In the last several months, we have noticed a significant up-tick in the number of individuals who call us to represent them at the Equal Employment Opportunity Commission (“EEOC”) or the Maryland Commission on Civil Rights (“MCCR”). Because of a work-share agreement, we have also noticed that many complaints that are initially filed with the EEOC are “farmed out” (per the work-share agreement) to the MCCR for handling. Most of the time, individuals want us to represent them at a fact-finding conference or mediation -- but many are also calling us because the investigator has provided the complainant with the employer’s position statement. The position statement is the employer’s/respondent’s written response to the complaint. The EEOC or MCCR allows the complainant the opportunity to respond to the employer’s position statement by filing a written rebuttal. Since the position statement is usually written by an attorney representing the employer, the complainant often finds writing the rebuttal to be a daunting and overwhelming task, especially since the position statement typically includes legal arguments that the complainant is likely unfamiliar with. Crafting a well-composed rebuttal is a critical exercise because this is often the complainant’s final opportunity to respond to the employer’s defense before the agency makes a decision about whether an illegal action has occurred. Don’t make the mistake of spending countless hours worrying about this matter and trying to respond to the employer yourself – let an experienced attorney handle it for you. The majority of our callers reside within the greater Baltimore Metro area, but we represent clients throughout the state of Maryland. The Law Office of Andrew Dansicker is always willing to listen to your concerns and we routinely handle all matters, including filing rebuttals to employer position statements, before the EEOC and the MCCR.
We have been representing more and more plaintiffs in EEOC mediations, as well as mediations at the Maryland Civil Rights Commission, for several reasons. First, when individuals represent themselves in a mediation, they really do not know the strengths and weaknesses of their cases, so they don't know how to determine a fair and reasonable settlement amount. Thus, we often get calls from people after their mediation, when they are having second thoughts about having settled for far too little, or having not settled because they were asking for far too much. Second, having an attorney shows the employer that you are serious, and that you have convinced an attorney of the merits of your case. We strongly believe that this fact results in significantly higher settlement amounts. Finally, having an attorney represent you at a mediation greatly reduces the pressure and stress that you will face when trying to handle a mediation on your own. It is important to remember that the mediator and the staff in the mediation office are not on "your" side -- they are required to be neutral, and the reality is that they have a self-interest in making the case settle, whether the terms are fair to you or not, because they measure their success by looking at how many cases they settle.
So, if you have an upcoming mediation scheduled, or have been asked if you want to participate in mediation, give us a call immediately, and we will discuss the pros and cons of retaining us to represent you at mediation. If you retain our services, we will meet with you to learn the details of your case, present you with our fair analysis of the strengths and weaknesses of your case, and tell you what we think a fair settlement value would be, assuming that the employer is willing to negotiate in good faith. We will also prepare you to talk during the mediation, and we will accompany you to the mediation and negotiate on your behalf. If you have any questions about mediation, please feel free to call us for a free initial telephone consultation.
In any given month, we receive at least two to three dozen inquiries from individuals who are employed in the public sector in Maryland -- individuals who work for Baltimore City, one of the counties, a state agency, or even practitioners who are being investigated by the Maryland Board of Nursing or the Maryland Pharmacy Board. Invariably, these individuals contact us because their employer has taken, or is about to take adverse action against them. These adverse action range from suspensions to demotions, but often unfortunately also involve recommendations for termination. The workers who call us are understandably upset by what is happening and need guidance and help at a desperate and chaotic time in their lives when they are often unable to think clearly for themselves.
We are pleased to report that we continue to expand our practice in this area and have successfully dealt with many local and state agencies on a recurring basis. Recently, we were able to clear a pharmacy tech of all charges in exchange for taking two on-line courses. Our client was terrified of losing his ability to practice, but with our help, his license was not suspended or terminated. We also represented a Baltimore City school teacher with nearly thirty years of experience who was recommended for termination. We contacted the School Board and asked for a clarification of their intention to terminate her employment. A few weeks later, the recommendation was rescinded, and our client was allowed to resume work. In still another recent matter, we represented a Baltimore County worker who had been accused of harassing a coworker and ultimately was recommended for termination. Our client maintained that he was innocent of the charges. The county initially showed no interest in trying to settle the matter, but after the initial hearing, the county approached us about settling the matter. We are happy to report that our client is now back at work!
We often receive calls or emails from potential clients who want to file an EEOC charge or have already filed an EEOC charge and are confused about the process. We generally do not assist people with filing an EEOC charge, but we are often retained by clients to assist them at various points during the EEOC process. So the following article will briefly explain the EEOC process and where we can get involved and assist you.
The first step is filing an EEOC charge (or complaint) against your current or former employer for discrimination or harassment or retaliation. You can do so by filling out a form on the EEOC's website (eeoc.gov) or by going in person to the EEOC's office on South Howard Street in Baltimore City (which we highly recommend). Your charge must be filed within 300 days of the date of the harassment or retaliation or termination, and the EEOC intake investigator will help you fill out the necessary forms.
After your charge is filed, the EEOC will normally send a copy to your employer and ask if they want to participate in the EEOC's mediation program. If your employer wants to try to mediate the matter, we always strongly encourage our clients to agree to mediation, because it often results in a resolution of the matter. That is the first point in the process where we are often hired by clients to represent them, as we are very familiar with the mediation process and can assist you with analyzing the strengths and weaknesses of your case and negotiating with your former employer (and their attorneys). If the employer does not agree to mediation, then the employer will be required to submit a position statement, which is a written statement of their response to your allegations. You may then be asked to submit a rebuttal to the employer's position statement. That is the second point in the process where clients often hire us to assist them, because we frequently draft rebuttal statements.
The case will then be assigned to an investigator who will investigate the case, but that process often takes 12-24 months to complete. In some cases, the investigator will conduct a "fact-finding conference" where the investigator has both parties meet with the investigator at the EEOC to discuss the allegations and the facts underlying the case. That is the third point where clients often hire us to represent them. Finally, the investigator will issue a decision, and the EEOC will either find "cause" to believe that discrimination or harassment or retaliation has occurred, or the EEOC will not find "cause" and will simply issue you a "right to sue" letter, which means that you have 90 days to file suit in court or your rights will be lost forever. That is the final point where we are often retained by clients -- either to participate in the "conciliation" process if the EEOC has found "cause", or to review a case to determine if we want to take the case to court.
If you have any questions about your EEOC case or filing an EEOC case, give us a call or send us an email and we will try to assist you.
Typically, when a city, county, or state worker is subjected to adverse action, such as a suspension, demotion, or termination, the worker has certain administrative appeal rights after the action has been taken. We frequently represent such workers, including employees of various school systems and state and city departments, and have established an excellent track record assisting our clients. Most recently, we were able to assist a social worker working for the Maryland Department of Social Services who after several years of successful tenure was unexpectedly discharged for what we argued was a relatively minor infraction. We challenged the termination and pursued the appeal aggressively. Within a short period of time, we were able to put the employee back in their original position but under a different supervisor. Our client has been able to resume his career and, suffice to say, our client couldn’t be more satisfied. If you are in a similar situation, give us a call for a free telephone consultation.
We are excited to announce that Andrew Dansicker was one of only a handful of Baltimore metropolitan area plaintiff's employment attorneys recognized last week in the Baltimore Sun and Washington Post as a Top Rated Lawyer as chosen by LexisNexis Martindale-Hubbell, the company that has long set the standard for attorney peer review ratings. The ratings were published in a special section recognizing those attorneys who have attained AV Preeminent rankings by Martindale-Hubbell. Mr. Dansicker was also quoted in the Baltimore Sun earlier last week in an article about the pending sexual harassment case involving John Leopold.
We frequently represent federal employees, including federal employees working for Social Security, Postal Service, Army, Navy, Homeland Security and other federal agencies, in various EEOC matters, including discrimination, sexual and racial harassment and retaliation. We are happy to report that in the span of a short period of time, we have been able to help several USPS employees who were treated disparately and unfairly. These workers turned to us at a difficult time in their lives, and we were able to provide necessary and long overdue relief. For example, in one case involving pregnancy discrimination, we successfully negotiated for relocation, payment of attorney’s fees, and a significant cash settlement. In another case involving failure to accommodate a disability, we secured the proper accommodation, restoration of leave, and a cash settlement. Importantly, our clients achieved closure and have been able to successfully resume their careers with the Postal Service.
In an earlier blog entry from September of 2010, we reported that when a claimant has misreported his or her wages to the Department of Labor, Licensing and Regulation ("DLLR") while seeking unemployment insurance benefits, it is difficult for us to reverse the decision. Typically, when a claimant fails to accurately report his or her earnings, the DLLR has the right to recoup any benefits paid out as a result of the inaccurate phone or web certification. Consequently, in such cases, the DLLR will issue a finding of fraud, which becomes a part of the claimant's state record. Such a finding can be troublesome to anyone seeking employment, whether in the public or private sector. We are happy to report that through our involvement in an appeal, the DLLR Board of Appeals recently issued a favorable decision that now often allows us to successfully argue for the removal of fraud. Therefore, if the DLLR is demanding for you to pay back benefits, citing that you have committed fraud, call us to help you.
Sometimes, an employer's adverse action against a worker has consequences beyond the employer/employee relationship -- consequences that can impact one's profession. For example, we regularly defend nurses before the Maryland Board of Nursing ("MBON") concerning alleged violations. When a nurse has been counseled or discharged by the employer for a work infraction, the conduct may be reported to MBON. MBON, then, often seeks to investigate the alleged impropriety and can subsequently take action, including suspending or revoking the nurse's license. This process is slow, taxing, and often stressful since the outcome of the investigation and the impact on the nurse's license is uncertain. We are often called on to assist navigating through this arduous journey because the nurse realizes the potentially serious outcome. Action against a nurse's license can severely hamper one's ability to practice, so it is imperative that you get all the help you can in order to prevail. MBON does a good job advising nurses of their right to counsel, but not everyone heeds their advice, thereby compromising their ability to defend themselves. Make sure you follow MBON's advice -- don't go it alone -- hire us to help you.
We are receiving a large volume of calls from state and federally employees with pressing employment situations. They are workers who are facing serious adverse action -- demotions, suspensions, and most frequently, terminations of employment. Our law firm has been quick to respond to these workers' needs, and we are happy to report that we have established a stellar resolution record.
In some cases, our involvement early on has resulted in immediate reversal of the employer's action. Sometimes, this can be accomplished by a phone call or a well-crafted letter. For example, we recently assisted a Baltimore County worker employed in the school system who was facing a multi-step demotion, resulting in thousands of dollars in lost income annually. We immediately stepped in and the worker's position and salary were reinstated.
In other situations, when a phone call or letter do not suffice, we arrange for face-to-face meetings with the employer, sometimes through settlement conferences, and there we are typically able to achieve an outcome that the worker and we believe is desirable and just. In one recent case involving a Maryland Department of Transportation (MDOT) employee of twenty years, we were successfully able to convince the agency to conditions and terms that the agency disclosed had not previously been agreed to for someone in a similar work position as our client. In a case involving a Baltimore City Department of Social Services (DSS) worker with a most troublesome performance record, we successfully obtained settlement that included monetary compensation and, since the worker had no desire to return to the department, the department's termination for gross misconduct was converted into a voluntary resignation with a favorable reference -- all to make sure the worker's future employment prospects, whether public or private sector, were not hampered in any way.
Amicable resolutions are unfortunately not always attainable. Therefore, in those situations where litigation is the best way to pursue a matter, our zealous representation and experience provide our clients with the voice they need and require to be properly heard and get their matters resolved. In another recent example, we assisted a long-term Baltimore County teacher with a daunting task. Because of the difficulty of the matter, we realized that the case would likely have to go to hearing. The matter settled, on the county's initiative, literally hours before hearing, with the county agreeing to our demands.
Employment terminations are unfortunately inevitable and they constantly happen. If you have been wronged and face adverse action, instead of taking matters into your own hands, call on us to help you during this critical and daunting time. Without the proper know-how and experience, your matter can be severely compromised.
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.
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!
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.