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Workplace Discrimination

A Lower Hurdle for Federal Employees

In a recent decision, the United States Supreme Court held that federal employees face a lower hurdle in proving age discrimination than those in the private sector.  In an 8-1 decision in Babb v. Wilkie, 18-882 (October Term 2019), the Court reversed the Eleventh Circuit’s decision and held that, because the plain language of 29 U.S.C. §633a(a), applicable to federal employees, mandates that personnel decisions must be made “free from any discrimination based on age,” a federal employee can prevail in an age discrimination claim by proving that age was but one factor in the employment decision. Thus, even if the federal agency had legitimate reasons for the challenged personnel action, such as, for example, that the employee that received the position or promotion instead of the claimant was more qualified, if age was a factor in the decision, the personnel action is unlawful.  An employee in the private sector who alleges age discrimination under the ADEA, by contrast, still must prove that but for the employee’s age, the challenged personnel decision would not have been made.  If you believe you have been the victim of age discrimination, please call Luchansky Law at 410-522-1020 to arrange a consultation.

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Joseph Wolf Apr 8 No Comments
Maryland Wage and Hour Law

TREASURY, IRS AND LABOR EXPLANATION OF TAX CREDITS FOR NEW PAID LEAVE

As you know, the Families First Coronavirus Response Act that was signed by President Trump on March 18, 2020 requires businesses with up to 500 employees to provide additional paid leave to their employees. Many businesses understandably were concerned whether they could withstand the potential financial impact of the legislation, as well-intentioned as it may be. In theory, the law included a mechanism for financial relief by providing employers with a dollar-for-dollar tax credit to offset the money paid to employees in accordance with these requirements. But many questions loomed – including how quickly employers would be able to utilize these tax credits. The Treasury, IRS, and Labor Departments now have issued a helpful explanation of the process for claiming these tax credits, with more guidance to be released imminently. Businesses will be pleased to know that they will be permitted to take these tax credits on a current basis by offsetting them against the regular payroll taxes that employers pay in each payroll. The notice explains: “When employers pay their employees, they are required to withhold from their employees’ paychecks federal income taxes and the employees’ share of Social Security and Medicare taxes. The employers then are required to deposit these federal taxes, along with their share of Social Security and Medicare taxes, with the IRS and file quarterly payroll tax returns (Form 941 series) with the IRS. “Under guidance that will be released next week, eligible employers who pay qualifying sick or child care leave will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and child care leave that they paid, rather than deposit them with the IRS. The payroll taxes that are available for retention include withheld federal income taxes, the employee share of Social Security and Medicare taxes, and the employer share of Social Security and Medicare taxes with respect to all employees. “If there are not sufficient payroll taxes to cover the cost of qualified sick and child care leave paid, employers will be able file a request for an accelerated payment from the IRS. The IRS expects to process these requests in two weeks or less. The details of this new, expedited procedure will be announced next week.” You can review the IRS’s full explanation of these provisions – including a potential Small Business Exemption for businesses with fewer than 50 employees — at the following link: https://www.irs.gov/newsroom/treasury-irs-and-labor-announce-plan-to-implement-coronavirus-related-paid-leave-for-workers-and-tax-credits-for-small-and-midsize-businesses-to-swiftly-recover-the-cost-of-providing-coronavirus. As always, if you have any questions, do not hesitate to contact Luchansky Law by email, or by calling 410.522.1020.

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Bruce Luchansky Mar 27 No Comments

The Families First Coronavirus Response Act

President Trump signed into law the Families First Coronavirus Response Act, an economic stimulus plan aimed at addressing the impact of the COVID-19 outbreak. The new law, which goes into effect on April 2, 2020, impacts all businesses with fewer than 500 employees by requiring employers to provide employees additional paid sick leave for illnesses relating to the coronavirus, and by amending the Family and Medical Leave Act to require a blend of unpaid and paid leave for employees who must care for children whose schools and day care providers have closed. Here is a brief summary of the new law’s provisions. Temporary FMLA Expansion The new law does not make a wholesale change to the FMLA. Employers with fewer than 50 employees still do not have to comply with the standard provisions of the FMLA. But all employers with fewer than 500 employees have to comply with the new provisions of the FMLA summarized below. The new law now require employers to provide employees with up to 12 weeks of leave where the “employee is unable to work (or telework) due to a need for leave to care for [a] son or daughter under 18 years of age . . . if the school or place of care has been closed” because of the COVID-19 emergency. While the first 2 weeks of that leave can be unpaid, the remaining 10 weeks of the leave must be paid at 2/3 of the employee’s regular wages, up to a cap of $200 per day with a $10,000 maximum. There are some provisions in the Act that are designed to protect small businesses. For example – If an employee goes out on leave under this provision, and the employer cannot afford to hire him or her back because of economic conditions or other changes in economic conditions, the business only has to make reasonable efforts to restore the employee to the former position, but does not have an absolute obligation to do so. The Department of Labor will have the authority to exempt small businesses with fewer than 50 employees from these additional requirements when compliance with them would jeopardize the viability of the business as a going concern. Tax credits will be permitted in the amount of paid leave provided. These expanded provisions will terminate on December 31, 2020. Emergency Paid Sick Leave In addition to the expansion of the FMLA for childcare coverage described above, the new law also requires employers with up to 500 employees to provide additional paid sick leave to an employee who: Is subject to mandatory quarantine for COVID-19. Has been advised by a health care provider to self-quarantine because of COVID-19. Is experiencing symptoms of COVID-19 and is seeking a medical diagnosis. Is caring for an individual who is subject to mandatory quarantine or has been advised to self-quarantine. Is caring for a son or daughter because their school has closed or child-care provider is unavailable because of COVID-19. Is experiencing any other substantially similar condition specified by the government in connection with the emergency. Employers are required to provide full-time employees with 80 hours of paid sick time, and part-time employees with a number of hours of sick time equal to the number of hours that such employee works, on average, over a 2-week period. This sick leave may not carry over from year to year. The Act prohibits employers from discharging, disciplining, or otherwise discriminating against an employee for taking leave under the new law. Tax credits will be permitted in the amount of paid leave provided subject to a cap of $511 per day per employee unless the leave is used for caring for a family member or child in which case a daily cap of $200 per employee applies. Employers will be required to post a notice of these rules, which the DOL will be issuing in the coming weeks. Details and Questions There are many details of the new law, of course, that require further explanation. Please contact us with any questions you have, either about the law in general, or about how it will affect your business. These issues continue to develop, and we will continue to keep you apprised of them.

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Bruce Luchansky Mar 19 No Comments

Maryland Noncompete and Conflict of Interest Clause Act

As of October 1, 2019, Maryland joined other states across the nation by enacting the Noncompete and Conflict of Interest Clause Act (NCICA) to prohibit non-compete clauses and conflict of interest clauses for employees who earn equal to or less than $15.00/hour or $31,200 annually.  The State of Maryland has deemed non-compete and conflict of interest clauses for lower paid employees to be against public policy and considers them null and void. Significantly, the NCICA prevents enforcement of non-competition clauses even while such employees are still employed.  The law does not, however, place any limitations on agreements which restrict the use or possession of proprietary client-related materials and information.  The NCICA does not provide any penalty for an employer who compels an employee to enter into a prohibited agreement, nor does it allow employees to sue employers who require them to sign the prohibited agreements. Rather employees will likely rely on the NCICA as a defense to a claim by their employer that they have violated a non-compete provision. If you are a Maryland employer and need assistance with Maryland employment law changes such as NCICA, please contact Luchansky LAW for a consultation.

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Bruce Luchansky Mar 19 No Comments

Navigating the DOL New Overtime Rule

On January 1, 2020, a new U.S. Department of Labor final rule will extend overtime pay thresholds.  The rule raises the standard salary level from $455 to $684 a week, the equivalent to $35,548 per year for full time workers.  Employees earning less than the new imposed threshold are eligible for overtime pay of at least time and a half. The final rule further raises the annual compensation requirement for highly compensated employees to $107,432 per year.  The final rule further allows the use of annual nondiscretionary bonuses, incentive payments and commissions to fulfill up to 10% of the standard salary level. The rule will change the earnings thresholds needed to provide exemption to FSLA’s minimum wage and overtime pay requirements for executive, administrative and professional employees. Employees Who May Qualify for Overtime Under the New Rule Employees receiving a W-2 tax form. Hourly wage employees. Repetitive, manual labor employees. Employees earning less than $35,000 annually Maryland employers will be affected by DOL’s new rule and should devise a strategy to prepare.  Some employers may opt to reclassify their employees to avoid the rise in payroll costs.  These employers should provide clear communication with their employees and pay close attention to record keeping including tracking of time, overtime and bonuses.  If your company is facing an impact from the Fair Labor Standards Act’s newest rule, contact Luchansky Law to schedule an initial consultation.

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Bruce Luchansky Sep 27 No Comments

Impact of Tax Liens on Security Clearance

TIPS TO PREVENT TAX LIENS FROM IMPACTING YOUR SECURITY CLEARANCE Every year, hundreds of thousands of applicants submit for security clearance approval or renewal.  Simply completing the Form SF86 – all 127-pages – is a daunting task itself.  Applicants do not need any additional hurdles interfering with receiving their successful approval.  Yet, the existence of an outstanding tax debt is a frequent basis for security clearance denial.  If an applicant has a tax lien, follow these steps to increase your likelihood of a favorable outcome. Resolve Your Delinquent Taxes Prior to Submitting Your Application Many applicants believe that they can submit their security clearance application and then resolve their tax delinquency afterward.  They mistakenly assume that they need only resolve the tax lien prior to a decision being issued on the application.  Wrong!  Once the application is submitted, the research into the applicant’s background can commence promptly and any outstanding tax debts may quickly result in a negative assessment. While this requires advance planning, applicants must do everything in their power to resolve all outstanding tax debt prior to submitting the application.  Doing so will give a person a much better chance of having the application approved. After a security clearance application is denied, you are typically issued a “statement of reasons” advising as to the basis for the decision.  From there, the applicant typically has appeal rights.  However, once you are this far along, you are way behind the curve.  You want to start out this process as a “Winner”; not forced into filing an appeal with the hope of mounting a come-from-behind rally.  To put yourself in the best place position, resolve your delinquent tax issues prior to submitting your application or renewal. Mitigation, Mitigation, Mitigation! The reality is, most applicants simply are not in a position to quickly resolve their tax lien prior to the due date for their application or renewal.  Fortunately, the laws that govern security clearance issuances allow tax liens and other debts to be viewed less critically when the applicant has initiated good-faith efforts to repay the debt or when there are clear indications that the problem is being resolved or is under control.  So, take action immediately to show your efforts to resolve your tax lien.  Equally important – document your actions!  Be sure to keep records of all the steps you have taken so that, if the time comes, you can demonstrate your efforts to mitigate and responsibly resolve the debt. Tax Liens Are Treated Just As Any Other Debt. Many applicants make the mistaken assumption that a tax lien will be viewed more favorably than other debts, such as a repossessed car or outstanding credit card debt.  No so.  The government views tax debt in a very similar manner to how it views many other forms of debt.  Ultimately, the guidelines under which applications and renewals are decided look for debts that demonstrate the failure to live within one’s means.  From the Government’s perspective, failure to live within your means reflect poor self-control, lack of judgment, or unwillingness to abide by rules and regulations.  Not attributes associated with a person handling Classified Information.  Accordingly, a tax debt, like most other forms of debt, will have a similar negative impact upon a clearance determination.  BONUS – Don’t Go At Alone! If you have already been denied and are now at the appeal stage, you have the option to proceed pro se, which means to represent yourself.  This is often a very bad idea.  Application appeals are viewed through the prism of a specialized legal analysis, and it is critical that you have an attorney on your side who understands the legal issues being advanced.  When an application or renewal has been denied, your career is often in jeopardy.  Approach this issue with the seriousness it deserves and consult with an attorney who has experience in security clearance issues to help you through the process.

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Bruce Luchansky Aug 13 No Comments

Maryland’s Non-Compete Ban

On May 25, 2019, Maryland enacted Senate Bill 328, “Labor & Employment – Non-compete and Conflict of Interest Clauses”. The bill essentially prohibits employers from entering into non-compete agreements with employees earning equal to or less than $31,200 annually or $15 per hour. The new bill makes Maryland the latest state to revise its non-compete laws.  The statute language is vague in certain areas.  It fails to clarify if the law encompasses non-solicitation agreements and other restrictive covenants. However, it should be noted that the statute expressly excludes any employment contracts with respect to taking and using a client list or other private client-related information from its coverage. It also fails to indicate if the statute is applicable only post-employment. Accordingly, by its simple language, the statute would prohibit employers from forming anti-moonlighting agreements with lower wage employees. The non-compete ban will go into effect on October 1, 2019.  Employers who employ minimum wage and low-income employees will primarily be affected.  Employers with workers earning at or near the minimum wage should pay close attention to Maryland’s new laws and contact Luchansky Law for consultation to assist in amending policies.

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Bruce Luchansky Jun 21 No Comments

The Maryland Commission on Civil Rights – The Basics

​​The Maryland Commission on Civil Rights (“MCCR”) enforces Maryland’s employment law that guarantees equal opportunity regardless of race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, gender identity, disability, or genetic information. Therefore, it is illegal for employers to discriminate in recruiting, interviewing, hiring, setting work conditions, or discharging, based on the above protected categories. Only employers with 15 or more employees are subject to the law. Harassment on the basis of one the protected categories listed above, and retaliation for filing a complaint or being involved in the investigation, are also prohibited under law and enforced by MCCR. A charge of discrimination must be filed with the MCCR within six months of the date the alleged discriminatory act occurred. If you believe that actions have been taken against you based on discrimination in violation of Maryland law, it is imperative that you contact the MCCR immediately to initiate the process of determining whether you have been a victim of illegal employment discrimination. Our experienced employment attorneys can guide you through the MCCR process and help you analyze your situation to determine if the actions taken against you meet the threshold of being considered illegal discrimination.  

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Bruce Luchansky Feb 26 No Comments

MCCR and EEOC “Work-Sharing Agreement”

The Maryland Commission on Civil Rights (“MCCR”) is the Maryland state agency equivalent to the United States Equal Employment Opportunity Commission (“EEOC”). Although the MCCR was created to enforce Maryland’s laws against discrimination in employment, the MCCR has a “work-sharing agreement” with the EEOC, which means that, although the EEOC is a federal agency and the MCCR is a state agency, they work together to handle each other’s cases. While some are of the opinion that complaints filed with the MCCR are automatically filed with the EEOC, we believe it is a prudent practice, when filing a claim with either agency, to indicate that you want to “cross-file” the claim with the other agency. The work-sharing agreement means that cases are shared or transferred among the agencies. Sometimes the MCCR transfers cases to the EEOC, such as when the allegation is against a federal agency or the complaint is filed after 180 days of the alleged incident. Additionally, the EEOC will often transfer complaints to MCCR where the agency has jurisdiction in order to conduct the investigation. The MCCR also has the ability to request cases for investigation from the EEOC, and that is a practice the agency engages in, in order to process every allegation of unlawful discrimination in Maryland in a timely manner.  Often, the EEOC or MCCR are backlogged with a heavy load of cases and they may enlist the help of another local agency, such as a county office of human rights, to process claims and investigations.  This can be very helpful for your case as we have experienced tremendous success with this option. If you are pursuing a discrimination case in Maryland and would like guidance on how to navigate the process, contact our firm to schedule a consultation.  

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Bruce Luchansky Feb 5 No Comments

The Test for Classifying Workers as Independent Contractors Just “Evolved” Backward

                One of the most confusing areas of labor and employment law is the decision regarding whether a worker may be classified as an independent contractor, or whether the worker must be recognized as an employee.  The stakes are high.  Employees are entitled to all sorts of protections that independent contractors don’t get – unemployment benefits, leave rights (in Maryland), overtime pay (if non-exempt), protection against unlawful discrimination to name a few.  Which explains why employers lean toward misclassifying workers as independent contractors.                 What makes the issue so confusing is that each of the laws affected by a misclassification decision has a different test for determining whether the worker was properly or improperly classified as an independent contractor.  The IRS has its test for income tax purposes.  The DLLR has its test for unemployment benefits purposes.  The Department of Labor has its test for overtime purposes.                 And now, the National Labor Relations Board just changed its test for purposes of filing an unfair labor charge (a ULP) with the NLRB – something that employees may do, but which independent contractors may not.  Employees can file a ULP against their employer, for example, if they believe they were fired simply for joining with other employees to complain about their working conditions – something called, “concerted activity.”                 On January 25, 2019, the NLRB decided to go back to a standard that favors independent contractors – and, therefore, favors employers.  Under President Obama, the NLRB had changed the test to be stacked against independent contractor classification – a move that favored employees.  That decision now has been rejected.                 The thought of navigating this quagmire makes most attorneys go weak in the knees.  At Luchansky Law, we deal with these issues every day.  If you are facing a classification issue, give us a call at 410.522.1020.

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Bruce Luchansky Jan 27 No Comments

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