Wednesday, December 30, 2009

Redskins Workers Fight For Their Right to Rights

Click here for a brief write up of the ticket workers' case against the Redskins.  It is focused on the fact that the Redskins required my clients to sign arbitration clauses as a condition of employment.  I have written about such clauses several times on this blog

Monday, December 21, 2009

License To Smoke Pot May Not Hold Much Weight In The Workforce

A local reporter interviewed me about how DC's new medicinal marijuana law may affect workplace rules. Not much is the answer:
"Once it affects your work performance, it's the employer's rule, just like with any other drug."

In other words, whether or not marijuana is legalized for medicinal purposes, if you come to work under the influence you can be fired (just like if you come to work under the influence of other legal substances, i.e., alcohol). Also, most states allow random drug testing and zero tolerance policies and possession of marijuana is still a federal offense. So, even if the use of marijuana does not affect your job performance, if your employer finds out you are using it, your employer can terminate you.

Tuesday, September 08, 2009

Sick With Flu? Workers Have Few Rights

I did an interview with WUSA 9 last night on employee rights when you get the flu. Here is a bit more detail on your rights if you are an immediate family member gets sick with the flu:

  • FAMILY AND MEDICAL LEAVE ACT. If you and your employer are covered you have the right to up to 12 weeks of protected leave if your illness qualifies as a "serious health condition." A serious health condition is one the incapacitates you for more than three consecutive days and requires one treatment by a health care provider (i.e., an in-person visit within 7 days of the first day of incapacity) with a continuing regimen of treatment (e.g., prescription medication, physical therapy). You may also be entitled to protected leave is you caring for a spouse, son, daughter, or parent with a "serious health condition."

  • MARYLAND FLEXIBLE LEAVE ACT If you and your employer are covered you have the right to use accrued sick or vacation leave for yourself if you are sick or to care for a child, spouse, and parent.

The above laws provide protected leave, i.e., your employer cannot retaliate against you or fire you for taking protected leave. Whether you and your employer qualify under the above laws can be a tricky issue and varies by jurisidiction.

Monday, August 17, 2009

Ticket Office Employees Sue The Redskins for Unpaid Overtime: Granted Collective/Class Status.

Six former employees of the Washington Redskins are prosecuting an overtime arbitration against The Washington Redskins. The suit charges the Redskins with failing to pay overtime wages and commissions in violation of federal and state labor laws. The suit was filed by the Rubin Employment Law Firm, P.C. The suit is pending before the American Arbitration Association as the Redskins required its employees to waive their right to a jury trial as a condition of employment. All six ticket office employees worked at FEDEX field in Landover, Maryland.

The suit alleges that the Redskins failed to pay the ticket office employees the required overtime premium. The suit also alleges that the Redskins retaliated against three of the six former employees by terminating their employment within days of learning that they were asserting their rights to overtime payments. Finally, the suit alleges that the Redskins failed to pay most of the plaintiffs out of their final commission checks.

The Arbitrator recently certified the employees' claims as a collective (or class) action. A notice will be sent to eligible employees inviting them to join the claim. The Arbitrator also rejected as an initial matter the Redskins defense that they are exempt from the overtime laws as a recreation establishment.

Current and former Redskins employees who wish to learn more should call The Rubin Employment Law Firm at 301-760-7914 or email James Rubin.

Recent press coverage can be found at the Washington Post (which blogged about it here) and the Washington City Paper.

Tuesday, June 30, 2009

Maryland Workplace Fraud Act of 2009 - "Independent Contractors" in the Construction and Landscaping Industries

The General Assembly last session passed the Workplace Fraud Act of 2009. The Act grants to the Maryland Department of Labor authority to 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. The Act uses Maryland's broad definition of employee.

While a step in the right direction, the Act is limited. It only applies to landscaping and construction. There is no private right of enforcement (only the State Department of Labor has a right to enforce the law).

Employees who have been misclassified (in any industry) as independent contractors in Maryland have other remedies. They can often pursue claims for overtime, unpaid wages, unemployment and can appeal their tax treatment to the IRS. Contact me if you believe you have been misclassified as an independent contractor.

Wednesday, June 24, 2009

Important Changes to Maryland Unemployment Law

The 2009 General Assembly enacted several changes to Maryland's unemployment law (the link goes to a review of the session -- scroll down to page 35 for the unemployment law reforms)

Here are the highlights:

Increase in benefits: The maximum weekly benefit rate will increase from increase from $380 to $410 for claims establishing a new benefit year on or after October 4, 2009. For claims establishing a new benefit year on or after October 3, 2010, the maximum weekly benefit is increased from $410 to $430. Additionally, by virtue of Federal Law, unemployment benefits have been extended up to an additional 33 weeks.

Benefits for Part-Timers: Individual who work on a part-time basis for at least 20 hours per week are now eligible for benefits.

Severance pay is disqualifiying. Eliminating what many thought was a loophole all severance and dismissal payments are deductible from unemployment insurance benefits

Thursday, February 12, 2009

In Record Numbers, Employers Move to Block Unemployment Payouts

The front page above-the-fold article in the Washington Post today is about how more and more employers are contesting employee claims for benefits. It provides empirical support to what I have witnessed in my law practice: an increased number of calls from employees facing appeals. Sadly, there is often not much I can do for them because, like most lawyers, I am usually reluctant to get involved in an unemployment appeal.

Edit:  As a result of a change in the law, I am now taking unemployment appeals.

Tuesday, February 10, 2009

Workers Rights' Legal Clinic at the University of Maryland School of Law

If you have a meritorious unemployment benefits appeal and need legal representation, you may want to contact the Workers Rights' legal clinic at the University of Maryland School of Law. Trained law students, working under the supervision of their professor, who is an experienced employment law attorney, represent claimants in unemployment appeals.
For more information you can call Professor Deborah Eisenberg at 410-706-5995.

Monday, February 09, 2009

Is Severance Pay Deducted from Unemployment Benefits in Maryland?

UPDATE -- THE GENERAL ASSEMBLY ELIMINATED THE LOOPHOLE DESCRIBED BELOW. Severance now usually disqualifies you from receiving unemployment.
The answer: it depends. Here is a direct quote from the DLLR Employer's Quick Reference Guide (see page 19):

The receipt of severance payments will not be deducted from . . . benefits if the individual’s job has been abolished through layoff, facility closure, etc., unless the employer continues to pay all wages and benefits, including leave accrual, after the individual has physically stopped working.

Translation: Severance will not be deducted if your job was abolished when you were laid off unless during your severance period you are receiving ALL of your wages and benefits and are still accruing leave.

Nevertheless, be careful to answer of all the DLLR's questions about severance benefits truthfully, and disclose severance benefits whenever asked.

Thursday, February 05, 2009

Why Maryland Employment Lawyers Are Reluctant to Represent Claimants in Unemployment Hearings.

UPDATE:  Maryland unemployment changed the regulation discussed below.
Today The Washington Post published two articles on unemployment compensation: Deluge Is Holding Up Benefits to Unemployed Decline in Funding Forces Staff Cuts as Claims Swell and New Jobless Claims Surge to 626,000. The first article mentions the often harrowing appeal process that may occur when an employer contests a claim for benefits.

Potential clients often ask me if I will represent them in unemployment hearings. Sadly, my answer typically is no. The reason: a regulation limits the amount of compensation an attorney may charge for a hearing. The regulation limits the fee to $100 for a hearing, which can be increased to 150 percent of the claimant's weekly benefit amount upon an attorney submitting "an itemized account of services rendered in the case." The maximum weekly benefit amount is now $380. Hence, the maximum fee that could be awarded for an unemployment hearing is $570.

Five hundred seventy dollars is nothing to scoff at, but: (1) not every applicant is eligible for the maximum amount; (2) preparing for and attending a hearing often involves several hours of attorney work; and (3) a fee of more than $100 is awarded for a hearing only upon submission of a petition and approval by the Board of Appeals. Hence, most Maryland employment lawyers are reluctant to represent claimants in unemployment hearings.

Friday, January 23, 2009

Triple Damages Standard Under the Maryland Wage Payment and Collection Law

I recently won a verdict at a bench trial (no jury) that included enhanced damages under the Maryland Wage Payment and Collection Law. The Law allows an employee to recover up to three times the amount of earned unpaid wages. I am frequently asked what the standard is for awarding enhanced damages. The Law states that enhanced damages can be awarded if the employer withholds the money not as a result of a bona fide dispute. The Maryland Courts have interpreted this to mean that enhanced damages can be awarded if the employer withholds wages in bad faith. With any evidence of bad faith the issue should go to the jury.

How does this translate to a jury trial? Below is version of an instruction I suggested the Court give to the jury on this issue:

The Maryland Wage Payment and Collection Law authorizes employees and former employees to recover up to three times the amount of unpaid wages if the withholding of payment was not the result of a bona fide or good faith dispute.
If you rule in favor of the Plaintiff on his claims under the Maryland Wage Payment and Collection Law, you must determine whether the Defendant's refusal to pay the Plaintiff all or part of his earned commission, bonus, or severance was not the result of a good faith dispute.
An employer may be liable for treble damages for all or any portion of the amount claimed.
If you find that the withholding of all or part of the commission, bonus or severance was not the result of a good faith dispute, you may award up to three times the amount of the commission, bonus or severance that was not the result of a good faith dispute.

Sadly, Not Much To Contest About an Across-The-Board Pay Cut.

A reader recently asked:

I've read over your blog and must thank you for posting all of the information. Your blog is very helpful. I have a question that I would like to ask you that I am having trouble finding an answer to. All salary and hourly employees at the company I work for have been told that a mandatory pay cut would be put into effect on our next pay cycle. What laws exist in the state of Maryland in regards to this?

I wrote back:

Not much. Employers cannot take back money that already been earned (i.e., commissions and bonuses), and must give one paycheck notice of a pay cut.

I add: of course the decision to make the cut must be non-discriminatory and cannot reduce an employee's wages below the minimum wage.

Monday, January 12, 2009

Maryland Flexible Leave Act Likely to Be Amended

Last session the General Assembly passed the Maryland Flexible Leave Act. The Act requires employers with 15 or more employees that provide paid leave to allow the employee to use earned paid leave to care for the illness of an immediate family member (child, spouse, or parent). The Maryland Department of Labor has provided a synopsis here. Employers are prohibited from retaliating against individuals who take protected leave.

The Maryland Chamber of Commerce reports significant support to amend and clarify the Act by adding definitions. I hope to add a link to the proposed amendments when the bill is introduced.

Maryland Department of Labor to Push Bill Increasing Penalties for Mislcassifying Employees as Independent Contractors

It will be a difficult General Assembly session with our State facing nearly a $2 billion deficit. Our State Department of Labor (the DLLR) will be pushing a bill to stiffen the penalties for misclassifying employees as independent contractors for unemployment and workers compensation. Since such a bill should produce revenue it might have a better chance of passing this year.

An article in the Daily Record has this to say about the bill's likely features:

Though [DLLR Secretary] Perez said his department had not completed the legislation it will propose this year, he said the law could be a better deterrent than the “slap on the wrist” that employers now get for underpaying for unemployment or workers’ compensation. That usually involves an order that employers make back payments and may include fines.

The bill proposed last year by DLLR would have created new civil penalties including $3,000 fines for misclassification, but Perez said the violation should be referred to as “workplace fraud.”