Posted On: January 27, 2008

Sexual Harassment In Maryland: What Makes A Strong Legal Case?

As a Maryland employment attorney based in Baltimore County, I know that one of the most common telephone calls that plaintiffs' employment attorneys receive is from a distraught, frustrated woman (or, once in a while, a man) who believes she has been sexually harassed and wants to pursue legal action against her employer. In evaluating such cases, experienced employment lawyers ask some of the following basic questions:

a) Was this a one-time incident or a pattern of inappropriate conduct? Unless a one-time incident is severe, such as a sexual assault, most courts will not allow a sexual harassment claim to proceed to trial unless there has been a pattern of incidents, whether verbal harassment or physical or a combination. Obviously, the more incidents, the stronger the claim.

b) Did the plaintiff complain to her supervisor or manager or the human resources department about the sexual harassment, and if so, what was done in response to the complaint? If the plaintiff failed to complain about the harassment, then the employer will usually not be held liable. Similarly, if the plaintiff complained and the employer disciplined the harasser, and the harassment stopped, then the employer would likely not be held liable. On the other hand, if the plaintiff complained, and the harassment continued, or the plaintiff was retaliated against, then the plaintiff may have a strong case.

c) Was this purely verbal harassment, or was touching involved? Obviously, the worse the language and the sexual comments, the better the legal case. When inappropriate touching is involved, the case becomes much stronger, especially if there is repeated unwelcome touching.

d) Is the plaintiff still working for the employer, or has she quit or been fired? When a plaintiff quits her job, her legal claim for damages may be diminished; on the other hand, if the plaintiff stays at the job, the employer will argue that any harassment must not have been that severe. The strongest legal case is usually presented where the employer terminates the plaintiff for complaining about the sexual harassment (or makes her job so miserable that she had no choice but to quit).

While none of these questions is the "be all and end all" to any sexual harassment claim, the answers to these basic questions help an employment attorney determine the strength and potential success of any sexual harassment claim. If you would like an experienced attorney to evaluate your employment situation and advise you about whether you make have a viable legal claim, please feel free to contact me at anytime.

Posted On: January 26, 2008

At-Will Employment -- Maryland's Basic Law (and the Limited Exceptions That Might Apply to You)

When you're hired, your employer will often tell you that you are an "at-will" employee. The next time you usually hear that phrase is when you're fired. Employers rely on this "legal principle" to justify firing employees for any and every possible reason. In fact, employers often say that because Maryland is an "at-will" employment state, they can fire any employee for any reason at any time. While there is a lot of truth to this statement, there are important exceptions.

So what does "at will" employment really mean? Well, it is true that an employer can terminate your employment for nearly any reason. If an employer does not like your attitude, you can be fired. If you make a single, minor mistake on the job, you can be fired. If you fail to follow a rule or come to work five minutes late, you can be fired. If you tell a dumb joke or make an inappropriate comment you can be fired. In other words, you can be fired for nearly any reason that your employer wants to fire you.

Luckily, there are several important exceptions. First, your employer may not be able to fire you if you have a written (or sometimes verbal) contract that limits the reasons for termination. Second, you cannot be fired for discriminatory reasons, such as your age, gender, race, national origin or disability. Third, you cannot be fired for filing a workers compensation claim, or for demanding proper wages or overtime pay, or for taking time off for medical reasons or to take care of family members (depending on the size of your employer). Finally, you cannot be fired if your termination would be contrary to public policy, such as if you are a whistleblower or are engaging in conduct that is protected by law.

Ultimately, while it is true that Maryland is an "at-will" employment state, a good lawyer can help you determine if there are any legal exceptions that may apply to your situation.

Posted On: January 11, 2008

Maryland Unemployment Law -- A Stacked Deck?

When it comes to areas of Maryland law that are fundamentally flawed, that scream out for statutory revision, that overwhelmingly favor employers, several topics always come to mind: a) overtime laws that do not allow liquidated or punitive damages, b) the complete lack of family and medical leave for employers with less than 50 employees, and c) the broad and unfair enforceability of non-compete agreements. Few Maryland employment attorneys realize, however, that Maryland's unemployment appeals laws are structurally biased in favor of employers.

The reason for this inherent favortism is simple -- Maryland law forbids attorneys from being paid more than 1.5x the weekly benefit amount that their client would receive if their client prevails at the hearing. In other words, if an unemployed client would receive the maximum payment of approximately $340 per week, the attorney is limited to charging a fee of $510. And to charge that fee, the attorney must seek approval from the Agency. To put those numbers in perspective, if an attorney spends ten hours on an unemployment case, the attorney will be paid a maximum amount of about $50 per hour -- which is precisely why most attorneys, even employment attorneys, will not take unemployment appeals cases.

This absurdly narrow restriction on attorneys' fees is completely unjustified -- for a client who remains on unemployment for the full term, it results in a fee that totals about six percent of the total award -- well below the contingency fee percentages charged by lawyers in virtually every other type of case. And the end result is that employers show up at these hearings with attorneys or unemployment specialists, while employees have to fend for themselves, often with no understanding of the evidentiary burden they must carry to prove defenses such as "good cause" for a voluntary resignation. Unfortunately, once the hearing is finished, any further appeals are not de novo, but are based on the record created in the first appeal, so the chances for reversal are between slim and none.

While I have been fortunate enough to be successful in the unemployment appeals hearings that I have handled on a pro bono basis, its plain that the system is broke and is crying out for improvements.

Posted On: January 10, 2008

Maryland Employment Law Blog -- Who? Why? What?

After nearly 15 years practicing litigation in large and small law firms, I've decided to open my own employment law shop -- sexual harassment, employment discrimination, overtime pay, bonuses and commissions, breach of contract, family leave, unemployment appeals -- all the areas of law that challenge me intellectually while allowing me to actually help real people, not faceless corporations. While I've handled these types of cases for both plaintiffs and defendants in the past, this will be a different challenge because I am responsible for picking the clients, I am responsible for preparing the cases, and, ultimately, I am responsible for winning the cases. A challenge, yes, but I am up to the task!

What spurred me to pursue this risky route and give up a safe, well-paying job at a well-respected Baltimore law firm? Probably seeing how successful I have been handling a few employment cases each year, and seeing how much personal satisfaction I've received from those cases, was what convinced me that I could practice law that I enjoy practicing while making a good living. Isn't that what every lawyer wants?

So my plan is to set forth my thoughts, ideas, analyses, experiences, hopes, fears, disappointments and successes -- in other words, to communicate what it is like being a solo employment lawyer and to talk about employment law -- cases, statutes, court rulings, news stories. Anything and everything that Maryland employment lawyers and persons seeking to learn about employment law in Maryland might want to discuss. That's the plan, we'll put it into practice shortly. The end.