Maryland Employment Lawyer Blog

With tough economic times upon us, I have been meeting with more and more employees and executives who have been asked to sign severance agreements. I am often asked, why is my employer so adamant that I sign such an agreement? Is is because I have a strong potential lawsuit against them? Are they required to do so under Maryland law? Are they just being nice to me?

It's never easy to answer that question, but one thing is for sure -- there is no legal requirement, under Maryland law or federal law, that an employer provide an employee with a severance agreement. In fact, many employers provide severance agreements because they want to buy peace with the employee and not have to worry about a potential discrimination charge or lawsuit in the future. That does not mean that the employee actually has a valid legal action -- it just means that the employer does not want to have to worry about any such lawsuit in the future.

Finally, some employers provide severance agreements because they want to maintain a strong reputation in the community and among their employees for treating their employees with respect, even when they fire employees. To that extent, some employers do want to do the right thing, and some employers do genuinely care about their employees and want to soften the blow from an unexpected termination.

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What's going on in Maryland? From Salisbury to Hagerstown, from Baltimore to Columbia, I have been receiving more and more telephone calls and emails from employees, often executives or managers, who are being fired or laid off from their jobs. This is not surprising in light of the growing weakness in the economy. So what can an attorney, such as myself, do for you if your employer gives you a severance agreement and asks you to sign it?

When I am contacted by an employee who has just been handed a severance agreement, I have three goals. First, I want to determine if the employee would be giving up a potential legal claim or lawsuit by signing the severance agreement. Have you been paid all commissions and bonuses that you are due? Have you been subjected to discrimination? Second, I want to explain to the employee the pros and cons of signing the agreement, and the legal and practical consequences of each provision in the agreement. Is there a non-compete or confidentiality provision? Are the provisions mutual? Finally, I want to see if there are any points that may be negotiable with the employer that might benefit the employee. Can we negotiate for a larger severance amount? Any additional benefits?

Ultimately, after I consult with you concerning your proposed severance agreement, you may not be able to obtain additional benefits, but you will certainly understand the pros and cons of signing the severance agreement, and you will understand the practical and legal consequences of your decision.

So much do lawyers charge for analyzing proposed severance agreements and consulting with employees about such agreements? I cannot speak for other attorneys, but I usually charge hourly, and I typically will spend between one and three hours reviewing the proposed agreement and consulting with my client, depending upon the complexity of the agreement and whether there are significant negotiations with the employer. Ultimately, such review and consultation usually costs between $225 and $350, although a complicated negotiation may be more expensive.

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With the economy struggling, especially in Western Maryland, the Eastern Shore and in Baltimore, corporate managers and executives are increasingly facing lay-offs and firings. In many circumstances, employers want to protect themselves against any possible future lawsuit, so they offer severance agreements to employees in return for a release and a promise not to sue the corporation in the future. While these severance agreements may seem straightforward, it is usually in an employee's best interest to have an attorney review the proposed agreement, even if only to explain what you are receiving and what you are giving up by signing such an agreement. In addition, such agreements sometimes contain confidentiality and non-compete agreements that may have a significant effect on your future employment. If presented with such an agreement, it is nearly always worth paying an attorney for an hour or two of his or her time to make sure you don't get bamboozled by your employer.

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I am frequently asked questions about sexual harassment, wrongful termination, employment discrimination and failure to pay overtime and wages, but I have had several people contact me in the past few days to ask me questions about termination vs. resignation. This is always a delicate area, because there are no hard and fast rules.

In the workplace, a standard practice has developed -- employees typically give a two-week notice when resigning, and employers often give a two-week notice when terminating a person's employment. From a legal viewpoint, these standards are arbitrary. An employee can quit without giving any notice, and an employer can fire an employee without giving any notice. There are simply no laws mandating such decorum in the workplace.

An interesting question that sometimes arises is as follows: if an employee gives a two-week notice, and the employer tells the employee not to work the two weeks -- and does not pay the employee for those two weeks -- can the employee file for unemployment compensation, even though the employee resigned (which would normally disqualify an employee from receiving unemployment). While there are no hard and fast rules, Maryland unemployment decisions concerning that issue have generally found that the employee is eligible for unemployment, but only for two weeks. After that date, the employee would not have been working anyway because of the employee's resignation, so any unemployment benefits would cease after the two week period.

So, what should a smart employee do? From a common sense viewpoint, it is never wise to burn bridges, so give a two-week notice. If your employer chooses not to honor that two-week notice, you can always file for unemployment, but even if you don't want to take that route, you will probably be better off leaving an employer on good terms.

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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.

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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.

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