Thursday, June 13, 2024

Maryland Paid Family and Medical Leave Scheduled to Start on July 1, 2026.

     Maryland has enacted a paid family and medical leave insurance program paid family and medical leave insurance program that will begin paying benefits on July 1, 2026.  The benefit will be up to $1,000 per week.  The program is funded by a tax on employee wages.  The tax is paid by employees and by employers with 15 or more workers.  (Small employers are exempt from paying into the fund).  The benefits are paid by the State or an Insurer and not the employer. 

     The leave can be for up to 12 weeks.  It can be used to (1) welcome a new child; (2) care for the employee's own serious health condition; (3) care a family member’s serious health condition; or (4) make arrangements for a family member’s military deployment.

     This paid family and medical leave will need to be coordinated with  other leave.  Employers cannot require that employees use other paid leave before or during the period covered by this new paid family and medical leave program.      

     The law authorizing the insurance program contains an anti-retaliation provision. It allows an employee to file an administrative claim if the employee is not restored to his or position at the end of their protected leave, or if the employer terminates an employee for taking a protected leave (though there are some exceptions).

  The Maryland Department of Labor has issued a set of draft regulations to implement the new program.   

Thursday, April 25, 2024

FTC Rule Banning Non-Competes to Become Effective But is Subject to Legal Challenge

   I have defended numerous employees accused by their former employers of violating non-competition agreements.  In several recent cases, I have successfully persuaded trial courts to rule that all or part of the at issue agreements be invalidated because they are overbroad.

  On April 23, 2024, the Federal Trade Commission voted to finalize a new rule to prohibit employers from enforcing noncompetes against workers.  The rule is set to become effective 120 days after its publication in the Federal Register.  There have already been several legal challenges seeking to invalidate the rule.  

   The rule defines a non-compete as an agreement that prohibits or prevents a worker from seeking or accepting a subsequent job.  Importantly, this would prohibit restrictive training repayment agreements, that often impose steep training repayment costs if an employee leaves an employer who has provided training.  These are often called "stay or pay" agreements.  The rule exempts a limited number of high level or highly compensated employees (earning over $151,164 annually).  The FTC also did not prohibit non-disclosure or non-solicitation agreements (unless they prevent a worker from subsequent employment).

   Time will tell whether the legal challenges succeed in delaying or enjoining this game-changing new rule. 

Friday, April 12, 2024

New Law Will Require Employers Give Wage Notices To Maryland Employees Every Pay Period

 The Maryland General Assembly passed a new law that requires employers give notice to employees every pay period.  This information provides minimum standards for the information normally placed on a physical or electronic pay stub.  The stub/notice must include the following information:

➤ The employer’s name registered with the State, address, and telephone number; 

➤ The date of payment and the beginning and ending dates of the pay period; 

➤ The number of hours worked during the pay period, unless the employee is exempt; 

➤ The rates of pay

➤ The gross and net pay earned during the pay period

➤ The amount and name of all deductions; 

➤ A list of additional pay, including bonuses, commissions on sales, or other bases; 

➤ The applicable piece rates of pay and the number of pieces completed at each piece rate for each employee paid at a piece rate. 

If signed by the Governor, the Law will go into effect on October 1, 2024.


Thursday, April 11, 2024

Maryland General Assembly Passes Uniform Anti-Retaliation Provisions to Protect Wage Whistleblowers

    The Maryland General Assembly passed House Bill 1036.   It provides that employers cannot retaliate against employees who complain about violations of Maryland's child labor, equal pay, wage and hour, wage collection, workplace fraud, and living wage laws.  The new Law establishes a uniform enforcement procedure.  Whistleblowers who are retaliated against for making complaints may file with the Maryland Department of Labor.  The Department then has the ability to investigate the claims, collect back pay, and assess fines on a violating employer.  If a violating employer does not comply, the Department can sue the employer in Court and seek a broader array of damages, including triple damages, punitive damages and attorney's fees.  If signed by Governor Moore, the new law will take effect on July 1, 2024.   

Friday, February 21, 2020

The Long Arms of the Maryland Wage Payment and Collection Law

The Maryland Wage Payment and Collection Law is worker protection statute.  It requires the payment of earned wages.  If an employer does not pay, the employee can collect triple damages if he or she can prove the wages are withheld in bad faith.    The Law applies to employees who work in Maryland

But how much work must an employee perform in Maryland?  Employees often spend time in more than one jurisdiction here in the "DMV."  That questions was largely answered in Himes Associates v. Anderson.   There, the employee, Mr. Anderson lived in Maryland but worked for a Virginia employer and spent most of his work time in that state.  Mr. Anderson was tasked with overseeing the construction of a building in Virginia, but, as a part of those responsibilities, he was required to present a proposal in Baltimore and attend meetings twice a month in that city. On two other occasions, the employee was asked to visit a work site in Gaithersburg and work on a project in Aberdeen.

As it turns out the Maryland Wage Payment and Collection Law has long arms.  An employer is subject to the Maryland Law if instructs an employee to be present at a work site.  According to the Court, "[t]he plain language . . . covers the situation in which a company outside of Maryland directs its employee to go to a work site in Maryland." Because the employee attended meetings twice a month in Baltimore, the Court concluded that the Virginia employer is subject to the Maryland Wage Payment and Collection Law.

This case, Himes Associates, could well be applied to an employee who works from home in Maryland for an out-of-state employer.  I suspect we will be seeing such a case in the near future.

Thursday, September 12, 2019

Two Maryland Non-Compete Clauses And A Magic Blue Pencil.

Aerotek filed suit in Maryland against a former employee alleging she violated a non-compete agreement.  Aerotek v. Obercian, 377 F. Supp. 3d 539 (D. Md. 2019).  The employee had significant customer contact while working for Aerotek.  The agreement contains two non-compete clauses that generally prohibit this employee, for 1 year post-termination, from:  (1) performing business similar to that which she performed at Aerotek and (2) working for any business that is engaging in a business similar to Aerotek's.

Can you guess which clause the Court found enforceable and which it found was not?

The Court found Clause 1 facially enforceable because it is plausibly directed at a legally protectable interest.  That interest, according to the Court, is ensuring that a departing employee does not steal the employer's customers.  

The Court found Clause 2 facially unenforceable because it prohibited Aerotek's former employee from working for a competitor, even if she was not doing competitive work.  This is sometimes called the, "janitor test."  Clause 2 is unenforceable because it prevents Aerotek's former employee from working as a janitor for a competitor.  

When a non-compete agreement contains two or more divisible clauses, the Court use a magic "Blue Pencil."   That means, the Court can re-write the Agreement to excise unenforceable clauses and keep the enforceable ones.  And, that is what the Court did.

But the Court also ruled that it was not clear whether the employee's work at her new job is competitive to the work she performed for Aerotek or whether she stole any Aerotek customers.  As such, the Court denied Aerotek.'s motion for summary judgment.  A jury will now decide the dispute.    (A jury will also decide whether this employee violated a non-solicitation clause and whether she is entitled to damages on a counter-claim she filed for a bonus).

(Updated to note:  this case settled before trial).

Thursday, June 13, 2019

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.