Maryland Employment Lawyer Blog

In the past six months, we have started expanding our employment law practice to represent federal, state and local government employees in administrative hearings, typically terminations, demotions or disciplinary actions, such as suspensions. We successfully represented a client through an internal Social Security Administration administrative appeal concerning serious disciplinary charges relating to alleged sexual harassment of a coworker. We also successfully represented a federal employee with more than 20 years experience who was improperly discharged -- he was reinstated, his record was cleared of any wrong-doing, he was transferred to a more desirable location, and his attorneys' fees and costs were reimbursed. Finally, we have assisted several nurses in investigations before the Maryland Board of Nursing. In one particularly compelling case where very serious charges of sexual misconduct were brought against a nurse that could have resulted in license revocation, we were able to successfully negotiate charges to a reprimand. If you are a teacher, a nurse, an administrator, or any other type of government employee, and you are facing an administrative hearing at the Office of Administrative Hearings or with an internal board or panel, give us a call so we can discuss your case.

So, sometimes you take a "little" case on principle, and the outcome turns out to be better than you expect! In April 2009, we filed suit in Baltimore County Circuit Court to obtain about seven thousand dollars in overtime wages under the Maryland Wage Collection Law that a small construction company failed to pay to our client. In a nutshell, the company required our client to come to the corporate office, pick up his assignments and supplies and tools, and then travel from worksite to worksite, but only paid him for the time he spent working at each worksite. After much delay and several attempts to have the case thrown out of court, we went to trial before Judge Bollinger in September 2010, and in October 2010 he issued an opinion ruling in our favor. Well, it took awhile, but yesterday we received his decision awarding nearly $8,000 in overtime wages to our client, and awarding us more than $18,000 in attorneys' fees and costs! Now, of course, we have to try to collect the monies, but it still feels like a sweet victory!

We frequently get questions about how to file an appeal of a denial of unemployment benefits, and questions about what we charge to handle such appeals hearings. As for filing an appeal, the most important thing is to file your appeal in a timely manner, and to have proof that you have done so. If you file your appeal by fax, make certain that you have a confirmation page showing that the fax was successfully transmitted. If you file your appeal by mail, make certain you do so by certified mail. We usually advise people to simply write, "I disagree with the decision denying my unemployment benefits, and I would like to file an appeal and have an in-person hearing." We don't suggest explaining why you think the initial decision was wrong, because you might say something that can be held against you later in the appeals hearing. Once you get your hearing notice, with the date and time and location of your hearing, call us so we can see if we can assist you.

As for fees, we got a telephone call today from a claimant who read one of our previous blogs and thought that we only charged one and one-half times the weekly benefit to handle an unemployment appeals hearing. That is now incorrect, so we need to clarify that the Maryland legislature changed the fee schedule earlier this year, so our fee is now two times the weekly benefit. Thus, if your weekly unemployment benefit payment is $340, then our fee for handling your unemployment appeals hearing will be $680. We never charge more than 2x your weekly benefit payment.

If you have any questions about the unemployment appeals process, give us a call and we will try to assist you.

We've been noticing a significant uptick in the number of persons contacting us looking for representation relating to internal grievance proceedings, administrative law proceedings and internal appeals, primarily for government employees but also for some private employees. Sometimes, as with employees of the Board of Education or public universities, these hearings may be held internally, and sometimes, as with Maryland state agencies, these hearings may be held at the Office of Administrative Hearings in Hunt Valley, Maryland. It is important to keep in mind that these hearings tend to be held on a fairly short time frame, involving an intense amount of work preparing for the hearing, so if you need an attorney for such a hearing, please contact us as soon as possible before the hearing -- waiting for the last minute is not wise!

Well, its been a very busy few months, but one of the recent highlights was the 20th Anniversary Gala for the Pro Bono Resource Center of Maryland, where Andrew Dansicker was honored with a Certificate of Congressional Recognition from Congressman Steny Hoyer and an award from Chief Judge Robert Bell for committment to pro bono services during the past several years. During that time, our office has represented several indigent clients without charge, and we have volunteered hundreds of hours towards providing free employment law advice to persons who could not afford attorneys. The recognition reads as follows: "As an employment law attorney representing both employees and employers in all facets of employment law in Maryland, Andrew Dansicker has volunteered over one hundred hours on the Women's Law Center Employment Law Hotline during the past three years. Dansicker, a regular volunteer at the Baltimore City and Baltimore County Bar Associations' Lawyer Referral Services, has also handled numerous pro bono cases for the ACLU of Maryland, including cases involving public drug testing of high school students in their school cafeteria on the Eastern Shore, use of marijuana for medical purposes by a dairy farmer with AIDS in Southern Maryland, civil forfeiture, First Amendment issues and blind voter access issues." We will continue to provide pro bono services where possible, even as we expand our employment law practice!

On Friday afternoon, October 29, 2010, before Judge Susan Souder of the Baltimore County Circuit Court, we defeated a motion for preliminary injunction against our client whereby his former employer, a Baltimore hedge fund, was seeking to prevent him from working for a New York financial institution. Our client, a research scientist and mathmetician, had signed a limited non-compete agreement and confidentiality agreement, but his former employer argued that he had taken confidential and proprietary documents before leaving his former job, and that he was likely to disclose those secrets to his new employer. After hearing six hours of testimony, including from a computer forensic expert, the Court held that the former employer had failed to demonstrate that our client was likely to disclose confidential trade secrets and rejected the preliminary injunction motion.

We typically advise several dozen clients each year regarding similar situations involving non-competition agreements and non-solicitation agreements, and usually only two or three of those matters end up in court. When those cases do go to court, they are usually resolved fairly quickly through a motion for temporary restraining order or motion for preliminary injunction. If you are facing such a situation, do not hesitate to call us, as time is often a critical element in such matters.

After a mid-Summer lull in unemployment appeals cases, our phone has been ringing off the hook for the past several weeks. Lots of cases where claimants failed to report small amounts of monies earned during a part-time or short-term job while unemployed resulting in demands for repayment of thousands of dollars. Other cases where claimants quit jobs to take better jobs and, after being laid off from the new job, were denied unemployment. Finally, a number of claimants who simply broke rules, whether lateness, timesheets, safety, etc.

In these types of cases, we can sometimes win an appeal, but it depends on the specific circumstances. If the claimant left the first job for a better job, not just for higher pay but also for health care benefits, or for a higher title, then some hearing examiners will allow benefits. Likewise, as long as a claimant has not repeatedly broke the same rules after receiving warnings from their employer, hearing examiners will usually allow benefits. However, where claimants fail to report wages, even less than one hundred dollars, it is extremely difficult to win an appeal.

Finally, it is important to keep in mind that where a claimant has filed a late appeal or failed to participate in a hearing, it is extremely difficult for us to win an appeal, and we rarely take such cases unless the claimant has an excellent excuse for filing the late appeal or not showing up for a hearing.

One of the most common questions that we have been receiving lately has to do with whether a person can obtain unemployment benefits if they are also receiving severance pay. Unfortunately, in the past, Maryland employees could sometimes obtain unemployment benefits even if they were being paid severance (if their position was abolished). That law changed last year, however, and now claimants who are begin paid severance are ineligible to collect unemployment benefits during the time frame when they are receiving severance payments. If they receive a lump sum severance payment, then the Department of Labor will determine how many weeks of salary would be covered by the severance payment, and the claimant will be disqualified for that time frame.

A more complicated issue is whether a person can receive unemployment benefits when they are fired from a company and then negotiate a settlement in return for signing a release stating that they will not sue for discrimination or sexual harassment or similar illegal conduct, where the person actually was subjected to such discrimination or harassment. In those cases, a strong argument can be made that the monies received are not severance payments for the loss of the job, but rather compensation payments for releasing a potentially viable discrimination or harassment claim. To prove such entitlement to unemployment benefits, however, the claimant typically has to file an appeal and appear before a Hearing Examiner.

In the event that you are facing such a situation, please give us a call or send us an email so we can determine if we can assist you.

We frequently receive calls from persons trying to figure out whether they should agree to mediate their discrimination or sexual harassment claims at the EEOC or the Maryland Commission for Human Relations. My answer is always the same. Yes. Because you have nothing to lose by doing so, and you may be able to resolve your case, instead of waiting at least six to twelve months for the EEOC or MCHR to conduct their investigation.

Of course, if you are not going to be reasonable and expect to obtain a million dollars, or even one-hundred thousand dollars, your case is unlikely to settle. However, if you are willing to settle if you can obtain your lost wages and perhaps some additional compensation for attorneys' fees or emotional distress, then you have a real shot of settling the case, as long as your employer is also willing to be reasonable. In my recent experience, we have settled nearly 80% of our mediations, in amounts ranging from approximately $7,500 to $75,000, depending on the extent of the damages and the strength of the case.

Some attorneys don't like for their clients to participate in mediation because they believe that they are providing "free discovery" to the employer, effectively tipping their hand before litigation has even started. In my view, that is not a real issue, because you will have to provide that information to the employer in the discovery process anyway, so you are not giving the employer any unfair advantage if the case does not settle.

Should you bring an attorney to the mediation? Absolutely. Because otherwise, you simply don't have the necessary experience to value your case and to negotiate the best possible settlement. You also will not have familiarity with the law and, possibly, with the mediators and opposing counsel. Finally, it is advantageous to have someone to provide emotional support when dealing with such a tense and emotional event.

One of the most frequently asked questions in our office is what happens if you lose the initial unemployment appeals hearing? Or, what if you win the hearing and the employer files an appeal? The next step in the process is an appeal to the Board of Appeals -- a three judge panel based in Baltimore that reviews the decisions of the lower hearing examiners. In a nutshell, you must file a request for an appeal with the Board of Appeals, explaining why you believe that the hearing examiner's decision was incorrect. In the vast majority of cases, the Board of Appeals simply affirms the original decision after reviewing the recording of the first hearing. In rare instances, however, the Board of Appeals will schedule a hearing to review the case. When that happens, the case is reargued again in front of all three judges, although the Board may or may not allow the parties to present new evidence or testimony.

After the Board issues its decision, the losing party has the option of appealing to any Circuit Court in Maryland. This is a complicated process involving the filing of a notice of appeal, then the filing of an appellate brief and finally oral arguments before a Circuit Court judge.

If you are considering filing an appeal in the Circuit Court, we may be able to assist you, although you should be aware that because of the amount of time and work involved, our fees for such representation are fairly substantial, typically between $1,500 and $2,000.00.

When a person files an EEOC charge, the first step in the process -- usually several months after the charge is filed -- is for the EEOC to contact the claimant and the employer to see if both sides are willing to go to mediation to try to resolve their dispute before the EEOC commits its resources to investigating the allegations. Generally, a third party, called a mediator, works with both parties at the EEOC, often for several hours, to try to reach a resolution.

During the mediation, each side will present its view of the issue, and the mediator will work with each side in separate rooms to attempt to work out a settlement. At the end of the process, the parties either reach agreement or they don't, in which case the EEOC will send the case to the investigation stage. The mediation process, unlike arbitration, is non-binding; that is, the mediator does not impose a decision on the parties, but he/she attempts to present a solution that is acceptable to both parties.

At the Law Office of Andrew M. Dansicker, we represent claimants in mediations involving employment discrimination and sexual harassment every few weeks before the EEOC and have had great success in managing the complex process of mediation with exceptional results. In fact, we have settled approximately 80% of the mediations that we have handled for claimants. First, we discuss your case with you and review your documentation so that we can determine the strength and potential value of your case. Second, we prepare you for the mediation, as you will frequently be required to present your story to the opposing party. Finally, we negotiate for you in an effort to obtain the best possible results.

Don't make the mistake of trying to handle a mediation on your own. The employer will likely be represented by experienced counsel, and unless you know how to value your case and negotiate with opposing counsel, you are likely to walk away frustrated.

Perhaps one of the most common questions that I get from potential clients is whether the harassment that they have been subjected to at their job is illegal. Employees frequently assume that harassment, such as being called names or being exposed to curse words or being subjected to yelling and screaming, is illegal. In Maryland, however, as in most states, harassment is only illegal if the harassment is sexual in nature, or if it is racial or religious or age-based. In those instances, the harassment violates state and/or federal anti-discrimination laws. Merely being treated badly by your employer, however, is not illegal. While it may be unethical and unprofessional, employers can treat their employees badly, and if the employee does not like it, then the employee has an option -- look for a new job!