Category Archives: Employment

Maryland employers may need to provide accommodation to employees with disabilities by offering alternative job postings

The Maryland Fair Employment Practices Act (“MFEPA”) makes it an unlawful for an employer to refuse to make a reasonable accommodation for an employee that has a disability known to the employer.  Regulations implementing the Act provide that an employer many not deny an employment opportunity to an employee with a disability, if the basis for the denial is a need to accommodate the individual’s physical or mental limitations, and the accommodation would be reasonable.

Earlier this year, in Townes v. Md. Dept. of Juvenile Services, the U.S. District Court in Maryland had an opportunity to apply this law to a government employee who was diagnosed with bipolar disorder. The employee’s treating psychiatrist recommended that she work from a different office location within the state-wide department, in order to reduce travel. The employee contended that there were open positions within the department that would require her to engage in less travel, but the department declined to consider her for any of those jobs when she returned from disability leave.  She further alleged that her employer failed to perform an individual assessment to determine whether she was qualified for another job, beyond her current position. The employer filed a motion for summary judgment, arguing that it was entitled to a favorable judgment as a matter of law on the facts as alleged by the employee, without need to proceed to trial on those facts.

The employee argued that the MFEPA is similar to the Americans with Disabilities Act (“ADA”) in requiring an interactive process by which an employer conducts an individualized assessment for an employee with a disability.  She pointed to an earlier decision by the Maryland Court of Appeals, in which that court broadly interpreted the phrase “job in question.” The court also looked to a Maryland state regulation that requires an employer to consider an employee’s request for another job position if she becomes disabled.

The question in the summary judgment motion came down to whether a Maryland employer is required by the MFEPA to assess whether an employee with a disability can perform the essential functions of any job opening within the organization, or only those that are located in the employee’s existing work location.   While the employer did not dispute that it was required to perform a review to determine whether a reasonable accommodation was available to allow the disabled employee to perform essential job duties, it questioned whether it had to assess whether the employee can perform job functions at any job posting within a multi-site organization.  In ruling on this pre-trial motion, the court found that the MFEPA statute does not preclude a jury from finding that there is such an obligation, and therefore the court allowed the case to proceed toward trial.

This ongoing case suggests that federal courts in Maryland may be inclined to interpret the MFEPA in a similar manner as the Americans With Disabilities Act (“ADA”) and the Rehabilitation Act.  If so, then upon learning of an employee’s request for a transfer to another job location due to a claim of disability, an employer should engage in good faith interactions with the employee (and an individualized assessment), and try to find an appropriate job posting for the employee elsewhere within the organization.  As noted, this case has not yet reached trial, and the plaintiff still must prove her case to a jury in order to prevail on her theory.

For information about employment law claims, please contact the Law Office of Steven J. Lewicky.

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New District of Columbia Requirements for Paid Leave, and Barring Credit Checks

Two new employment laws went into effect in the District of Columbia in April — The District of Columbia Universal Paid Leave Amendment Act, and the District of Columbia Fair Credit in Employment Amendment Act of 2016. Both laws will have a significant impact on businesses in D.C., and also on Maryland companies that have D.C. employees.

D.C. employers must give employees eight weeks of family leave

The Paid Leave Act requires employers to provide their employees with eight weeks of family leave, and it applies not only to employers based in D.C., but also to any business outside of the District that pays D.C. unemployment insurance. This brings within the scope of the law an employee that spends more than 50% of his or her work hours within the District of Columbia, and has worked for at least a 12-month period prior to the leave request.  The law applies to an employee that lives outside the District, if he or she works within the District.

A covered employee is entitled to:

  • Up to eight weeks or parental leave
  • Up to six weeks of family leave to care for a relative, and
  • Up to two weeks leave for a serious health condition

Leave is capped at a maximum of eight weeks in any 52-week period.

D.C. employers can no longer use credit ratings in hiring decisions

The new Fair Credit in Employment Amendment Act prohibits an employer from using or investigating credit information during the hiring process. A D.C. employer cannot request, require, or suggest that any current or prospective employee submit any type of credit information through job applications, credit history checks, or interviews. The law also covers interns.  There is an exclusion from the law’s prohibitions for applicants for positions requiring security clearance.  The law is enforced by the complaint process through the D.C. Commission on Human Rights, and penalties range from $1,000 to $5,000 per violation.

Employers in the District of Columbia should review their employment policies and:

  • Remove questions pertaining to credit information
  • Include in their employee handbooks a statement that the company no longer requires information from applicants regarding credit
  • Remove all credit information, such as credit background checks, from pre-employment background checks.

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Maryland court clarifies the burden of proof to be applied in defamation lawsuits

People often think that any false statement asserted about a person is defamatory.  In fact, the law of defamation is complicated, and different standards apply to public figures and to private citizens outside of public life.

To successfully make a case of defamation in Maryland, you must establish that the accused defendant made a defamatory statement to a third person, that this statement was false, that the defendant was legally at fault in making the statement, and that the plaintiff suffered harm as a result of the statement’s publication.  A statement is only “defamatory” if it tends to expose a person to public scorn, hatred, contempt, or ridicule, and thereby discourages the community from having a good opinion of, or associating with, the person that was the subject of the statement.  Even if a statement is defamatory, a defendant still may raise what is known as a “qualified” or “conditional” privilege from being held responsible, and thereby be excused for the defamation if the defense is proven.

One form of conditional privilege is the First Amendment privilege.  The U.S. Supreme Court established decades ago that statements pertaining to public figures on matters of public concern are excepted from defamation liability, unless the speaker or writer had actual knowledge that the statement was false, or acted with reckless disregard for the truth.  This is a very high standard of proof, and makes it very difficult for a public figure to win a defamation action.

Private citizens that are not public figures do not have to overcome this First Amendment privilege to prevail in a defamation action, but there are other privileges, arising under the common law, that may derail a defamation action brought against a private person.  There is a “public interest” privilege, for example, permitting persons to communicate to public officials about matters that are within their public responsibility.  There is a privilege to communicate with someone who shares a common interest, or to make statements in defense of oneself, or in the interest of others.  There is a “fair comment” privilege, and a privilege to make a fair and accurate report of public proceedings.  The breadth of these common law privileges are not precisely defined by case law.

On November 22, 2016, the Maryland Court of Appeals issued a decision clarifying one aspect of defamation law:  In cases of private defamation, the plaintiff has the burden of proving the falsity of the allegedly defamatory statement.  If the defendant asserts a common law conditional privilege, the plaintiff also bears the burden of overcoming that privilege.  The Court, in this recent case, has now clarified that the standard of proof that the plaintiff must meet in overcoming a conditional privilege is proof by a preponderance of the evidence.  This decision establishes that a plaintiff in such a case need not meet the higher standard of overcoming a conditional privilege by clear and convincing evidence, which is required in some other states.

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Confusion reigns as new overtime rule is placed in limbo

Maryland employers and workers have reason to be confused about an anticipated expansion of eligibility for overtime pay.  In May, the U.S. Department of Labor issued a regulation that would have doubled (to $47,476) the salary threshold at which many workers have a right to receive time-and-a-half pay, for work weeks that exceed 40 hours.  The rule also would have indexed to inflation future increases in this threshold.  The rule was to have taken effect on December 1, but a few days ago a U.S. District Court judge in Texas issued an injunction barring the rule’s implementation, holding that the Department of Labor may have exceeded its authority in issuing the rule.

The court’s ruling was handed down as Congressional leaders were giving consideration to adjourning earlier than Congress otherwise would have, to preserve the incoming Republican Congress’ ability to legislatively block the new rule in January 2017.  Under the Congressional Review Act, adjourning the current Congress early would stop the clock for legislative review until the new Congress convenes.  Congress might still go forward with this blocking action in January, despite the Texas court’s injunction, since the injunction could prove to be temporary.  In addition, Congressional action would have nation-wide effect, while the impact of court action could eventually become regionally fractured if some federal Circuit Courts continue to block the regulation, while other Circuits uphold the regulation (should Congress fail to act in January).  As long as the ninth seat on the Supreme Court remains vacant, anticipated splits between the Circuit Courts of Appeal on this issue would remain in place, if Congress does not legislatively block the regulation.

Many employers have already informed their employees of pay increases that would take categories of their workers above the regulation’s $47,476 threshold.  This new threshold now no longer is legally binding – as long as the Texas injunction remains in place, and/or if Congress blocks the rule in January – yet employers fear an adverse impact on employee morale should they rescind previously-awarded pay increases.  On the other hand, honoring previously-announced increases that are no longer necessary in order to keep an employee under the applicable salary threshold would mean incurring salary costs that are not legally required.

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Policies to include in employee handbooks

Maintaining current employee handbooks is a critical protection for Maryland employers. Here is a short article written in October 2012 by my colleague, Cheryl Brown, listing some recent developments in the law that employers should consider adding to their employee handbooks as we move into the new year.

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