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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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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11350 McCormick Rd #705
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