New Maryland Law Broadens Protections Against Workplace Harrassment

A new law, that takes effect October 1, 2019, expands the protections Marylanders have against workplace harassment.  The new law:

• Allows independent contractors to claim workplace harassment.
• Extends the time for individuals to file administrative claims for workplace harassment to two years (up from 180 days).  
• Expands the scope of our State's anti-discrimination law to employers with one or more employees (down from 15 employees).    
• Clarifies that harassment based on the following is prohibited: race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, gender identity, or disability.

Facing workplace harassment?  Consult a Maryland Employment attorney.

Q: How many times has the Montgomery County Domestic Worker Law been enforced?

A:  Once

Since 2008, Montgomery County, Maryland, has a Domestic Worker Law.  The Law requires that a family who employs a domestic worker have a written employment contract with that worker.  The Law is enforced by the Office of Consumer Protection.  The Office may seek a civil penalty of not more than $1,000.00 for each violation, and additional damages, restitution, or any other available legal or equitable relief.

A recent Washington Post article noted that the Office has only sought to enforce the law once.  According to the article:

Take the law passed in 2008 requiring residents to offer domestic workers a written contract. At the time, Council member Roger Berliner (D-Potomac-Bethesda) said he was worried about “whether we would be deemed to be the nanny government of all time.” 

Still, the bill passed unanimously. 

Since then, it’s been enforced once.

Harassed at Work in Maryland? Here are a few things to consider.

Not all harassment is legally actionable.  "Harassment" in the common sense of the work can range from perceived slights to outright physical abuse.  While you may being treated unfairly, there may no legal avenues for relief.  It is in the nature of the word "harassment" that it can describe varying levels of conduct.

But some workplace harassment is actionable.  You should contact an attorney for help when you believe you are being subject to any sort of conduct that approaches anywhere near the level of actionable harassment.  

Harassment based on a protected category, like age, race, gender, etc., may be actionable.  The EEOC defines such actionable harassment as: 

Unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive."

Certain severe harassment may also make you eligible for an immediate peace or protective order from the District Court of Maryland or a Commissioner.

If you are facing harassment (even the non-actionable type), should you quit?  I have previously discussed this exact question.   Your decision has legal implications (as an example, quitting could have an affect on your eligibility for unemployment benefits).  Your decision has life implications. You should consult the people you trust (an possibly consult counsel).  The answer is that there is no easy answer.  

EEOC Wins Maryland Jury Verdict of $350,000 for Sexual Harassment and Retaliation Victims

In Baltimore, the EEOC won a recent jury trial on behalf of three employee accusing their bosses of sexual harassment and retaliation.    Lind Luz was the lead plaintiff.  She was the receptionist in a physician's office.   After Ms. Luz repeatedly rejected the advances of the physician CEO  and the CFO, the practice began retaliating against her by issuing to her unwarranted  discipline and rescinding approved leave, which eventually culminated in her  retaliatory termination.   The CEO and CFO sexually harassed two other employees, a nurse and a study coordinator.  The jury  returned a verdict finding  that three women were entitled to compensatory damages in amounts ranging  from $4,000 to $10,000, and awarded each claimant punitive damages in the amount of $110,000.

Pending Law Will Ban Employer Facebook Password Queries

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).

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.

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.

• DISTRICT OF COLUMBIA FAMILY AND MEDICAL LEAVE ACT. If you and your employer are covered you have the right to up to 16 weeks of protected leave if your illness qualifies as a "serious health condition."

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.

Q: My Employer Has Offerred Me Severance In Exchange for Signing a Waiver. What Should I Do?

Q: You have been fired. Your employer offers you a severance agreement. The agreement offers you money in exchange for signing a waiver. What should you do?

A: You should understand exactly what it is you are waiving. If possible, have a lawyer review the agreement. Some employers take advantage of their superior bargaining power and insert unfavorable terms in severance agreements. I have seen non-competition, non-solicitation, attorney fee-shifting, and arbitration provisions inserted into severance agreements.

You should protect your interests. Understand what your former employer will say to future employers seeking a reference. Will your former employer give you a positive, or at least, a neutral reference. Will your former employer contest your claim for unemployment benefits?

Lastly, do not leave money on the table. Understand your rights to earned wages under the Maryland Wage Payment and Collection Law.

Protecting Employee Rights in the State Courts of Maryland

The Third Annual Maryland Employment Lawyers ("MELA") Conference, "Protecting Employee Rights in the State Courts of Maryland," will be Friday, September 28, 2007 at the Columbia Sheraton.

There will be an exciting line-up, focused on how to succeed in the Maryland state courts. Special attention will be given to the new private right of action under 49B, Maryland's anti-discrimination law. Judges from various circuit courts in Maryland, and from the Office of Administrative Hearings, will give an insider's view to their jurisdictions. You'll also learn how to run a "lean and mean employment law practice," and get tips from seasoned employment litigators about how to win employment cases in the circuit courts (especially under local county codes). A full agenda is below and a brochure/registration form is attached.

8:30-9:00 a.m. Registration and Continental Breakfast

9:00-10:00 a.m. How to Run a Lean and Mean Employment Law
Practice

Moderator: Mary T. Keating, Esq.
Law Office of Mary T. Keating

Daniel A. Katz, Esq.
Andalman & Flynn, PC

Gwenlynn Whittle D'Souza, Esq.
Lippman, Semsker & Salb, LLC

Peter Holland, Esq.
The Holland Law Firm, PC

Break

10:15-11:15 a.m. Mechanics of the New Private Right of Action
under 49B

Moderator: Deborah Thompson Eisenberg, Esq.
Brown, Goldstein & Levy, LLP

Kathleen Cahill, Esq.
Law Offices of Kathleen Cahill, LLC

Glendora Hughes, Esq.
General Counsel, Maryland Commission on
Human Relations

11:15-12:15 p.m. Tips for Litigating Discrimination Claims
under the Local County Codes

Moderator: Thomas Gagliardo, Esq.
Gagliardo Law Firm

Linda Hitt Thatcher, Esq.
Thatcher Law Firm, LLC

Rebecca N. Strandberg, Esq.
Rebecca N. Strandberg & Associates

Leizer Goldsmith, Esq.
The Goldsmith Law Firm, LLC

Tammany M. Kramer, Esq.
Heller, Huron, Chertkof, Lerner, Simon & Salzman, PLLC

12:15 - 1:30 p.m. LUNCH

Keynote Speaker:
The Honorable Thomas Perez, Secretary Maryland Department of Labor, Licensing & Regulation

1:45 - 2:45 p.m. How to Litigate a State Administrative Hearing
at the OAH

Moderator: James E. Rubin, Esq.
Rubin Employment Law Firm, P.C.

The Honorable Thomas Dewberry
Chief Administrative Law Judge, OAH

The Honorable Bernard McClellan
Administrative Law Judge, Deputy Director of Quality Assurance, OAH

The Honorable Wayne Brooks
Administrative Law Judge, Deputy Director of Operations, OAH

Jessica Kaufman, Assistant Attorney General Maryland Department of Labor, Licensing and Regulation

Break (Sponsored by JMW Settlements)

3:00 - 4:15 p.m. Views from the Bench: Litigating in Maryland's Circuit Courts

Moderator: Jerry R. Goldstein, Esq.
Bulman, Dunie, Burke & Feld

The Honorable Evelyn Omega Cannon
Circuit Court for Baltimore City

The Honorable Toni E. Clarke
Circuit Court for Prince George's County

The Honorable Ronald B. Rubin
Circuit Court for Montgomery County

4:15 - 5:00 p.m.
MELA Happy Hour

Maryland Permits Church Organist to Continue Lawsuit

I have written a lot about Archdiocese of Washington v. Moerson. Here is a summary I wrote more than a year ago:

In Moerson, the Circuit Court and Court of Special Appeals issued conflicting decisions on whether the "ministerial exception" to Maryland's employment laws applies to an organist's claim against his former employer.

According to established precedent (Presbyterian Church v. Hull Memorial Presbyterian Church), the "free exercise" clauses to the United States and Maryland Constitutions create a zone of autonomy for religious organizations. The church autonomy doctrine deprives civil court of subject matter jurisdiction to review matters involving church governance and doctrine. However, the First Amendment is no impediment to a civil court's jurisdiction when it can resolve a Church's conflict by "neutral principles of law" without examining its religious doctrine (Maryland and Virginia Eldership of the Churches of God v. Church of God at Sharpsburg, Inc.).

As applied to statutory or common law employment claims, the church autonomy doctrine bars a civil court from reviewing a church's employment decisions regarding its ministers (hence, the phrase "ministerial exception."). This is so because the "perpetuation of a church's existence may depend upon those whom it selects to preach its values, teach its message and interpret its doctrines both to its own membership and to the world at large." (Rayburn v. General Conference of Seventh Day Adventists). But when a matter does not involve a minister, a civil court may resolve employment disputes, even if they are within a Church, if the
employee provides a purely secular service for the church (as in the 1982 decision EEOC v. Pacific Press Publ'g Ass'n, when the Civil Rights Act was applied to an editorial secretary in a church publishing house). Defining the line between ministerial and secular is often the issue in these cases as it is in Moerson.

Today, in a 4-3 decision, the Court ruled that Mr. Moerson is not a ministerial employee ruling that he merely accompanied relgious services.

Two Key Maryland Cases End Today

1. The Fourth Circuit's "black monkeys" case narrowed Title VII's anti-retaliation protection for employees working in Maryland. The Court held that by reporting to your boss that your co-worker called African-Americans "black monkeys" and "black apes," you are not opposing discrimination in the workplace (and therefore not entitled to Title VII's anti-retaliation protections). The Court reasoned that because a single discriminatory outburst does not violate Title VII, opposing such an outburst is not entitled to protection. See here, here, here, and here. Today, the Supreme Court declined to review the Fourth Circuit's decision in Jordan v. Alternative Resources Corp.


2. Attorney General Douglas Gansler today announced he would not seek Supreme Court review of the Fourth Circuit's decision holding that the Maryland's Wal-Mart law is preempted by ERISA. The Wal-Mart law, summarized here, would have required the company to spend at least 8% of its total wages on health insurance.

General Assembly Extends Discrimination Cause of Action Statewide

I wrote here about a quirk in Maryland's anti-discrimination laws. At the time only individuals who lived in four Maryland counties (Prince George's, Montgomery, Howard, and Baltimore County), could file a lawsuit alleging a violation of a local civil rights ordinance.

On March 23, 2007, Maryland General Assembly extended the law to cover the entire State. If Governor O'Malley signs the law, which is expected, all Maryland residents will have the right to bring suit under a local anti-discrimination law. The bill, which takes effect on October 1, 2007, opens the door to state court for discrimination victims.

Maryland Court of Appeals Grants Cert. in Two Employment Law Cases

The Maryland Court of Appeals will review two employment law cases in its September 2006 term. Both cases arise in Montgomery County. The issues presented are set forth below.

Sterling v. Atlantic Automotive (Ct. Spec. App. unreported) will address the extent an employer is vicariously liable for the harassment of its employee. Will the Court adopt the United States Supreme Court's Faragher/Ellerth anaylsis? In today's Haas opinion, the Court specifically declined to follow U.S. Supreme Court precedent on a statute of limitations issue.

Friolo v. Frankel will decide the extent to which a plaintiff can recover attorney's fee under the Wage Payment and Collection Law for work performed on a successful appeal overturning a trial judge's fee award. The Court of Special Appeals denied the plaintiff's claims for appellate fees.

Haas: Maryland Court Rules That Statute of Limitations For Discrimination Claim Begins At Termination

I wrote here that the Maryland Court of Appeals granted cert in Suzanne Haas v. Lockheed Martin Corporation. The issue in Haas is when the statute of limitation commences in a discrimination case. Haas contended that the statute began to run on the day that she was actually discharged, October 23, 2001. Her employer contends that the statute began on the day that she was notified of her prospective discharge, October 9, 2001. Haas filed suit October 22, 2003. The statute of limitations for her state law (Article 49B) discrimination claim is two years from the date of the occurence.

Today, the Court of Appeals issued its decision in favor of Haas and found her statute of limitations began on the date she was actually discharged. The Court rejected United States Supreme Court precedent stating that the statute of limitations in discrimination claims begins when a plaintiff has notice of her claims.

What You Write Can Become the Reason You Are Fired

I recently signed up for an account on myspace. Not to be a crumudgeon, but in browsing the site, I cannot help but notice that individuals post pictures and comments that they would never want known in the workplace. I then read a series of excellent articles by George Lenard (at George's Employment Blog) about how employers might use such content to screen out or terminate employees.

Would an employer be wrong to use such information in making hiring and firing decisions? Probably not, as long as it acted consistently without regard to an employee's protected class.

You are what you write.

Should I Stay or Should I Go? What to do when you are harassed at work.

Clients facing difficulties at work often ask me: "Should I just quit?" I often respond that there are two ways to look at the question.

1.The Legal Answer. Quitting will not usually help the employee who is considering taking legal action against his or her employer. It is better to consult an attorney, have that attorney file your claim, and endure while the legal process runs its course.

Quitting may cutoff any claim for back pay, unless your working conditions are so intolerable that you can prove a constructive discharge(discussed here)

Quitting may make it more difficult to collect unemployment benefits unless the employee can prove he or she quit for "good cause." Good cause is explained here at page 16.

Most anti-discrimination and wage and hour statutes have provisions that forbid employers from retaliating against an employee who complains in good faith that his or her employer is violating the law. As a result, an employee who make his or her complaint known to his or her employer has an added measure of legal protection. The United States Supreme Court recently addressed Title VII's anti-retaliation protections in the Burlington Northern case.


2.The Reality Check: If going to work is so bad that it is affecting your emotional health, you should consider quitting. You should weigh the potential legal advantages of sticking it out against the emotional toll of continuing to work at you current job. I often tell unhappy employees that ending your current employment relationship will not help your legal claim, but may be the best decision you ever make since it gives you the opportunity to find a better job.

In 5-5 Split, Fourth Circuit Denies En Banc Review of Black Monkeys Case

By reporting to your boss that one co-worker called African-Americans "black monkeys" and "black apes," are you opposing discrimination in the workplace? (An employer cannot retaliate against an employee for opposing workplace discrimination.) Two Fourth Circuit judges (out of a three judge panel) had ruled that reporting a single racist comment is not sufficient opposition to be entitled to Title VII's anti-retaliation provision. See here, here, and here.

Now, by a vote of 5 to 5, the full Fourth Circuit denied en banc review of Jordan v. Alternative Resources Corp. En banc review (that is: review by all of the judges on the court) requires a majority vote. As a result, employers in Maryland are free to fire employees who complain that a co-worker made a racially derogatory remark.

I imagine this case is headed to the United States Supreme Court.

Fourth Circuit Re-Affirms Decision in "Black Monkeys" Case

"They should put those two black monkeys in a cage with a bunch of black apes and let the apes f--k them."


I wrote here that an employer was free to retaliate against an employee for reporting the above comment to his employer. A majority opinion (Judge Niemeyer joined by Judge Widener) held that the employee could not have reasonably believed that above single outburst constituted a civil rights violation. This is so because a single racially derogatory remark does not rise to the level of actionable racial harassment


I then wrote here the Fourth Circuit panel vacated it decision for reconsideration.

The Fourth Circuit re-issued its opinion and reached the same result as the original decision. (Judge King dissented.)

I am sure the plaintiff will seek re-hearing en banc.

Maryland District Court Rules Waiver-For-Severance Deal Violates ADEA and Title VII

In a shocker, Judge Titus ruled in EEOC v. Lockheed Martin Corp, that Lockheed Martin's offer of severance in exchange for a full waiver of claims violated the ADEA and Title VII as a matter of law. Lockheed eliminated several positions as a result of a merger. It offered those losing their jobs severance benefits in exchange for a complete release of claims. Judge Titus ruled that Lockheed's could not "provide [severance] only to employees who refrain from protected activity."

Fourth Circuit Vacates Decision in Jordan v. Alternative Resources Corp.

I recently wrote about Jordan v. Alternative Resources Corp. There, the Fourth Circuit held as a matter of law that a plaintiff did not reasonably believe that the following comment violated our anti-discrimination laws:

"they should put those two black monkeys in a cage with a bunch of black apes and let the apes f--k them"

The Fourth Circuit recently granted rehearing and vacated its earlier opinion. The next chapter in this case will be soon be written.