Maryland Employment Lawyer Blog

Severance Pay and Unemployment In Maryland

2010-04-30T18:34:19Z

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.

Does EEOC/MCHR Mediation Work?

2010-02-19T05:05:02Z

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.

What Happens If You Lose Your Unemployment Appeal?

2010-02-17T02:48:39Z

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.

EEOC Mediation in Baltimore, Maryland

2010-02-16T02:35:49Z

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.

When Is Harassment Illegal On The Job In Maryland?

2009-12-01T04:55:33Z

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!

Hiring An Employment Lawyer In Maryland

2009-08-22T22:41:41Z

I get a lot of questions from potential clients about the process of hiring an employment attorney -- are our discussions confidential? Is there a fee for an initial consultation? How long will it take me to return your call or email? So let me review the process so to give you a better idea of how my law office works.

We receive between 150 and 200 telephone calls, emails and referrals every month. Usually, my assistant, Pam, will interview you to get the basic details that I need to determine whether your employment situation. I do not charge any fee for her to conduct the intake interview. She will ask for your name, contact information, age, size and location of your employer and the details of your problem. Everything you say to her is strictly confidential -- whether you end up retaining my services or not! Even if you choose another attorney, I am forbidden from revealing any of your information to anybody outside of my law office.

Pam will then type up an intake form with your information, and I will review it as soon as possible. Sometimes, if I am caught up with my work, I will call you or email you the next day. Sometimes, it may take as long as a week. If I don't think you have a case, or if I cannot help you, because your employer is out of state, or I have a conflict of interest, or its not the kind of matter that I handle, I will usually send you an email telling you my thoughts. If I want to discuss it more and need more information, I will let you know. If I think you have a potentially strong case, I will set up a meeting at my office. Once again, I do not charge for a meeting, unless it is to review a severance agreement or noncompete agreement or for a similar situation.

We will then discuss whether I can represent you and how I would do so, i.e. for an hourly rate, or a contingency fee, or a mixture such as a hybrid fee, which is a reduced hourly fee combined with a reduced contingency fee. It is important to keep in mind that of every 200 potential clients that contact me each month, I only agree to represent approximately 15, and most of those are for unemployment appeals or to review severance agreements, employment contracts or non-compete agreements.

Recent Successes Of Maryland Employment Law Cases

2009-05-11T03:27:32Z

Well, I recently noticed that we have not posted any blog entries in several months regarding our Maryland clients -- probably because we have been too busy settling and winning cases! In the last four months, we have reached favorable settlements for a number of clients, including the following:

* We obtained a favorable settlement on behalf of a pharmaceutical representative who resigned her job on the West Coast to accept a more favorable position with a different employer in Baltimore County, only to have the new employer rescind its job offer -- after it was too late for her to return to her previous job. The new employer failed to realize that our client did not meet one of their job requirements, but once an employer makes a job offer, and the offeree accepts the offer, the new employer is limited in its ability to rescind a job offer.

* We obtained a large settlement for an administrative assistant in Baltimore County who was subjected to explicit sexual harassment and unwelcome touching by her boss -- a senior executive at a financial services company. When our client complained about the harassment to other senior management, she was told there was nothing that could be done because of his position in the company. After contacting the company, we quickly negotiated a favorable settlement for our client.

* We negotiated a favorable settlement for a package delivery driver in Harford County who was not paid overtime for the time he spent each morning and evening preparing his truck and finalizing paperwork for his employer.

* We obtained a substantial settlement for a computer programmer at a local university in Baltimore who was subjected to disability discrimination under the Americans with Disabilities Act and was wrongfully terminated from his job after he refused to provide private medical information to his employer. We prepared our client's charge and filed it for him with the EEOC, assisted our client in his dealings with the EEOC and eventually negotiated a settlement directly with his former employer and the EEOC.

* We successfully represented more than two dozen unemployment claimants in lower appeals hearings and hearings before the Board of Appeals in Baltimore City at the Department of Labor and Licensing.

* We represented more than two dozen clients in negotiating enhanced severance agreements or working out disputes relating to non-competition or non-solicitation agreements with their former employers.

* We obtained a large settlement for a client from Florida who accepted a job offer from a large educational organization in Baltimore, rented a new home in Baltimore, and, while accompanying a moving van with his possessions to Baltimore, was notified that the job offer had been rescinded because the new employer learned that he had previously filed for bankruptcy. While employers can sometimes take such information into account when deciding whether to hire a person for a job, we successfully argued that the employer could not revoke a job offer based on the fact that it learned about the bankruptcy after our client had accepted their job offer.

* We obtained a significant settlement for a client whose employment was terminated in violation of the Family and Medical Leave Act ("FMLA") while she was on maternity leave.

* We obtained a significant settlement for an administrative employee of a lobbying organization in Maryland who was unlawfully terminated based on her race.

Summary Of Three New Cases We Recently Filed In Federal Court In Baltimore, Maryland

2009-01-09T02:35:42Z

After not filing any federal lawsuits in nearly a year, we have filed three federal complaints in the past few weeks, all concerning different areas of employment law. The first case was filed suit on behalf of a single mother who was fired from her job as a department manager at Sears after reporting that several of her employees were subjected to blatant sexual harassment by a higher-level manager. Soon after she complained, she was told to mind her own business by the store manager, and then she was written up for petty or phony reasons several times before being fired for false reasons. Even though she was not sexually harassed, she is pursuing a retaliation claim against Sears for harassing her and firing her in retaliation for her reporting sexual harassment.

The second case was filed on behalf of a gentleman who was working as a driver for Federal Express but was not paid any wages or overtime for the time he spent preparing to make deliveries before and after his shift. Then, when he complained to his manager about not being paid, his employment was terminated for no reason.

Finally, we filed a disability discrimination case against the Baltimore City Fire Department on behalf of a young woman who suffers from a rare bone condition that caused one of her legs to be shorter than the other leg. Despite the fact that she walks with a limp, she passed the extremely challenging physical agility test and was hired to be a firefighter. However, shortly before she was to start at the fire academy, she was informed that her hiring had been "a mistake" and therefore her employment was terminated. She later learned that the Fire Chief, when reviewing the new hires in an upper-level management meeting, referred to her as a "cripple" and instructed the human resources director to terminate her employment.

Each of these cases presents its own challenges, both factual and legal, but the diversity of issues and clients shows the breadth of the employment law practice that we are pursing at the Law Office of Andrew M. Dansicker, LLC.

Overtime Wages Under Maryland Law

2008-10-25T06:30:48Z

A quick lesson from a wage and overtime case that I just settled earlier this month -- if your employer asks you to undertake a task that benefits the employer, then the employer may be required to pay you for that task. In this case, my client drove a truck for a national healthcare services corporation delivering medical supplies to patients at their homes. Each morning, however, his employer required him to drive his car to a warehouse to pick up the truck, make sure it was loaded with medical supplies, and then drive it to the employer's office, where he would receive his daily delivery schedule. The employer only paid my client from the time he checked in at the employer's office until the time he left the last patient's house. The employer did not believe that my client was entitled to be paid for the "travel time" incurred driving the truck from the warehouse to the office, but several courts that have considered similar factual scenarios have held that such time is compensable under the Fair Labor Standards Act ("FLSA"). Fortunately, we were able to resolve the matter without the need for litigation, and my client received a favorable settlement.

Employment Offers Cannot Always Be Withdrawn Under Maryland Law

2008-10-24T06:13:13Z

During the past six months, I've settled three cases involving similar situations that most employers -- and potential employees -- do not even realize violates Maryland law. Here's what happens: Company A recruits an employee from Company B, or advertises for an open position, and an employee from Company B agrees to work for Company A. The employee is given a verbal or written offer to work at Company A and accepts the offer. The employee then gives his or her two-week notice, and Company B hires a replacement for the employee. At the last minute, the employee receives an email or a telephone call from Company B informing the employee that the job is no longer available, or that the job offer has been rescinded. The employee is left without a job and will not qualify for unemployment because the employee voluntarily quit his or her previous job.

Under Maryland law, it is illegal for an employer to make a "negligent misrepresentation" to a potential employee if the employer knows that the potential employee is likely to rely upon that misrepresentation by quitting their current job, and if the potential employee actually quits his or her current job to his or her detriment. In plain English, if a prospective employer offers you a job, and you tell the employer that you are going to quit your current job, and if you actually quit your current job and then find out that the prospective employer has changed his mind or is no longer willing to hire you, then you can file suit for negligent misrepresentation.

Update on Maryland Unemployment Appeal Cases

2008-09-19T05:03:51Z

As regular readers know, I handle numerous unemployment appeals on behalf of persons who have either been denied unemployment benefits on the grounds that they engaged in misconduct or gross misconduct or voluntarily resigned their job. I thought I would simply list a few of my recent cases to give you an idea of the types of issues that sometimes arise in unemployment appeals hearings:

* Claimant was disqualified for gross misconduct for allegedly being a no-call/no-show on two occasions. At the hearing, the employer failed to produce any evidence to refute the claimant's testimony that he had, in fact, called in on both days where he had not come to work in compliance with the employer's policy. The gross misconduct finding was reversed.

* Claimant was disqualified for gross misconduct for allegedly fighting with her manager and walking off the job without permission. At the hearing, the manager admitted that he instigated the fight and began cursing at the claimant, and a coworker admitted giving the claimant permission to leave the job early. The gross misconduct finding was reversed.

* Claimant was disqualified for gross misconduct for allegedly violating the company's lateness policy on three occasions. At the hearing, the claimant proved that he had only been late without permission on two occasions, one of which was a family medical emergency, and the other was only one-minute late. The gross misconduct finding was reversed.

* Claimant was disqualified for voluntary resignation where he submitted his resignation letter after the employer changed his schedule. At the hearing, the claimant proved that the employer was forcing him to work nights thereby leaving him with nobody to watch his children, as his wife's job required her to work nights. The hearing examiner found that the claimant had good cause for resigning and allowed full benefits.

* Claimant was disqualified for allegedly violating company's ethical rules. At the hearing, claimant demonstrated that she was never made aware of the ethical rule that she allegedly violated, nor was she ever warned not to engage in the underlying conduct. The gross misconduct finding was reversed.

Does Fighting Disqualify An Employee From Receiving Unemployment Benefits In Maryland?

2008-06-30T05:54:44Z

Many people who contact me to challenge the denial of their unemployment benefits are pleasantly surprised to learn that even though they've been found to have engaged in gross misconduct because they got into an altercation with their supervisor, they may still be entitled to unemployment benefits. The reason is simple -- when a hearing examiner conducts an appeal, the examiner must determine if the employee engaged in gross misconduct, simple misconduct or no misconduct, and therefore the examiner analyzes several different factors, such as whether the employee initiated the altercation or was provoked by the supervisor, whether the employee used profanity, and if so, whether the supervisor used profanity, whether the employee made any threatening statements or yelled at the supervisor, whether the altercation occurred in view of customers, and whether the altercation was disruptive. If the answers to these questions are negative; in other words, if the employee did not start the fight, if the employee did not use any profanity or threatening language, if the altercation took place out of sight of customers and if the altercation was not disruptive, then the employee may be entitled to unemployment benefits -- even though the employee was involved in an altercation with a manager.

Maryland Employers Routinely Violate FMLA

2008-06-30T05:38:32Z

Perhaps its my imagination, but its seems like I am getting at least two or three inquiries each week from persons who believe they were improperly terminated in violation of the Family and Medical Leave Act ("FMLA") -- and some of them may have a case! Just last week we settled a case where an employee of a retail store in Towson suffered a serious leg injury while working and went to the emergency room, where he was told that he would need surgery. He contacted his direct supervisor, advised him that he was in the hospital and told him he would likely be out of work for at least a few weeks. Two days later, when the employee stopped by the store to pick up the workers comp paperwork, he was told that his employment was terminated, because he "set a bad example for the other employees" by needing so much time off. In light of the fact that the employee was a full-time employee who had worked at the store for more than a year and suffered a substantial injury, he was entitled to twelve weeks of unpaid leave -- instead, his employment was terminated. We quickly negotiated a favorable settlement with his employer.

Ultimately, while the FMLA poses many obstacles for employees and is seemingly designed to benefit only those employees who have worked for large corporations for more than one year, the FMLA may protect you if you are fired because you are suffering from a serious injury or medical problem or need to care for an immediate family member.

If You Quit Your Job, You Can Still Obtain Unemployment Benefits In Maryland

2008-05-25T06:42:04Z

Sometimes people come to me and ask whether they can obtain unemployment benefits in Maryland if they voluntarily quit their job. The short answer is, it depends. If you quit for a better job, then you will not qualify for unemployment. The same is true if you quit because your spouse obtained a higher-paying job elsewhere. If the reason you quit, however, was because you were being mistreated or harassed, or if you were promised a raise that was never given, then you might qualify for unemployment. Likewise, if you quit your job because you were asked to perform an unethical or illegal act, you will likely qualify for unemployment benefits. Moreover, if you quit your job because you are unable to keep working for medical reasons or an injury, you may qualify for unemployment. Ultimately, if you are unsure whether you qualify for unemployment benefits, contact me for a short -- and free -- consultation and I will try to answer your questions.

Maryland Law Protects Against Breach Of Employment Contracts

2008-05-24T06:09:34Z

Unfortunately, most employees are not afforded the luxury of entering into a written employment contract with their employer. For those who do, however, keep in mind that your employer cannot arbitrarily terminate your employment. If the employment contract is for a one-year term, then your employer can only terminate your employment prior to the end of that one-year period for "cause" -- a term that is either defined or not defined in the contract. If the term "cause" is defined, then those are the ony reasons that your employer can terminate your employment. If the term "cause" is not defined, then the employer must prove that you breached the employment contract, that it conducted an objective and reasonable investigation of your alleged breach, and that there was substantial evidence that you breached the contract. Ultimately, the key in analyzing breach of employment contract situation is to carefully read the termination provisions set forth in the contract and then apply the facts to the contractual language.