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Luchansky Law Celebrates 20th Anniversary Milestone

  FOR IMMEDIATE RELEASE   Towson, MD – Luchansky Law, a leading firm specializing in labor and employment law, proudly announces its 20th anniversary. Since its founding in 2004, Luchansky Law has provided expert legal counsel and exceptional client service, achieving remarkable success and growth over the past two decades.   Under the leadership of Bruce Luchansky, the firm has earned a reputation for diligence, professionalism, and compassion, offering personalized and strategic legal solutions to a diverse clientele. Employment and wage law attorneys at Luchansky Law are champions for employers and executive level employees. Recognizing that employees are the lifeblood of any business—but which often is accompanied by intricate legal complications—the firm specializes in navigating workplace challenges with a balanced approach that serves all parties involved.   “Reaching this 20-year milestone is a testament to our entire team’s hard work, dedication, and passion,” said Bruce Luchansky, Founder and Managing Partner. “We are grateful to our clients, colleagues, and the legal community for their trust and support. As we look to the future, we remain committed to delivering outstanding legal services and fostering long-term relationships.”   Companies hiring Luchansky Law tap into the experience needed to solve complex workplace issues. Unlike many law firms who offer technical or theoretical solutions that may work on paper but not in real life, Luchansky Law focuses on giving clients practical and sound legal advice. The firm combines legal knowledge and practical experience to find the correct legal answers that align with client’s business needs.   Luchansky Law will host a celebratory event later this year to commemorate this significant occasion. The event will bring together clients, colleagues, and community partners to reflect on the firm’s achievements and discuss future initiatives.   The firm’s dedication to client success and ethical practice has been the cornerstone of its enduring legacy. For more information about Luchansky Law please visit https://employmentattorneymd.com.    About Luchansky Law Luchansky Law is a premier labor and employment law firm committed to providing exceptional legal representation and client service. Founded in 2004 by Bruce Luchansky, the firm offers a wide range of legal services to businesses and individuals, focusing on workplace issues, employment disputes, and compliance. Luchansky Law is dedicated to upholding the highest standards of diligence, professionalism, and compassion in its practice. Please call (410) 522-1020, email us at info@luchanskylaw.com, or stop by our office at 606 Bosley Avenue, Suite 3B, Towson, Maryland, 21204. 

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Pivotal Digital Sep 4 No Comments
Employer's Toolbox

Supreme Court’s Upcoming Decision on FLSA Exemption: Financial Impact on Employers

The U.S. Supreme Court is about to rule on a critical issue regarding the evidentiary standard employers must meet to classify employees as exempt from the Fair Labor Standards Act’s (FLSA) overtime requirements. The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting private, federal, State, and local government employees. This decision could significantly impact employers in states within the 4th U.S. Circuit Court of Appeals’ jurisdiction, which includes Maryland, by potentially overturning stringent standards and reducing FLSA compliance costs. Employer’s Burden of Proof The Supreme Court will decide whether employers must provide “clear and convincing” evidence or just “some” evidence to prove an FLSA exemption. Currently, the 4th Circuit mandates the higher “clear and convincing” standard, making it more challenging for employers in that region to classify employees as exempt. A decision favoring the 4th Circuit’s standard could increase lawsuits from employees aiming to collect backpay, with employers facing penalties for FLSA violations. At the very least, a decision favoring the 4th Circuit will increase the administrative burden for HR professionals and raise the risk associated with employee classification decisions.  Financial Implications for Employers The FLSA exempts 19 job categories, and disputes over these exemptions are common in litigation, often resulting in significant financial consequences for employers. However, implementing a uniform standard that rejects the 4th Circuit’s stringent approach could lead to cost savings and streamlined processes, offering a more optimistic outlook for employers operating across different jurisdictions. The Supreme Court’s impending decision carries considerable implications for employers. A ruling that lowers the evidentiary burden could streamline exemption analyses and reduce compliance costs, providing advantages for businesses within and outside the 4th Circuit.   For more information about the FLSA case before SCOTUS and how it can affect your business contact (410) 522-1020, email info@luchanskylaw.com, or visit our office at 606 Bosley Avenue, Suite 3B, Towson, Maryland 21204. About Luchansky Law  Luchansky Law specializes in resolving workplace disputes for employers and employees across Maryland. Our attorneys bring extensive experience and a practical approach to protecting your rights, navigating new regulations, and ensuring compliance. Our team combines legal expertise and practical experience to solve workplace challenges and effectively meet legal and business needs.   References Smith, Allen. “Upcoming Supreme Court Decision May Make HR’s Exemption Analysis Less Costly.” SHRM, June 19, 2024.

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Luchansky Law Team Jun 21 No Comments
Employee Agreements

The Fine Print of At-Will Employment

By: AJ Esral, Esq.             “This employment is at-will, which means either party can terminate it at any time, for any reason, or for no reason at all.”             This is a standard clause that we routinely draft in employment agreements, and iterate in handbooks, in big, bold letters. And at-will employment is a staple of today’s job market, offering both employees and employers freedom of mobility.  When our clients call to confirm that they can fire a particular at will employee, they often quote back to us: “After all, I can fire an employee ‘for no reason at all,’ right?”             The thing is, at will employment is not exactly at-will. Yes, technically you can terminate the employment for no reason, but be honest – when is the last time you did anything for no reason at all?  When people make a decision, there’s always a reason.  Practically speaking, nobody terminates an employee for no reason at all.             And that’s where things get sticky.             Because while there are any number of legitimate reasons to want to terminate someone—bad work product, attendance, or because they wear blue jeans that remind you of the hours spent fruitlessly trying to find Waldo, to name a few—there are a few bad reasons to terminate someone, reasons that are illegal and could get you in trouble.             Here are the main offenders: 1. Discrimination Based on a Protected Class             This is probably the most well-known exception to at will employment. You can’t discriminate against someone based on a legally protected characteristic, which a person’s race, religious beliefs, gender, gender identity, sexual orientation, age (typically 40+), or disability, to name a few of the more prevalent ones. You can discriminate on the basis of wearing blue jeans, which is not, as of yet, a protected characteristic.  (Although in Maryland, hair texture and hairstyle are.)             Importantly, if the job requires a specific protected characteristic, then you may qualify for a narrow exception to the discrimination laws, called a BFOQ – a bona fide occupational qualification.  Indeed, Title VII (the basis for all anti-discrimination law) explicitly writes that it is not unlawful to discriminate on the basis of religion, sex, or national origin “in instances where [those are] reasonably necessary to the normal operation of that particular business or enterprise.” 42 U.S.C.A. § 2000e-2. So, for example, the EEOC has allowed the use of same-sex counselors in the treatment of special-needs clients at a social agency. Equal Emp. Opportunity Comm’n, EEOC Dec. No. 76-130 (1976). In a similar type of carveout, the Supreme Court has established a “ministerial exception” which bars ordinary discrimination claims. In other words, for ministerial employees of an institution—rabbis, Catholic schoolteachers, youth program leaders, and the like—the court won’t ever reach the merits of discrimination claims at all, deferring to the religious institution to decide on any position that serves one of said institution’s core functions. See, e.g., Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012); Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U.S. 732 (2020).             But if you don’t have a legitimate and plausible reason to exclude a member of a protected class, then be careful. You can still fire them, but you need a good non-discriminatory reason—or you risk the expense and distraction of having the employee file a complaint with the EEOC.               And it is important to keep in mind that even if you may fire someone for anon-discriminatory arbitrary reason, like disliking their blue jeans, that still doesn’t mean that you should fire them for an arbitrary reason.  It’s still bad practice because it invites scrutiny and damages overall credibility and employee morale. Even though you will prevail on the employee’s EEOC complaint, you would be better off avoiding the complaint in the first place.             Here are a few more bad reasons to fire someone. 2. Retaliation             It’s illegal to fire someone for: complaining about harassment or discrimination within the workplace, participating in an investigation, or requesting an accommodation. And if you come up with a plausible alternative reason to fire them (“Sorry, but you’re just not a good culture fit.”), but do so shortly after they did one of the above, then it will still look like retaliation, which will work against you if they ever file a claim. 3. NLRA violations             Most employers don’t know about this, but the National Labor Relations Act (NLRA) prohibits firing someone for engaging in a “protected concerted activity.” This is when employees act, or seek to act together to talk or lobby about their working conditions, such as: Wages, Hours, Safety, Scheduling, or Policies              So, you can’t fire someone for discussing pay with their coworkers, or for talking about unionizing. And this can be a bit of a hot wire, because you can’t either fire someone for talking assertively to (read: cursing out) their supervisor about working conditions. In a recent Second Circuit opinion, for example, the court upheld the NLRB’s order finding an employee’s discharge unlawful when the employee posted an expletive-laden message on Facebook attacking a supervisor for speaking to him harshly in a heated debate about unionizing. See NLRB v. Pier Sixty, LLC, Nos. 15-1841 (2d. Cir. 2017). 4. Wage and Hour Retaliation             This is another big one.             It’s very tempting when an employee asks too many questions about overtime, FLSA classification, missed breaks, or payroll errors to just show them the door. It makes for bad policy and workplace morale.  And it’s unlawful. 5. Leave Protections             Some absences from work are legally protected.             Think FMLA (for employers with 50 or more employees), pregnancy-related leave, or disability or military leave. It does happen that someone who is on legally-protected leave should be fired, for whatever reason (and often having nothing to do with performance, such as a general reduction in force). But timing the termination so that it coincides with the date they are supposed to return from

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Pivotal Digital Feb 16 No Comments
Uncategorized

Does Deducting for Leave Destroy an Employee’s Exempt Status Under the FLSA?

By: Bruce M. Luchansky, Esq.             Employers work hard to preserve the exempt status of employees whose duties meet an exempt category under the Fair Labor Standards Act and who are paid on a salary basis.  Common sense tells us that paying an employee on a “salary basis” means that employers may not make deductions from an exempt employee’s salary except in very limited circumstances.  The FLSA tells us that also: An employee will be considered to be paid on a “salary basis” … if the employee regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee’s compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.             In other words, as long as an employee does any work in a given week, that employee must be paid that week’s full salary to remain exempt under the FLSA. An employer cannot deduct from that predetermined weekly (or bi-weekly, or monthly) amount if the employee decides to take off half a day for a round of golf. But employers often face the question of whether making deductions from an employee’s PTO or other leave bank is also considered making a “deduction” from an employee’s salary that results in destroying exempt status.  The scenario looks something like this.             Phil is an electrical engineer, and is exempt under the FLSA’s professional exemption.  As part of his employment benefits package, Phil receives 120 hours of paid time off (PTO) per year.  Phil’s employer informs him at the time of hire that he is guaranteed to receive his pay of $2,000 per week.  However, when Phil takes a week of time off for vacation, will the company’s deduction of 40 hours from Phil’s PTO account constitute a “deduction” that violates the employee’s “salary basis” compensation and risk Phil’s exempt status?             No, it does not.  Phil still is exempt from overtime.  He just has used some of his PTO.             But what about after Phil has exhausted his 120 hours of PTO?  If he takes another 8 hours of leave, Phil does not have any additional PTO in his account for the company to deduct.  At this point, can the company deduct 8 hours’ worth of pay from Phil’s salary?             No—not if the company wants to maintain Phil’s exempt status.  Even once an exempt employee’s paid leave account is exhausted, the company’s deduction of any wages – as opposed to leave balance – will destroy the employee’s “salary basis” compensation.  At that point, if the company objects to Phil’s use of excess leave, the proper response is through the use of counseling or other discipline, but not through a deduction from wages.             Employers don’t lose exemptions knowingly. It’s usually because a well-meaning payroll manager decided to treat a salaried employee like an hourly one, docking pay instead of leave. A clean and straightforward PTO policy, training HR in these areas, and a discipline-first approach will keep the focus on accountability and maintaining company standards without losing exempt status for your employees.             Navigating the world of exempt employees under the FLSA and other overtime laws is tricky.  If you have questions concerning the way your company pays its employees and accounts for its paid leave, send me an email at lucky@luchanskylaw.com, or give me a call at 410.522.1020.  I would be happy to help.  

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Pivotal Digital Feb 16 No Comments
Employee Agreements

How To Leverage Non-Solicitation Agreements To Protect Client Relationships

By: Ari Lichterman, Esq. Restrictive covenants are important tools for protecting client relationships, confidential information, and competitive positioning.  But in recent years they have faced increased scrutiny—particularly non-competes—exposing businesses to unnecessary risk.  As enforcement risks grow, many businesses are turning to non-solicitation agreements as a more viable alternative. Non-solicitation agreements restrict former employees from soliciting clients or coworkers after separation.  Employers often invest substantial time and resources in recruiting, training, and developing employees, and they have a legitimate interest in retaining those investments.  Employees, in this sense, are valuable business assets.  Likewise, businesses devote considerable effort to building client lists and cultivating customer relationships, which often are central to long-term success.  Non-solicitation provisions aim to prevent former employees from capitalizing on relationships they developed on the employer’s behalf for their own competitive advantage. While Maryland courts are scrutinizing these provisions more closely, carefully tailored non-solicitation agreements tied to legitimate business interests remain enforceable.  Below are practical tips for structuring compliant agreements under current Maryland law.  Maryland’s Approach to Non-Solicitation Agreements Under Maryland law, non-solicitation agreements are generally enforceable—but only if they are carefully drafted.  Courts apply traditional common law restrictive covenant principles and will uphold non-solicitation provisions when they are reasonable and narrowly tailored to protect a legitimate business interest.  Maryland courts evaluate non-solicitation agreements under the familiar four-part test: The employer must have a legally protected business interest; The restriction must be no broader in scope or duration than reasonably necessary to protect that interest; The agreement must not impose an undue hardship on the employee; and The covenant must not violate public policy. In practice, most disputes rise or fall on the second factor—whether the restriction is appropriately tailored. Customer Non-Solicitation: Scope Matters When courts assess customer non-solicitation provisions, they focus closely on who the former employee is prohibited from soliciting.  To be enforceable, the restriction should generally be limited to customers with whom the employee actually worked or developed a relationship during their employment.  This limitation is critical because it aligns the restriction with the employer’s legitimate interest: preventing a former employee from exploiting the goodwill or relationships they helped build on the employer’s behalf.  By contrast, blanket prohibitions on soliciting any customer—regardless of whether the employee ever interacted with them—are routinely viewed as overbroad. Employee Non-Solicitation: Relationship-Based Limitations Maryland courts apply the same tailoring principles to employee non-solicitation provisions as they do to customer restrictions.  To be enforceable, an employee non-solicitation clause must be tied to actual workplace relationships the departing employee developed during their employment—not a blanket prohibition on soliciting any worker associated with the company. A Recent Example: Blue Ridge Risk Partners, LLC v. Willem The importance of narrow drafting was underscored in Blue Ridge Risk Partners, LLC v. Willem, 724 F. Supp. 3d 398 (D. Md. 2024). There, the U.S. District Court for the District of Maryland invalidated both customer and employee non-solicitation provisions. The agreement prohibited the employee from attempting to “obtain, accept or in any manner transact business with, from, or on behalf of any Clients,” and defined “Clients” expansively to include any individual or entity solicited by anyemployee of the company within the preceding 12 months.  The court found this language overbroad for two key reasons: Passive acceptance of business. The restriction barred even the passive acceptance of work from the employer’s customers. The court emphasized that an employer’s legitimate interest is in preventing an employee from usingrelationships formed during employment to “pirate” customers—not in preventing customers from choosing to follow an employee on their own. Prospective customers. The provision also extended to prospective clients. The court rejected this as untethered to any protectable goodwill, reasoning that an employee cannot exploit relationships or goodwill that never existed in the first place.  The court also struck down the employee non-solicitation provision as overbroad because it was not limited to employees with whom the former employee had any direct interaction but extended to all employees and independent contractors.  The court found this absence of relationship-based tailoring fatal, with the restriction on soliciting independent contractors underscoring the provision’s overbreadth.  Without evidence of interaction—even at trainings, conferences, or meetings—the employer lacked a legitimate interest in restricting solicitation with individuals with whom the employee had no meaningful relationship. Practical Takeaways for Employers Based on the analysis above, employers should consider the following key takeaways: Tailor restrictions to real relationships. Limit customer and employee non-solicitation provisions to individuals the departing employee actually worked with or knew. Distinguish solicitation from competition. Avoid language that prohibits passive acceptance of business or broadly restricts post-employment competition. Draft narrowly and precisely. Be cautious with prospective client restrictions, independent contractor coverage, and company-wide bans. Anchor every restriction to a legitimate business interest. The goal is to protect established relationships and staff—not to impose unnecessary restraints on employee mobility. For businesses operating in this evolving landscape, thoughtful drafting on the front end is critical.  The attorneys at Luchansky Law can help you craft strategic, compliant non-solicitation agreements tailored to protect your business interests while minimizing legal risk.  I would welcome the opportunity to discuss with you how.  For more information, call me at Luchansky Law 410.522.1020, or email me at ari@luchanskylaw.com.      

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Pivotal Digital Feb 16 No Comments
Employer's Toolbox

How to Stop Worrying and Learn to Love (or at least Accept) Reasonable Accommodations

By: Alan Glickman, Esq.             If you are anything like many employers, your reaction upon hearing the term “reasonable accommodation” will mirror the stages of grief—denial, anger, bargaining, depression, testing, and finally acceptance. Denial:            “You want me to change our policy just for you? No. That can’t happen. We have policies for a reason, so we could not offer that, even if we wanted to.” Anger:             “Forget it! If you keep pushing this, you’ll only get yourself in trouble!” Bargaining:     “Ok, look, what you’re asking for is not going to happen, but how about we work on something completely different?” Depression:     “This is a disaster! Legal even told me I can’t fire this guy. I have no I idea what I am supposed to do.” Acceptance:    “Fine, we’ll try it for a week and you’ll see you’re being ridiculous.” * 1 week goes by *“Huh. That was… relatively painless and things are still running efficiently. Of course, that could all change, but for now I guess we will let this continue.” This process, that can last anywhere between hours and months, is neither efficient nor risk-free. In fact, the Equal Employment Opportunity Commission (EEOC) has often found that an employer can be liable even when it gives the employee the accommodation they requested if there was what it calls an “undue delay.” How much of a delay is an undue delay? While I cannot give you an exact timeframe, since much depends on what the employer has been doing during that time, there have been EEOC decisions finding even three months is too long. If part of the process relies on a third party that you do not have any control over, that timeframe could be extended, but you can be sure that taking the time to work through those 5 stages of reasonable accommodation grief is not going to be looked on favorably. The trick is to make sure you are prepared ahead of time, so that when an employee asks for an accommodation, you are ready to handle it. Make sure you and your management team know your legal obligations, such as when you have an obligation to provide accommodation, and when it is just a matter of employer discretion. Make sure you and your management team know what kinds of accommodations are possible for your employees, and what kinds of accommodations might be considered an “undue hardship.” Make sure you have a clear protocol for handling requests for accommodation that includes what steps the supervisor should take upon receiving the request, who has the authority to approve or deny the request, and with whom to consult if you are unsure and want some support in the eventual decision. At Luchansky Law, we have extensive experience preparing policies, providing guidance, and partnering with employers to enable them to be prepared for and confidently respond to their employee’s requests for reasonable accommodations.  If you are looking for a new comprehensive reasonable accommodation policy, someone to review the policy you already have, or legal support when considering complicated requests, email me at alan@luchanskylaw.com, or call me at 410.522.1020.

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Pivotal Digital Feb 16 No Comments
Employer's Toolbox

Do Employers Ever Have to Pay Salaried Employees Overtime?

By: Bruce Luchansky             Even smart employers make mistakes.  And in the world of employment law, there is one mistake that employers make more than any other.             “I’m tired of paying my employee overtime.  I’m putting him on salary.  Then I won’t have to pay him overtime.”             Employers often mistakenly believe that an employee – any employee – who receives a salary is exempt from overtime.  True, paying employees a salary is one of the requirements for exempt status.  But it is not the only one.  In addition to a salary, the law also requires that the employee’s duties fall within a recognized category of (typically) high-level jobs – such as a manager, an administrator, or a professional.  File clerks, maintenance technicians, and leasing agents all perform very valuable services for their companies.  But even if a company were to pay these employees (and others like them who are not managers, administrators, or professionals) a salary, the employees still would be “nonexempt,” and the employer would have to pay them time and a half for all hours they work above 40 in a workweek.             This single piece of information is a powerful tool that companies can – and should – use to protect themselves from unexpected overtime claims.  With this piece of information, employers that have salaried employees should take two actions immediately.             First, every company must carefully consider each of its salaried employees and make an informed decision whether the employee’s duties qualify the employee to be exempt from overtime under applicable laws.  This determination is obvious sometimes (a salaried CEO is exempt), but other times, it is not. (For example, project managers often are found to be exempt, and often they are found not to be exempt, depending on the specific project manager’s actual duties).  This undertaking is where your employment attorney’s assistance can be extraordinarily valuable.             Second, once a company identifies a salaried employee as someone to whom overtime must be paid, the company should consider whether the employee will be working a fixed schedule or a fluctuating schedule.  Paying overtime to a salaried employee on a fixed, 40 hour per week schedule is relatively straightforward: employees receive time and a half for each hour they work above 40 hours each week (after calculating their equivalent hourly rate).  By contrast, companies with employees whose schedules fluctuate from week to week may only have to pay these employees “half time” for all hours over 40 – thus, saving a substantial amount of overtime pay.              To be eligible for this special treatment, however, the employer and employee must agree that the employee’s salary compensates the employee for all hours he or she works (not just for a specific number of hours per week).  To avoid future disputes, the best way to do this, of course, is in writing.  And the best place to do this is in the employee’s offer letter or employment agreement.              When employers handle “fluctuating workweek” compensation properly, the cost savings is substantial.  Under a fluctuating workweek agreement, the employee’s regular salary already constitutes full “straight time” pay for all hours worked.  Therefore, the company only must pay the employee the “half time” premium for all hours worked over 40 per week.              Navigating the labyrinth of wage and hours laws is one of the many areas of employment law that Luchansky Law handles regularly.  Call me at Luchansky Law, 410.522.1020, or email me at lucky@luchanskylaw.com, and see how our firm can assist you with protecting your company, lowering your legal risk, and saving you money.

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Pivotal Digital Feb 16 No Comments
Employer's Toolbox

Non-Competes and Restrictive Covenants 101: What Employers Need To Know

By:  Ari Lichterman, Esq. Employers invest significant time and resources in hiring and training employees, developing clients, and designing proprietary business information.  Because of this significant investment, employers need tools to protect their business interests, client relationships, confidential information, and competitive positioning.  Enter the restrictive covenant.  A restrictive covenant is a provision in a contract that prevents or limits what actions an employee can take after their employment ends.  There are different types of restrictive covenants.  Many people have heard of a “non-compete” agreement, but there are others as well, such as non-solicitation and non-disclosure agreements.  Knowing what types of restrictive covenants are available is the first step to protecting against the risk of losing key information or business to competitors.  But more important is knowing when and how to use them effectively, ensuring they can withstand legal challenge.  How a business crafts any restrictive covenants in its employee contracts will determine whether the restrictive covenant serves its intended purpose of protecting the business or becomes an unenforceable restraint which undermines that goal by creating unnecessary legal and compliance risk. What Types of Restrictive Covenants Are There? The most common types of restrictive covenants include: Non-Compete Agreements A non-compete agreement is a provision in a contract (or a standalone agreement) that prevents an employee from working for competitors or starting a competing business for a specified amount of time (e.g., 2 years) within a specified geographic area (e.g., 25 miles).  This is the broadest type of restrictive covenant because, if it is defined too broadly, it can limit an employee’s mobility and ability to earn a living and can be viewed as a restraint on competition. Because of their breadth, non-compete agreements are heavily scrutinized and subject to legal challenge. Nevertheless, when drafted appropriately, they can be an effective tool for protecting against unfair competition. Non-Solicitation Agreements Sometimes referred to as a “no poaching” agreement, a non-solicitation agreement prevents a former employee from contacting company clients or employees.  Non-solicitation of client clauses prevent former employees from capitalizing on relationships that they developed during their employment for the benefit of the employer, and which they are now trying to take for themselves. Non-solicitation of employee clauses typically are found in industries where businesses invest in employees’ training and professional development and there is strong demand for highly skilled employees.  This type of restrictive covenant is less restrictive than a non-compete because it does not limit where a person can work and therefore typically faces less scrutiny.   Confidentiality / Non-Disclosure Agreements (NDAs) A confidentiality or non-disclosure agreement, commonly referred to as an “NDA,” protects certain proprietary information, sensitive business data, or trade secrets by preventing a former employee from sharing such information.  This information often includes client lists, pricing structures, business methods, production processes, software algorithms, and marketing plans.  NDAs typically outline the types of information the business considers confidential and the steps those with access to such information must take to protect and safeguard it.  Are Non-Competes Legal?   Federal and State Law Summary   Federal Enforcement In recent years, there has been a push to ban non-compete agreements.  In 2024, the Federal Trade Commission (“FTC”) voted to implement a rule to ban almost all contracts which contained a non-compete agreement.  This rule was challenged in the U.S. District Court of Texas, which issued an injunction preventing the rule from going into effect in the Fall of 2024.  See Ryan, LLC v. FTC, 746 F. Supp. 3d 369 (N.D. Tex. 2024).  The FTC appealed this decision to the U.S. Court of Appeals for the Fifth Circuit, but on September 5, 2025, the FTC withdrew its appeal.  See Ryan, LLC v. FTC, No. 24-10951 (5th Cir. 2025).  In a statement issued the same day, Andrew Ferguson, Chairman of the FTC, indicated that the FTC was shifting its focus to case-by-case enforcement.  Chairman Ferguson stated the FTC would “patrol[] our markets for specific anticompetitive conduct” and “enforce the antitrust laws aggressively against noncompete agreements.”  What does this mean? Great question. Around the same time as this announcement, in September 2025, the FTC brought an action against Gateway Services, Inc., the largest pet cremation services company in the U.S., challenging Gateway’s use of non-compete agreements.  According to the complaint, Gateway required all new hires—around 1,700 people, regardless of seniority or role—to sign non-competes that barred them from working in the pet cremation industry in the U.S. for one year. The FTC characterized this as anti-competitive conduct in violation of federal law (15 U.S.C. § 45), emphasizing both the blanket application of the restriction and its nationwide scope. For employers, the message is straightforward: non-competes are not banned by federal law, but they must be narrowly tailored and defensible.  Agreements that apply indiscriminately across the workforce, or that impose sweeping geographic or industry-wide bans, are increasingly vulnerable to regulatory challenge. Non-Competes in Maryland Maryland law generally enforces non-compete agreements, as long as they are reasonable in length of time (2 years is often approved by the courts) and in geographic scope (which varies substantially, depending on the scope of the company’s customer base).  Despite this general rule that non-compete agreements are enforceable in Maryland, in 2024, Maryland passed a law that made certain non-compete agreements unlawful.   Section 3-716 of the Labor and Employment Article of the Maryland Annotated Code declares “null and void” the following “non-competes.”  The first applies to employees earning modest wages: any employee who earns 150% or less of the State minimum wage (i.e., $22.50 or less per hour), may not have a non-compete agreement.  The second applies to employees in the healthcare industry: healthcare workers who provide direct patient care and earn $350,000 or less annually, and veterinary professionals may not have non-compete agreements.  For healthcare workers who earn more than $350,000 annually, non-competes are enforceable but the restrictions must be limited to a 1-year duration and a 10-mile geographic radius.  The prohibition applies prospectively to new agreements, not to agreements already in existence when this law passed.  Importantly, non-solicitation

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Pivotal Digital Feb 16 No Comments
Employee Lawsuits

How To Stop Your Internal Investigations from Nosediving into Retaliation

By: Alan Glickman, Esq. You receive an HR complaint from an employee. It could be someone unhappy with howtheir manager has been speaking with them, or it could be a manager feeling like their directreport is harassing them, or it could be an employee who brought up safety concerns in the workplace. You don’t have to look much further than any episode of The Office (eithercountry’s) to find plenty of examples. What is the first step after the complaint comes in? You were paying attention during the management training, so you know what to do: you assign the complaint to an objectiveinvestigator to look into it. You even remember what the training said about being careful not to do anything that could be considered retaliatory, so you make sure you don’t do anything like put the person who made the complaint on administrative leave or relocate the person who made the complaint to another seat. Whew! Issue handled, right? Before answering that, let me ask you this: was your investigator paying attention duringmanagement training? What? What do you mean, the investigator never took the training? The fact is, many retaliation cases are the result of well-intentioned but poorly executed internal investigations. Leaving the official statutory definition for another day, unlawful retaliation essentially is anything—an action, an inaction, or a statement—performed by the employer or someone acting on the employer’s behalf that is sufficiently material to deter legally protected activity. “Sufficiently material” sounds pretty vague, doesn’t it? That’s intentional. The idea is that if someone feels like they need to do something to protect their rights, the law wants to ensure that they do not feel like they are being punished for it. As I mentioned earlier, a common mistake is placing the employee who made the complaint on administrative leave during the investigation. While it may seem like a good idea to make sure the employee does not have to deal with whatever is going on in the workplace, think about what really is going on — it is taking an action against that employee because they made the complaint. Typically, that is an open-and-shut case of retaliation. But there are more subtle and insidious things that can be, and that courts have, considered to be retaliatory. Internal investigations are sure to turn up any number of issues, only some of which have any bearing on the underlying complaint. Let’s imagine a scenario when an employee made acomplaint after being suspended, claiming it was discriminatory. During the investigation, the manager explains that he suspended the employee for poor performance and failure to follow a management directive. What happens next is crucial. The investigator obviously needs to look for more information about the alleged insubordination and poor performance since those facts can spell the difference between discrimination and a legitimate personnel action. But it is how the investigator does so that makes all the difference. The term you may come across is “victim blaming,” which is when the person who raises the concerns ends up being the one who finds themself more closely scrutinized than the alleged harasser. Unfortunately, there is no neat checklist of questions or safe and appropriate actions to take. Each investigation, and each situation is unique and needs to be considered in its own unique context. In our earlier example, is a harassment investigation the right vehicle for investigating an employee’s performance? If so, how closely are you supposed to look at the allegations of poor performance? If the complaining employee provides names of witnesses, do you need a statement from each one, or can you get a general sampling? How much information do you share with the person who was accused of harassment? And who has to make all these subtle judgment calls? That brings us back to where we began—the investigator. Just who are you authorizing to conduct these sensitive and important investigations? Is it just a collateral duty your HR generalist handles? Is it left for you to try to handle on your own? The most important thing that you can do to minimize the risk of an investigation turning into a retaliation complaint is to take it seriously and to make sure the investigator is also. When the investigation is performed in earnest, you have the double benefit of avoiding further complaints while demonstrating to the individual who filed the complaint—and by extension, the eventual reviewing authority—that you are acting in good faith. If you want to make sure your internal investigations aren’t leaving you open to liability, Luchansky Law can help you develop internal investigation protocols and train your team to perform them so that your company is protected from risk, not exposed to it. Want to learn more about internal investigations, or have a current employee complaint that needs to be investigated? Call me at Luchansky Law, 410.522.1020, or email me at alan@luchanskylaw.com. I would be happy to help.

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Pivotal Digital Feb 13 No Comments
Document Drafting

What is the Purpose of an Employee Handbook?

By AJ Esral, Esq. Handbooks. If you’ve ever worked for a company, chances are you’ve been handed one of these. They can run from a few pages to several hundred, often contain inexplicable passages of dense legalese, and are generally skimmed through briefly before being relegated to a drawer somewhere. What’s the point? It’s now 2026; is it time we finally drop this trend? No. Handbooks serve several important functions, both for employers and employees, by: setting clear expectations, and limiting legal liability … if they’re done right. There are plenty of ways to do it wrong and cause more harm than good. Poorly prepared handbooks typically are boilerplate documents that don’t say much and are difficult to understand.  As a result, they don’t accomplish either of the above purposes. Indeed, they sometimes end up shooting the employer in the foot. In the hope of avoiding that problem for you, I’ll provide a few tips for how to draft a handbook so it’s actually useful to both employers and employees. Let’s get into it. Setting Expectations Every company is its own microcosm. A hierarchy of important people, rules and rituals make the place run, and an implicit culture underlies the whole enterprise. As with any system, there is a learning curve for newcomers, and it doesn’t always come across quite right to ask all sorts of questions on the first day. What are the company’s preferred methods of communication? What can/should you wear? How is performance measured? How does PTO work? And so on. As an employer, this is your opportunity to tell your new employees everything they will inevitably ask you. Think about things such as: PTO: How and when to take leave, and PTO vs. unpaid leave. Payday: How payday works, what deductions are taken. Reporting channels: Who to go to with complaints or reports of harassment. Importantly, this is also your opportunity to tout the many benefits employees enjoy. If you provide life insurance, health benefits, and the like, you want to tell employees about their “hidden paycheck.” Many do not know that the employer pays into Social Security on their behalf, too. Claim credit for the money the employer pays to provide worker’s compensation coverage, and other benefits at no cost to the employee. This is also an opportunity to set expectations.  It is easier to compile a list of policies in advance than tell everyone on the fly, such as: Attendance and how to report absences; Any disciplinary frameworks; and Workplace conduct expectations, including behavior, dress code, and safety protocols. Bottom line: It’s much easier to reaffirm this information in a handbook in case it gets lost during the hustle and bustle of onboarding. The handbook serves as a kind of catch-all for anything you may have forgotten, and it can be referenced later as needed. But that’s not the only purpose of handbooks.  Limiting Liability “Please provide a copy of your handbook with the relevant policy or policies highlighted.” That is the first thing they ask for in most employment-related lawsuits or EEOC complaints. And for good reason: that’s the first (and often, only) place where the purportedly violated policy lives. This is why you often find policies about hiring in handbooks – topics like equal employment opportunity, background checks, and immigration compliance — even though by the time an employee gets it, chances are they’ve already been hired. It’s because those policies need to live somewhere. A company needs to have on record that it does things by the book; where else, other than in required legal postings, is the company going to put it? But there are lots of other good liability-related reasons an employer might want a handbook: No term contracts. It minimizes “implied contract” or “term contract” risks by stating in BIG, BOLD LETTERS up front that nothing in this handbook creates a term contract, and employment remains strictly at will. Discipline. It provides an express basis for discipline, which can help an employer convey to the employee that the action is not personal. “Sorry, but this is our policy.” Clear policies. It forces employers to think through and articulate how they want to run their company, which works to everyone’s benefit.  Most of the time, having established rules is better than making decisions – and creating policies – as issues arise. Obviously, to reap the benefits of a well-drafted handbook, you have to make sure each employee receives a copy of it. Many companies believe it is crucial to have an Employee Acknowledgment page that employees must sign to prove they received it.  We believe that a signature page often creates more problems than it solves.  What happens, for example, when an employee makes a complaint and you go looking for that employee’s signature page . . . but it is nowhere to be found?  If it is your policy that ALL employees MUST sign for their handbook, then the missing signature page is likely to become a point in favor of the employee.  “Hey, I never even saw the handbook!  Do you have a signature page that proves I did?” But how can you prove that your employees received the handbook if you don’t have a signature page?  The good news is that any record of distribution or evidence of your policy of distribution will do: a dated email to the employee, an electronic date stamp of distribution, or a new employee checklist that clearly states company policy to distribute the handbook and any subsequent changes or updates (even without proof that the handbook actually was distributed to the particular employee). Any of these create a rebuttable presumption in favor of the employer. We have discussed some of the important benefits of having a well-drafted handbook.  What are some of the hidden dangers that can be created by a poorly-drafted handbook? What to Look Out For Drafting mistakes include both the risk of forgetting to include certain policies, as well as including certain policies without realizing they are

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Pivotal Digital Feb 9 No Comments
Employer's Toolbox

FAMLI Delayed Again — What Maryland Employers Should Still Be Doing Now

AMLI Delayed Again — What Maryland Employers Should Still Be Doing Now Maryland employers are still waiting for the state’s Paid Family and Medical Leave Insurance (FAMLI) program to take effect—but “waiting” doesn’t mean standing still. Earlier this year, we explained the state’s most recent delay in our post, FAMLI Delayed Again: What Maryland Employers Should Know About the State’s Paid Leave Program. Now, as the Maryland Department of Labor proposes to push payroll contributions to January 1, 2027 and benefits to January 1, 2028, employers should use this extra time wisely. This follow-up highlights what businesses should be doing now to prepare—updating policies, coordinating payroll systems, and planning ahead for compliance before the program finally goes live. What the FAMLI Program Does The FAMLI program will provide paid, job-protected leave to employees who need time away from work for certain family or medical reasons, including their own serious health condition, the birth or adoption of a child, or the care of a family member. Most Maryland employers with at least one employee will be covered. Funding comes from a shared payroll contribution, split between employers and employees at a rate to be announced by the Maryland Department of Labor. What Changed in 2025 During the 2025 legislative session, Maryland lawmakers expanded FAMLI coverage through House Bill 895, adding leave to care for military service members and their families. The expansion reflects a growing effort to align state leave rights with federal protections for military caregivers. At the same time, the Department of Labor’s proposal delays both contributions and benefits by roughly two years. That means employers have until early 2027 to get their systems and policies ready—but waiting until then will be a mistake. Steps Employers Should Take Now 1. Review existing leave policies.Compare your current leave options—such as PTO, short-term disability, and FMLA—with FAMLI’s categories of leave. Identify overlap and areas requiring adjustment. 2. Plan for payroll integration.Talk to your payroll provider about system updates to manage state-mandated contributions and reporting. 3. Communicate with employees.Even though benefits won’t be available until 2028, employees are already asking questions. Early, accurate communication helps build trust and reduces confusion. 4. Budget ahead.Employers will be responsible for a share of the contribution. Factor potential costs into long-term budgeting. Why Preparation Still Matters Employers that delay planning risk compliance errors, employee complaints, or administrative problems when the program takes effect. Getting a head start now will make the 2027 transition far easier and help avoid penalties when the Department of Labor begins enforcement. Key Takeaways Payroll contributions start January 1, 2027; benefits start January 1, 2028. FAMLI applies broadly to most Maryland employers. Start now: update leave policies, coordinate payroll, and plan communications. A short delay is no substitute for preparation—when it comes to compliance, early action pays off. How Luchansky Law Can Help FAMLI compliance will touch every aspect of your business—from payroll and benefits administration to employee communications. The attorneys at Luchansky Law help Maryland employers interpret complex labor laws, design compliant policies, and avoid costly missteps before new mandates take effect. We will continue to monitor updates from the Maryland Department of Labor and publish new guidance as the implementation date approaches.Contact our team today to review your leave policies and ensure your business is ready.📞 410-522-1020 | 📧 info@luchanskylaw.com

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Pivotal Digital Oct 10 No Comments
Employer's Toolbox

Multi-State Workforce Management: Compliance Pitfalls and Practical Solutions

Remote and hybrid work are here to stay, and with them come new challenges for employers managing teams across state lines. While flexibility broadens access to talent, it also introduces a patchwork of compliance obligations that can expose employers to risk if not addressed proactively. State Laws Govern Where Employees Work A key rule for employers to remember is this: the law of the state where the employee works—not where the company is based—controls. That means a Maryland resident working from home for a Virginia business is subject to Maryland’s wage and employment protections. Tracking employee locations has become a crucial compliance step. Employee Handbooks: One Size Doesn’t Fit All Uniform handbooks are often not sufficient for multi-state workforces. A policy written with Virginia law in mind could conflict with paid leave or wage laws in Maryland or California. A practical solution is to maintain a standard core handbook and add state-specific supplements tailored to each jurisdiction where employees work. The Maryland Department of Labor provides a Guide to Wage Payment and Employment Standards, which illustrates just how detailed these rules can be. Restrictive Covenants Under Pressure Restrictive covenants like non-compete agreements are facing increased scrutiny. National Trend: The Federal Trade Commission has proposed a rule banning most non-competes nationwide, though court challenges continue. State Spotlight – Maryland: Beginning July 1, 2025, non-competes for direct patient care healthcare providers earning less than $350,000 annually will be unenforceable. This rule was enacted through HB 1388 and is codified in Maryland Code, Labor & Employment § 3-716. Employers should review their restrictive covenants, identify which employees are bound by them, and evaluate whether state laws render those provisions invalid. Alternatives such as non-disclosure or non-solicitation agreements may offer more reliable protection. Proactive Steps for Employers Audit locations to confirm where employees perform work. Review policies for compliance with multiple states. Reevaluate non-competes in light of state and federal trends. Work with counsel for updates as laws evolve. Conclusion Multi-state compliance is no longer a problem only for large corporations. Even small and mid-sized businesses are now navigating this landscape. By taking proactive steps—tracking employee locations, adjusting handbooks, and revisiting restrictive covenants—employers can reduce risk and stay ahead of legal change. Contact us today to discuss how Luchansky Law can help employers build policies and agreements that stand up across jurisdictions. (410) 522-1020 | info@luchanskylaw.com | www.luchanskylaw.com. Preparation remains the best strategy in a shifting legal environment. About Luchansky Law Luchansky Law is a premier labor and employment law firm committed to providing exceptional legal representation and client service. Founded in 2004 by Bruce Luchansky, the firm offers a wide range of legal services to businesses and individuals, focusing on workplace issues, employment disputes, and compliance. Luchansky Law is dedicated to upholding the highest standards of diligence, professionalism, and compassion in its practice.

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Pivotal Digital Sep 24 No Comments

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