alleges that she was terminated as a result of failing the polygraph examination.

Wednesday, March 5, 2014

Confidentiality in Settlement Agreements Not Just Show

As recently reported by CNN the former head of a private school lost an $80,000 discrimination settlement by simply revealing the settlement terms to his daughter. The settlement agreement contained a common confidentiality provision under which the employee and his spouse could only discuss the terms of the agreement with the employee’s attorneys or other professional advisors.

Wednesday, February 19, 2014

EEOC sues over typical severance provisions

Employers Beware: EEOC Takes Aim at Severance Agreements and Seeks Right to File Charges for more than 650 Employees Who Signed Releases and received Severance Payments.

Take Away:  The EEOC’s most recent challenge to several typical provisions in severance agreements should cause employers to review their own severance agreements and consider making changes to avoid EEOC scrutiny and challenges.

Wednesday, February 12, 2014

IRS Delays ACA Employer Mandate for Some Employers

On February 10, 2014, the IRS and Department of Treasury issued its much anticipated final regulations on the implementation of the ACA’s employer shared responsibility provision (a.k.a. the “employer mandate”). To the surprise of most onlookers and the relief of many employers, the regulations include another delay of the mandate for employers with under 100 employees.

Tuesday, February 4, 2014

Temporary Impairment a Disability under ADA

Take-away:  Temporary but sufficiently severe impairments, whether caused by injury or permanent conditions, should be considered disabilities for purposes of the ADA and for triggering the employer’s obligation to engage in the interactive process.

2014 High Risks for Employers – Fitness Goals

As the New Year gets underway and we make New Year’s resolutions, we thought it would be useful to highlight the top five issues that we see as high risk for employers in 2014 as a result of government scrutiny and enforcement priorities.  You should be aware of them as you identify your priority projects for the year.