Maryland Employment Law

What amount of unemployment tax does a Maryland Employer pay for each employee in a year?

2012-05-09T10:53:00.000-05:00

$187-$1,147 (in 2012). The range is because an employer's tax rate is based on its claims history over a period of three years. The lowest rate is 2.2%; the highest rate is 13.5%. Employers are only taxed on each employees first $8,500 in wages. Overall rates are likely to be lowered in 2013. Even at the very highest end, the total tax per week is under $25.

I have represented employees at several recent unemployment hearings. It always surprises me how personally some employers take claims for uninsurance benefits. Most such claims have little affect on the employer's experience rating and its bottom line.

How Much Does an Entry-Level Maryland Wage and Hour Investigator Make?

2012-05-04T10:13:00.002-05:00

$28,434 - $44,520.

There are three ways to enforce the Maryland Wage Payment and Collection Law, the Law that allows Maryland employees to recover earned but unpaid wages. The three ways are:

By filing a civil lawsuit;
By filing a criminal complaint for a willful violation (I have never seen this done successfully); and
By filing a claim with the Maryland Department of Labor (the "DLLR"). The DLLR may assign an investigator to investigate your claim. As mentioned, the DLLR currently is hiring an investigator and is offering a salary of $28,434 to $44,520.

Pending Law Will Ban Employer Facebook Password Queries

2012-04-30T12:54:00.000-05:00

My take on the pending Maryland Law (waiting for the Governor's signature) banning employer requests for social media passwords:

“Fishing expeditions into an employee’s private life are both bad form and an invitation for discrimination and breach of privacy claims,” Rubin says. “The real question to me, regardless of liability, is do you want to work for an employer who wants to snoop through your private information and does not trust you simply to provide it yourself?”

(I apologize for the obvious horn toot and the bad picture).

Q: What amount of fines has Maryland collected under the Workplace Fraud Act of 2009?

2012-04-26T12:07:00.000-05:00

A: Zero.

I have written about the Maryland Workplace Fraud Act of 2009 in the past. The law was subject to intense disagreement between the Maryland Department of Labor and the Maryland Chamber of Commerce. The Law grants to the Maryland Department of Labor the authority to investigate the misclassification of employees as independent contractors in the construction and landscaping industries. The Act allows an employer who misclassifies an employee but does not do so knowingly to come into compliance within 45 days without penalty. Employers who "knowingly" misclassify employees, however, may be subject to a penalty of up to $5,000 per misclassified employee.

A recent fiscal note to an amendment to the Act states the following about its enforcement:

As of December 2011, DLLR’s Task Force on Workplace Fraud had conducted 660 investigations under the Workplace Fraud Act, and issued 12 citations, which translates into a 98% compliance rate. The task force collected $33,000 in civil fines from employers for failing to provide employment records in a timely fashion, but it has not assessed fines for misclassification because the cited employers have either come into compliance or have their cases still pending.

New Maryland Law Protects Unemployment Benefits for Victims of Domestic Violence

2012-04-26T10:57:00.001-05:00

The Maryland General Assembly passed a law, effective October 1, 2012, that will protect victims of domestic violence. The law states that an individual is eligible for unemployment benefits if it is determined that the individual voluntarily left employment because he or she or his or her spouse, child, or parent was a victim of domestic violence. The individual must (1) reasonably believe that the individual's continued employment would jeopardize the safety of the individual or the individual's family; and (2) provide documentation substantiating the domestic violence. The law's fiscal note give a no nonsense explanation of the sources of funds for unemployment benefits.

Attorney Disbarred for Conduct Related to Her Handling of Employment Law Claim

2012-02-22T17:36:00.003-05:00

As follow up on my last post on hiring an employment lawyer, here is a decision disbarring a Maryland attorney in part related to her handling of an employment law case. While this attorney may (or may not) have been adept at bankruptcy law, it appears she was not so skilled when it came to employment law.

Hiring An Employment Attorney

2012-02-17T14:01:00.000-05:00

If you are searching for an employment attorney, you most likely have come across lawyer marketing material. These materials include pay-per-click ads, videos, testimonials, and websites. The message of these ads usually is some variation of: sue your former employer using our law firm because it is the most aggressive, knowledgeable, and experienced in the area.

But this message is at odds with the advice most good employment lawyers give their potential clients facing litigation: there are risks and uncertainty ahead; the legitimate grounds for employment law claims are narrow; the law is complex; and the system is, at times, unpredictable. Even when a client has a good claim, he or she will fighting an employer that likely has greater resources than the client.

A potential client should look beyond the lawyer marketing messages. He or she should seek out the best possible lawyer for the situation. A potential client should do the research. In outline form below, I set forth some tangible and intangible ways a potential client can do just that.

Tangibles

Is the lawyer licensed? In Maryland check here.
Has the lawyer been disciplined? In Maryland check here.
How long has the lawyer been practicing?
Have clients posted public reviews? Avvo is a good place to look for answers.
How many cases has the lawyer filed and has he or she taken any to verdict and judgment? Though the records can be difficult to decipher, Maryland State Court Case docket information and Federal Court case information (registration and fees required) are available.
Does the lawyer really focus his or her practice on employment law?

Intangibles

Meet with the potential lawyer in person if possible.
Is the lawyer (not just the staff) easy to reach by phone and electronic mail?
Does the lawyer appear worthy of your trust?
Is the lawyer willing to give you examples of his or her past experience?
Is the lawyer willing to give you an estimate of the costs going forward?
Expect to pay for good representation. Seek out attorneys who are willing to take a flexible approach to billing arrangements.
Written retainer agreements are a must.

Baltimore Business Journal Article on Non-compete Agreements (Subscription Required)

2011-12-13T05:48:00.000-05:00

The Baltimore Business Journal recently published a pro-non-compete piece directed at small businesses. No surprise there: the BBJ is a business oriented publication. The reporter, Jack Lambert, called me for the employee perspective on non-competes. Here is the part of the interview that made it into the article:

When drafting non-compete contracts, employers should consider how great of a burden to put on their employees, said Jim Rubin, a principal of the Rubin Employment law Firm in Rockville. He said some businesses include jury waivers. Those are clauses that dictate where the case can be litigated. They also include requirements that employees pay the company's legal fees if they lose the case."All sorts of provisions are put in there that are really unfair," said Rubin, who represents employees in non-compete contract matters.

I wrote about unfair non-compete contract provisions in my last post.

What to look for (and avoid) in a Maryland Non-Compete Agreement

2011-10-31T08:45:00.000-05:00

Employers often use their economic leverage to force one-sided non-compete agreements on employees. Below is a list of the top 5 unfavorable contract terms I look for when I review non-compete agreements.

1. One-sided attorney fee-shifting. In a normal breach of contract lawsuit, each side pays its own fees. Employers often get around this rule by including in a non-compete agreement, a clause that states the employee will pay for the employer's attorneys fees if the employer is successful in enforcing the agreement.

2. Over-broad restrictions on working. An Employer can only enforce non-compete agreement against a narrow class of employees and only when it can state a legally protectable interest. Employers nevertheless often define competition so broadly that, if enforced, the employer could not work in an entire industry (even if the employee is not competing).

3. Liquidated damages. It is often very difficult to prove damages when an employee is accused of violating a non-compete agreement. Employers sometimes attempt do away with the necessity of proving actual damages by stating that amount of liquidated damages is presumed. A Maryland Court decision suggests that liquidated damages provision are invalid in most situations involving non-compete agreements.

4. Court Selection and Choice of Law. Parties to a contact are generally allowed to choose the Court that will hear their dispute and the law that applies to those disputes. Employers often use their leverage to pick the Court and the Law believed to be the most favorable to them.

5. Jury-Waivers and Arbitration Clauses. In non-compete litigation, employers generally prefer to be in front of judges (not juries). As such, employers often use their leverage to make employees waive their right to a jury or require that all disputes be resolved in arbitration (and not Court).

Here are a few articles that discuss ways to combat one-sided contract terms:

What to do if you are threatened with a non-compete lawsuit.

Maryland Non-Competes: Things to Consider Before You Sign One.

Q: Can you leverage your way out a Maryland Non-Compete? A: Maybe.

A Non-compete Success Story.

Arbitration of Employment Disputes in Maryland

2011-10-27T14:35:00.000-05:00

I am pursuing more and more employment law cases in arbitration right now than I ever have in my career. Arbitration is an alternative to Court. In arbitration, the parties "choose" to have their disputes heard by an arbitrator (often a retired Judge or an experienced lawyer), rather than a judge or jury.

I am certain that my personal experience of an uptick in arbitration is common among employment lawyers. Several Maryland and U.S. Supreme Court decisions allow employers to make their employees "agree" to waive their right to a jury and to pursue class actions as a condition of employment. Employers generally prefer arbitration because of a belief that it is private, cheaper, and more employer-friendly than the court system.

In my experience, arbitration is more expensive than court for the employer because the employer often must pay the costs associated with arbitration. Hence, the employer has to pay its own lawyer and the arbitrator's fee. Also, arbitration is not always private. Also, I have had some good success in arbitration. Finally, when the employee is the one being sued, employers either forget about an arbitration or regret having made the employee sign an arbitration agreement as a condition of employment.

Terminated for Absenteeism? You May Still Be Entitled to Unemployment Benefits

2011-10-24T16:25:00.002-05:00

An employer, of course, can terminate a Maryland employee for being absent too many times (so long as none of the absences are protected by the FMLA, ADA, or Maryland Flexible Leave Act). But, are you entitled to unemployment benefits if you are terminated for excessive absenteeism? The answer is: it depends. If your absences are not your fault and you timely notified your employer when you would be out, then you are likely entitled to unemployment benefits.

I just represented an employee who found herself in exactly that position. She was terminated for being out of work too often. Each time she was absent she gave her employer proper notice. It was undisputed that she was out of work for a chronic medical condition. Over the employer's objections, the employee was awarded benefits.

A summary in the Maryland Department of Labor's decision digest summarizes the law:

The claimant was absent from work on an authorized maternity leave. Due to unexpected medical complications, the claimant was not able to return to work as early as anticipated. The claimant kept her employer informed of her medical condition. The employer would not hold the claimant's job until she could return to work after her six-week checkup. Absenteeism due to illness is not misconduct. The claimant was discharged, but not for any misconduct. DuBois v. Redden and Rizk, P.A., 71-BH-90.

Department of Labor Issues A New App to Track Overtime

2011-05-18T15:45:00.000-05:00

Q: What are the three most important rules in employment law?
A: Document, Document, Document.

The Department of Labor issued an app to document overtime. The app acts as a time clock. You press a button when you start working, then you press a button when you stop working. You enter your hourly rate. The app then calculates your wages and overtime. You can email a report of your time to help you follow the three most important rules of employment law: document, document, document.

Maryland Health Care Worker Whistelblower Protection Act

2011-02-17T13:51:00.001-05:00

Maryland has a special lawthat protects health care workers from retaliation. The Maryland Health Care Worker Whistleblower Protection Act protects an employee from retaliation if he or she discloses to a supervisor or board an activity that is in violation of a law, rule, or regulation.

The health care worker must believe in good faith that the activity poses a substantial and specific danger to public health or safety. The health care must make his or her report in writing or follow the employer's compliance policy.

In a recent case, the Maryland Court of Appeals (our highest court) ruled that the Act may protect a health care worker even if he or she only made an "internal" complaint to a supervisor.

Promise in Employee Handbook Can Become Enforceable Contract in Maryland

2011-01-24T14:01:00.001-05:00

Many employers issue employee handbooks. The handbooks usually include disclaimers that state that the handbooks do not change the "at will" nature of employment.

But, the United States District Court of Maryland recently ruled that an employer's anti-retaliation provision can become the basis for an enforceable contract. A pharmacutical representative alleged that her employer terminated her for reporting her supervisor's ethical violations. The Company's handbook stated:

Retaliation and threats of retaliation against employees who raise concerns, or against individuals who appropriately bring important workplace and business issues to the attention of management, are serious violations of [the Company's] values and standards and will not be tolerated. . . . All directors, officers and employees are strictly prohibited from engaging in retaliation or retribution . . . which is directed against an individual on the basis of or in reaction to that individual making a good faith report to the Company . . . of suspected violations of law, regulation, policy or procedures, or Our Values and Standards.

Despite several disclaimers, the Court ruled that the above language was sufficiently specific and definite to constitute an enforceable promise. The Court held: "Given the unambiguous nature of the non-retaliation policy, the disclaimers that [the Company] relies upon are insufficient to defeat [the plaintiff's] reasonable expectation that [the Company] intended to limit its ability to terminate her for retaliatory reasons."

Legal Jujutsu: Compelling Arbitration When Sued For Alleged Breach of a Non-Compete

2011-01-21T15:00:00.000-05:00

I have mentioned forced arbitration often on this blog. That is, when an employer requires its employees to sign an arbitration clause and waive their right to a jury trial as a condition of employment.

But, what happens when at the end of the relationship, it is the employer that sues the employee in Court for a non-compete violation? With a bit of legal jujutsu, I have had some success getting the matter dismissed from Court based on a motion to compel and to dismiss using the employer-drafted forced arbitration clause. Dismissal may or may not be the end of the story as the employer may still pursue the matter in arbitration.

Bill to raise Maryland’s minimum wage faces opposition

2011-01-20T09:48:00.002-05:00

A bill pending in the General Assembly proposes to gradually move the Maryland minimum wage to $10 per hour. This article from the Daily Record notes the substantial opposition to the bill, including from the Maryland Chamber of Commerce. Given the economic climate, I believe the odds of the bill passing are slim.

Recent Decision - Attorneys Fees Under The Maryland Wage Payment and Collection Law

2011-01-19T17:10:00.001-05:00

Daniel Barufaldi had an employment contract with the Ocean City Chamber of Commerce. He resigned when the chamber refused to pay him incentive-based compensation.

Barufaldi sued the Chamber for breach of contract and unpaid wages under the Maryland Wage Payment and Collection Law (“MWPCL”), and the Chamber counterclaimed for breach of contract. The jury found that the Chamber had breached the employment contract and violated the MWPCL by failing to pay Barufaldi $60,000 in unpaid wages, and that the Chamber’s failure to pay was not the result of a bona fide dispute. The court, however, did not grant Barufaldi’s motion for attorneys’ fees.

On appeal the Court of Special Appeals vacated and remanded the trial court’s order denying Barufaldi’s motion for attorneys’ fees under the MWPCL. The Court stated that the MWPCL is a fee-shifting statute that requires courts to “liberally” exercise discretion to award attorneys’ fees where there is no bona fide dispute. Because the trial court did not set forth circumstances militating against any award of fees, and, in fact, had not offered any explanation at all of its reasoning in denying the fee request, the court vacated and remanded the issue of attorneys’ fees to the trial court.

Ticket Office Employees v. Washington Redskins

2011-01-17T13:37:00.000-05:00

Consult an Attorney if You Have an In-Person Unemployment Hearing

2011-01-16T15:04:00.000-05:00

Many lawyers were reluctant to handle unemployment hearings for individuals because the fees were capped by regulation. But the regulation just changed. Attorney's can now charge a fee of twice a claimant's weekly benefit amount. If the case is complex, an attorney can petition for a higher fee. Attorneys should be willing to take more of these cases. I know I will.

You May Be Entitled to Unemployment If You Quit With Good Cause for Health Reasons.

2011-01-14T09:47:00.000-05:00

Maryland's Unemployment law states that you are eligible benefits if you quit with "good cause." Good cause is not fully defined but may be shown if the reason you left work is "directly attributable to, arising from or connected with the conditions of the employment or the actions of the employer."

Resigning because you suffer from a health problem resulting from an on-the-job injury may constitute good cause. For example, in the attached decision (identifying information redacted), a Hearing Officer found my client quit with good cause for health reasons. She suffered from a mold allergy. When the office flooded, she began suffering symptoms. After being told the office would not be renovated for six months, she quit. As stated, the Hearing Officer found my client quit for justifiable reasons directly attributable to work.

You May Not Be Within the Class of Employees That Can Be Covered by a Non-Compete Agreement.

2011-01-13T14:20:00.001-05:00

Maryland Employers often require employees to sign non-compete agreements as a condition of employment. But just because you signed a non-compete agreement does not mean that it is enforceable as to you. Only a narrow class of employee may lawfully be covered by such an agreement.

The case, Ecology Services, Inc. v. Clym Environmental Services, LLC, illustrates the point. There, the Maryland Court of Special Appeal refused to enforce a non-compete agreement applied to “Radioactive Waste Specialists” and “Radioactive Waste Technicians.” The Employer bringing the action could not prove that the employees possessed (a) any truly unique skills or (b) exploited any specialized personal contact at their new job. Truly unique skills are those that would make it difficult to find a substitute employee with the same skills. Specialized personal contacts are generally limited to proprietary sales opportunities.

In sum, an employer can only enforce non-compete agreement against a narrow class of employees and only when it can state a legally protectable interest.

See this post and contact an attorney if you are threatened with enforcement of a non-compete in Maryland.

Triple Damages When The Employer Disputes Only Part of the Wages Claimed

2011-01-12T11:09:00.001-05:00

I recently tried a small Maryland Wage Payment and Collection Law case in the District Court of Maryland. The employer conceded that it owed some -- but not all -- of the wages we were seeking. The Court did not award the disputed amount; but tripled the undisputed amount. The Court relied on this passage from my trial brief on the issue:

An employer may be liable for treble damages on only a portion of the amount claimed. In Medex, for example, the Court noted that the employer’s withholding of one part of the employee’s claimed wages “might itself be evidence of a lack of good faith” Id at 43. Likewise in, Baltimore Harbor Charters, Ltd. v. Ayd, 365 Md. 366, 397, 780 A.2d 303 (2001), the Court noted that the “bona fide dispute” provision of § 3-507.2 contains no language which would permit an employer to withhold amounts it concedes are owed to employee. According to the Court: “where an employer alleges the existence of a bona fide dispute as to the total amount of wages owed to an employee . . . yet concedes that a certain amount of wages are due. . . the employer acts at his or her peril in failing to pay the conceded amount.” Id. The penalty provision in § 3-507.2 thus applies to any portion of the amount claimed to be owed or paid late that is not subject to a good faith dispute.

The Court's award of triple damages is important. It allows my client to seek to collect his attorney's fees from the employer that withheld his wages.

Is Maryland's Labor Climate Improving? It Depends How You Spin It.

2010-09-28T11:59:00.000-05:00

Maryland's Department of Labor recently pulled from its website a gloomy report on our State's labor climate (specifically job growth). It subsequently issued a more rosy report. Why? The DLLR claims it was published prematurely. Candidate for Governor, Bob Ehrlich, contends the DLLR fudged the numbers.

Dirty Labor Laundry On-Line

2010-08-24T15:39:00.001-05:00

Want to know if your employer is a serial labor law violator? Check The U.S. Department of Labor - Enforcement Data . There, you can search by to see if your employer has previously violated USDOL-enforced labor laws (like the Family and Medical Leave Act and the federal minimum wage and overtime law).

How to Apply for Maryland Unemployment Insurance

2010-08-10T10:52:00.003-05:00

Many, many clients asks me about the nuts and bolts of filing an unemployment claim. This video published by the State of Maryland does a good job explaining the process.