Articles Posted in General Employment

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.

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.

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.

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.

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.

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.

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.