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The Maryland Healthy Working Families Act

Yesterday, the Maryland General Assembly passed the Maryland Healthy Working Families Act (“HWFA”). The HWFA requires employers with 15 or more workers to provide paid sick leave to employees who work at least 12 hours per week. Employers with 14 or fewer employees are required to provide unpaid leave for employees who work at least 12 hours per week. The number of employees is determined by calculating the average monthly number of employees employed during the immediately preceding year.  All employees are included in the calculation regardless of whether they are full-time, part-time, temporary, seasonal or even eligible for earned leave under the HWFA. The law carves out an exception for employees in the construction industry covered by a collective bargaining agreement in which the requirements of this law are expressly waived in clear and unambiguous terms.  However, janitors, building cleaners, building security officers, concierges, doorpersons, handypersons and building superintendents are not included in the exception.  Also excluded from the law are employees called to work on an “as-needed” basis in a health or human services industry who can reject or accept the shift offered by their employer and are not guaranteed to be called on to work. State or local government employees who enjoy sick leave benefits equivalent to, or better than, the HWFA, are subject to their existing laws and policies regarding accrual and use of sick leave, grievances and disciplinary actions. Under the HWFA, earned leave accrues at a rate of at least one hour for every 30 hours an employee works. Employers are not required to allow employees to: earn more than 40 hours of earned leave in a year; use more than 64 hours of earned leave in a year; accrue a total of more than 64 hours at any time; or use earned leave during the first 106 calendar days. Also, employers are not required to allow employees to accrue earned leave during: a 2-week pay period in which the employee worked fewer than 24 hours total; a 1-week pay period if the employee worked fewer than a combined total of 24 hours in the current and immediately preceding pay period; or a pay period in which the employee is paid twice a month regardless of the number of weeks in a pay period, and the employee worked fewer than 26 hours in the pay period.  HWFA leave can be used for the following purposes: to care for or treat a mental or physical illness, injury or condition of the employee or the employee’s family member; to obtain preventative care for the employee or the employee’s family member; for maternity or paternity leave; to obtain medical, victim support and legal services related to domestic violence, sexual assault or stalking for the employee or the employee’s family member. EMPLOYEES’ OBLIGATIONS REGARDING NOTIFYING THE EMPLOYER OF HWFA LEAVE If the need to use leave is foreseeable, an employer may require employees to provide reasonable advance notice of not more than seven days before the leave would begin. If the need to use leave is not foreseeable, employees must provide notice as soon as practicable and generally comply with their employer’s notice or procedural requirements for requesting or reporting other leave, if those requirements do not interfere with employees’ ability to use HWFA leave.  Employers may require employees to provide verification that HWFA leave taken was used appropriately. EMPLOYER DENIALS OF REQUESTS FOR HWFA LEAVE Employers may deny requests for HWFA leave if the employee fails to provide notice and the absence will cause a disruption to the employer. A private employer licensed to provide services to developmentally disabled or mentally ill individuals may deny request for HWFA leave if the need was foreseeable and, after exercising reasonable efforts, the employer is unable to provide a suitable replacement employee, and the absence will cause a disruption of service to at least one individual with a developmental disability or mental illness. ALTERNATIVE ARRANGEMENTS UNDER THE HWFA Employers may not require that employees requesting HWFA leave search for or find a replacement employee. Instead of taking HWFA leave, and with the employer’s consent, employees may work additional hours or trade shifts with another employee to make up hours. However, employees are not required to make such an offer or accept such an offer. The HWFA provides special rules for tipped restaurant industry employees. EMPLOYERS’ OBLIGATIONS UNDER THE HWFA Employers are required to provide statements regarding the amount of HWFA leave available for use by their employees and are required to notify their employees regarding all of their rights under the HWFA. Employers must keep records of HWFA leave accrued and used by employees for at least 3 years.  ENFORCEMENT An employee who believes that their employer has violated the HWFA may file a complaint with the Commissioner of Labor and Industry.  Within 90 days after the receipt of a written complaint, the Commissioner shall conduct an investigation and attempt to resolve the issue informally through mediation.  If the Commissioner is unable to resolve an issue through mediation and determines that an employer has violated the HWFA, the Commissioner shall issue an order describing the violation and directing the payment of the full monetary value of any unpaid HWFA leave and any actual economic damages. The order may, in the Commissioner’s discretion, direct the payment of an additional amount up to three times the value of the employee’s hourly wage for each violation; and may, in the Commissioner’s discretion, assess a civil penalty of up to $1,000 for each employee for whom the employer is not in compliance with the HWFA. Within 30 days after the Commissioner issues an order, an employer shall comply with the order. If an employer does not comply with an order within 30 days, the Commissioner may, with the written consent of the employee, ask the attorney general to bring an action on behalf of the employee in the county where the employer is located; or bring an action to enforce the order for the civil penalty in the county where the employer is located; and within 3 years after the

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Bruce Luchansky Jan 12 No Comments

Hostile Work Environment on the Basis of Gender

Related to the previous post, in Churchill v. Prince George’s Cty. Pub. Sch., the plaintiff also brought a claim for a hostile work environment based on her gender under Title VII and the MFEPA. In order to successfully bring such a claim, a plaintiff must allege that she was subjected to “offending conduct” that was (1) unwelcome, (2) because of her gender, (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment, and (4) imputable to her employer. The defendant argued that the claim should be dismissed because the plaintiff’s allegations were solely based on sexual orientation discrimination which is not covered by Title VII.  The court noted an important distinction that, although the plaintiff’s claims for sexual orientation discrimination could not be brought under Title VII, the Supreme Court has held that claims alleging hostile work environments may be brought based on gender stereotypes. Price Waterhouse v. Hopkins, 490 U.S. 228 , 251-55 (1989). Maryland Courts interpreting Price Waterhouse have held that “sex” under Title VII encompasses both sex—that is, the biological differences between men and women—and socially-constructed gender expectations. 

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Bruce Luchansky Dec 27 No Comments

Maryland Federal Court Dismisses Sexual Orientation Discrimination Claims

In Churchill v. Prince George’s Cty. Pub. Sch., No. PWG-17-980, 2017 BL 430226 (D. Md. Dec. 01, 2017), the plaintiff brought claims of discrimination based on sexual orientation under Title VII and the Maryland Fair Employment Practices Act (“MFEPA”). Title VII proscribes discrimination based on race, color, religion, sex, or national origin, while the MFEPA prohibits discrimination based on race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, gender identity, or disability. The defendant argued that it is well established in the Fourth Circuit that claims for a hostile work environment or termination on the basis of sexual orientation are not proscribed under Title VII.  The plaintiff countered that the precedent the defendant cited was merely dicta and that the District Court was not bound by it. She advocated that the Court instead should adopt the position of courts outside the Fourth Circuit in finding that sexual orientation discrimination is incorporated within sex discrimination. The Court noted that the plaintiff was correct that the Fourth Circuit addressed this question only in dicta. However, the Court explained, in that decision the Fourth Circuit unequivocally stated that “Title VII does not afford a cause of action for discrimination based upon sexual orientation.” Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138 (4th Cir. 1996). Additionally, the Fourth Circuit (albeit in an unpublished opinion) more recently cited Wrightson for this proposition, Murray v. N.C. Dep’t of Pub. Safety, 611 F. App’x 166 , 166 (4th Cir. 2015), and this Court has followed that precedent in finding that Title VII does not protect against discrimination on the basis of sexual orientation, Parrish v. Tile Shop, LLC, No. JKB-16-1177, 2016 U.S. Dist. LEXIS 135999 , [2016 BL 326622], 2016 WL 8669919 , at *5 (Sept. 30, 2016) (citing Murray, 611 F. App’x at 166 ); see also Sloan, 2006 U.S. Dist. LEXIS 70078 , [2006 BL 117312], 2006 WL 2709627 , at *7 (citing Wrightson, 99 F.3d at 143 ). In light of this precedent, the Court dismissed plaintiff’s claims for sexual orientation discrimination under Title VII.  

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Bruce Luchansky Dec 2 No Comments

Recent Failure to Hire Case with Vigorous Arguments presented by Defendant Employer: Part Two

Continuing from our previous article, the Court next analyzed Plaintiff’s claims under the “promissory estoppel” theory.   B. Promissory Estoppel   Maryland adopted the Restatement (Second) of Contracts § 90 (1979) for promissory estoppel, which considers four elements: 1) a clear and definite promise; 2) where the promisor has a reasonable expectation that the offer will induce action or forbearance on the part of the promisee; 3) which does induce actual and reasonable action or forbearance by the promisee; and 4) causes a detriment which can only be avoided by the enforcement of the promise. Pavel Enters., Inc. v. A.S. Johnson Co., 342 Md. 143, 674 A.2d 521, 532 (1996).   Maryland courts have noted, however, that at-will employment is a “far-reaching rule” such that “attempts to circumvent it by relying on estoppel or similar theories have consistently met with failure.” Adler v. Am. Standard Corp., 538 F.Supp. 572, 581 (D.Md.1982). Relying on this principle, Defendant argued that Plaintiff could not establish reasonable reliance in the context of at-will employment to state a cognizable claim for promissory estoppel.    The Court found that the Complaint, however, was not attempting to modify an at-will employment relationship. Plaintiff did not argue that he had an employment contract for a set term or that Defendant did not describe his promised employment as at-will.  Rather, Plaintiff’s promissory estoppel claim was based on detrimental reliance on the same fraudulent statement that formed the crux of the negligent misrepresentation claim.    The Court held that Maryland offered no binding authority regarding whether reasonable reliance on a promise of at-will employment can support a claim of promissory estoppel. Defendant relied on Greene, an unpublished Fourth Circuit opinion, where the court, with little discussion, found that Maryland’s at-will employment doctrine precludes promissory estoppel. Greene v. Nat’l Car Rental Sys., Inc., 977 F.2d 572, No. 91–2756, 1992 WL 296364 at *2 (4th Cir. Oct. 16, 1992)    In Greene, a Budget Rent–A–Car employee quit his job in reliance of an employment offer from National Car Rental that was then rescinded when National learned of prior misconduct on the part of the plaintiff.  In our case, however, the Court found Greene distinguishable not only on its facts, but also on the ground that, in that action, the plaintiff was asserting promissory estoppel to establish the existence of a binding employment contract.    Instead, the Court was persuaded by the more recent treatment of reasonable reliance by the Maryland Court of Appeals in Griesi. To support the viability of reasonable reliance in the context of a promise of at-will employment, the Griesi court cited with apparent approval several other jurisdictions that have recognized similar claims. Griesi, 756 A.2d at 557 n. 10. Plaintiff argued that one of the cited cases, Grouse, was directly on point. In Grouse, the Minnesota Supreme Court permitted a claim of promissory estoppel where an employee resigned from his job to accept an at-will job offer that was later rescinded. Grouse v. Grp. Health Plan, Inc., 306 N.W.2d 114, 115–16 (Minn.1981). The court reasoned that the employee “had a right to assume he would be given a good faith opportunity” to begin work and relied to his detriment on that assumption. Grouse, 306 N.W.2d at 116.   Other courts have also recognized a claim of promissory estoppel in the context of a promise of at-will employment. In a factually similar case, the Court of Appeals for the Eighth Circuit reasoned that Illustration 8 of Restatement (Second) of Contracts § 90 is functionally analogous to reliance on a promise of at-will employment: A applies to B, a distributor of radios manufactured by C for a “dealer franchise” to sell C’s products. Such franchises are revocable at-will. B erroneously informs A that C has accepted the application and will soon award the franchise, that A can proceed to employ salesmen and solicit orders, and that A will receive an initial delivery of at least 30 radios. A expends $1,150 in preparing to do business, but does not receive the franchise or any radios. B is liable to A for the $1,150 but not for the lost profit on 30 radios. Bower v. AT & T Techs., Inc., 852 F.2d 361, 365 (8th Cir.1988) (citing Restatement (Second) of Contracts § 90, cmt. d, ilus. 8 (1979)).   In Bower, the court explained that while the franchise contract cannot be enforced because it is revocable at-will, the would-be franchisee is still entitled to reliance damages.    The Court noted that jurisdictions that recognize promissory estoppel in an at-will context limit available relief to reliance damages.  Since the promissory estoppel claim rested on the same fraudulent statement as the negligent misrepresentation claim, Plaintiff’s reliance damages would be the same.  

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Bruce Luchansky Nov 15 No Comments

Recent Failure to Hire Case with Vigorous Arguments presented by Defendant Employer: Part One

 I came across a recent case that presented fascinating and vigorous legal arguments by a Defendant employer regarding a plaintiff prospective employee’s claim of failure to hire. I will present this case in two articles.   Plaintiff alleged that the Defendant did not fulfill its promise of employment and sued to recover damages arising from his reliance on the proffered job. The facts are as follows.   I. FACTUAL AND PROCEDURAL BACKGROUND   Plaintiff began looking for new employment in October 2013 while working at Toyota Motor Credit. On October 8, Plaintiff interviewed with Defendant’s representative, Kyle Brumby, where Plaintiff alleges he “made it crystal-clear” that he was secure in his current job and would only accept a position with Defendant if it provided greater compensation.  After the interview, Plaintiff received a written job offer from Defendant for a position as a Senior Program Analyst with a salary of $54,000, a start date of October 28, 2013, and instructions to complete employment forms. The written job offer also stated: “[t]he offer of employment is contingent upon successful completion of the reference background checks,” “contingent upon your representation that you are not bound by the terms of any agreement with a previous employer,” and “contingent upon [Plaintiff’s] execution of the Company’s standard employee agreement.”  The offer was further contingent on acceptance by October 16, 2013. Plaintiff alleges that Defendant did not disclose that employment was subject to any other contingencies and, instead, represented that the prospect of employment was “rock-solid.”    Plaintiff accepted Defendant’s offer and resigned from his former job to be available on the specified start date. On October 21, Defendant informed Plaintiff that it would need to modify the start date pending government approval of Plaintiff’s employment. Plaintiff alleges that prior to that date, “Defendant had not represented … that further review, or any other review, of Plaintiff’s credentials was required.” At Brumby’s request, Plaintiff met with Brumby again on October 24 to, allegedly, begin job training. During this meeting, Plaintiff alleges that “Brumby acted as if … Plaintiff had the job in hand.”    On October 28, Plaintiff emailed Defendant requesting information on his new start date and Defendant responded that Plaintiff would hear back the next day. Instead, Defendant did not communicate with Plaintiff until November 4, and shortly thereafter informed Plaintiff that his résumé was rejected by the government. Defendant thereafter allegedly promised it was not going to leave Plaintiff “out to dry” and told Plaintiff he needed to resign so that Defendant could offer him another position.  Plaintiff was perplexed and disturbed by this request and refused to resign until he was offered another position.  No replacement offer was ever made, and, in early November, Plaintiff alleges that Defendant informed him that he would not be hired.   Plaintiff brought suit claiming negligent misrepresentation, promissory estoppel, and quantum meruit for services rendered during the interview process. Plaintiff requested both compensatory and punitive damages.    A. Negligent Misrepresentation   The Maryland Court of Appeals recognizes five elements of a negligent misrepresentation claim: (1) the defendant, owing a duty of care to the plaintiff, negligently asserts a false statement; (2) the defendant intends that his statement will be acted upon by the plaintiff; (3) the defendant has knowledge that the plaintiff will probably rely on the statement, which, if erroneous, will cause loss or injury; (4) the plaintiff, justifiably, takes action in reliance on the statement; and (5) the plaintiff suffers damage proximately caused by the defendant’s negligence.   To determine a party’s duty of care, Maryland assesses (1) the harm likely to result from a failure to exercise due care and (2) the relationship that exists between the parties.  When the harm is limited to economic loss, Maryland additionally requires an “intimate nexus” between the parties similar to “contractual privity or its equivalent.”    Relying on Weisman and Lubore v. RPM Assocs., Inc., 109 Md.App. 312, (Md.Ct.Spec.App.1996), Defendant argued in its Motion that Maryland courts have only found this intimate nexus in the context of contractual negotiations between high level executives and have refused to find such a nexus in the context of offers of at-will employment.   Plaintiff responded, correctly, that the Maryland Court of Appeals had directly rejected Defendant’s arguments, citing Griesi v. Atl. Gen. Hosp. Corp., 360 Md. 1, 756 A.2d 548, 556–57 (2000). Plaintiff further noted that Defendant misconstrued Lubore, which held: “[W]e do not read Weisman to eliminate, in all cases, the existence of an “intimate nexus” when the parties are … negotiating for at-will employment. Weisman simply does not address the issue.” Lubore, 674 A.2d at 559–60.   Instead of the categorical approach urged by Defendant, the Court of Appeals in Griesi evaluated the “intimate nexus” requirement based on the parties’ reasonable knowledge of the purpose of the contact, the reasonable reliance on the information exchanged, and possibility of injury if the information is false or incomplete. 756 A.2d at 554–55. Specifically, the court found a personal interview, several telephone conversations, and a written offer for a non-executive position sufficient to establish the requisite intimate nexus. Id. at 550, 556, 559.   In this case, the Court found that the facts alleged by Plaintiff were  similar to those found dispositive in Griesi: the parties conversed over the telephone and email, interviewed in person, and exchanged written documentation of an offer and acceptance with salary terms and a fixed start date. Therefore, the Court found that Plaintiff had pled an intimate nexus sufficient to establish a duty of care.   Defendant also argued that an employer’s right to terminate an employment relationship at will forecloses a claim of negligent misrepresentation. The court in Griesi also rejected this argument. The court reasoned that “[t]he employer’s post-employment right to terminate the employment relationship logically or legally cannot immunize the employer from liability for a tort committed before the termination occurred.” Griesi, 756 A.2d at 558. The court noted that the post-employment right to terminate may impact the plaintiff’s damages, but “has no effect whatsoever on whether he has plead a cognizable claim.” Id.   In its Reply, Defendant raised an entirely new argument that Plaintiff failed to assert a false statement. For purposes of negligent misrepresentation, the

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Bruce Luchansky Nov 14 No Comments

Montgomery County Council approves minimum wage increase to $15 per hour

The Montgomery County Council today unanimously approved Bill 28-17, Human Rights and Civil Liberties – County Minimum Wage – Amount – Annual Adjustment, that will increase the County’s minimum wage to $15 per hour on July 1, 2021 for large employers with 51 or more employees.  Mid-sized employers with between 11 and 50 employees must raise wages to at least $15 per hour on July 1, 2023. Small employers with 10 or fewer employers must pay workers $15 per hour on July 1, 2024.  Non-profit organizations with 501(c)(3) designations and eligible service providers must raise wages to $15 per hour by July 1, 2023, unless they are considered a small employer.  In addition, Bill 28-17 provides that the minimum wage must be adjusted annually for inflation according to the Consumer Price Index for urban wage earners and clerical workers (CPI-W), starting July 1, 2022.  This bill also provides for an opportunity wage, which is equal to 85 percent of the County’s minimum wage for employees under the age of 20 for the first six months of employment. The County’s current minimum wage is $11.50 per hour. Today’s vote makes Montgomery County among the first jurisdictions in the nation to approve a $15 per hour minimum wage.

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Bruce Luchansky Nov 7 No Comments

Federal Court Dismisses Employer’s Counterclaims in FLSA Lawsuit

United States Magistrate Judge Stephanie A. Gallagher recently granted an FLSA Plaintiff employee’s Motion to Dismiss Counterclaims filed by his Defendant employer. Detailed excerpts from the Opinion are presented below. Most importantly, the Court notes that cluttering FLSA lawsuits with the minutiae of other employer-employee relationships would be antithetical to the purpose of the FLSA. I. BACKGROUND On March 29, 2017, Plaintiff Matt Carroll (“Carroll”) filed suit against his former employer, Dan Rainville & Associates, Inc. (“DRA”) alleging violations of the Federal Fair Labor Standards Act (“FLSA”), the Maryland Wage and Hour Law, and the Maryland Wage Payment and Collection Law. DRA engages in the business of selling and installing commercial HVAC and ventilation units.  From January, 2016 through August, 2016, Carroll worked as both an estimator and performed inside sales jobs for which he was paid hourly, in addition to earning a 20% commission on sales.  In this lawsuit, Carroll seeks to recover unpaid overtime wages and commissions from his inside sales job.  On June 12, 2017, DRA filed an Amended Counterclaim asserting the following claims under Maryland law: (1) Breach of Contract — Return of Unearned Draws; (2) Breach of Contract — Noncompetition and Non-solicitation Agreement; (3) Breach of Contract — Use of Confidential Information; (4) Violation of Maryland Trade Secrets Act; (5) Intentional Interference with Business Relations; (6) Detinue; and (7) Civil Conspiracy. Carroll moved to dismiss all seven counterclaims under Federal Rule of Civil Procedure 12(b)(1), citing the Court’s lack of subject-matter jurisdiction.  II. LEGAL ANALYSIS Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534 , 541  (1986). Subject-matter jurisdiction cannot be conferred by the parties, nor can a defect in subject-matter jurisdiction be waived by the parties. Brickwood Contractors, Inc. v. Datanet Eng’g, Inc., 369 F.3d 385 , 390 (4th Cir. 2004). Thus, questions of subject-matter jurisdiction may be raised at any point during the proceedings and may — or, more precisely, must — be raised by the court on its own. Id.  Pursuant to the Judicial Improvement Act of 1990, federal courts have supplemental jurisdiction over all other claims that are so related to claims in the action that they form part of the same case or controversy under Article III of the United States Constitution.  See Shanaghan v. Cahill, 58 F.3d 106 , 109 (4th Cir. 1995) (quoting 28 U.S.C. § 1367(a)). To form part of the same case or controversy as the federal claims, the state claims must “derive from a common nucleus of operative fact, such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding.” See Hinson v. Norwest Fin. S.C., Inc., 239 F.3d 611 , 615 (4th Cir. 2001). Thus, where a federal court has original federal question or diversity jurisdiction over a claim, parties may append state law claims over which federal courts would otherwise lack jurisdiction, provided they derive from a “common nucleus of operative fact.” See Cahill, 58 F.3d at 109 . A compulsory counterclaim arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim, while a permissive claim does not.  Id.  To determine whether a counterclaim is compulsory, courts look to: (1) whether the issues of fact and law raised in the claim and counterclaim are largely the same; (2) whether res judicata would bar a subsequent suit on the party’s counterclaim, absent the compulsory counterclaim rule; (3) whether substantially the same evidence supports or refutes the claim as well as the counterclaim; and (4) whether there is any logical relationship between the claim and counterclaim. Painter v. Harvey, 863 F.2d 329 , 331 (4th Cir. 1988). Contrary to a compulsory counterclaim, a permissive counterclaim must have an independent jurisdictional base such as federal question or diversity jurisdiction. See Sue, 538 F.2d 1048, 1051 (4th Cir. 1976). The Court Lacks Subject-Matter Jurisdiction Over DRA’s Counterclaims Since diversity jurisdiction is lacking in this case and DRA’s counterclaims are based solely on state law, for the Court to exercise subject-matter jurisdiction over the counterclaims, they must be “compulsory” pursuant to Federal Rule 13(a). Because the four-pronged inquiry cited in Painter weighs against a finding that DRA’s counterclaims arose out of the same transaction or occurrence that created Carroll’s claims, the counterclaims are not “compulsory,” and the Court lacks subject-matter jurisdiction. First, the issues of fact and law raised in the claims and counterclaims are not largely the same. Carroll’s claims allege only that DRA violated FLSA and Maryland’s Wage and Hour Law by not paying him earned overtime wages and commissions on sales.  DRA’s counterclaims, meanwhile allege that Carroll: (1) breached his contract by taking his salary in the form of draws against future commissions and terminating his employment with a $20,086.90 deficit; (2) breached his non-compete agreement and tortiously interfered with DRA contracts by forming his own business, “JNG,” and soliciting DRA customers; (3) breached his contract and violated the Maryland Trade Secrets Act by disclosing DRA’s confidential information, such as pricing, contact lists, sales orders, and product data to his new business; and (4) remains in the wrongful possession of DRA’s confidential information and unearned draws.  In other words, the only connection between Carroll and DRA’s claims is the employee-employer relationship. Indeed, the legal issues raised by minimum wage and overtime laws are distinct from those raised by the laws of breach of contract, breach of fiduciary duty, violation of the Maryland Trade Secrets Act, intentional interference with business relations, detinue, and civil conspiracy. Thus, because Carroll’s claims deal only with the question of the number of hours worked and the compensation paid, the state counterclaims necessarily involve different and separate factual matters. Second, res judicata will not bar a subsequent suit on DRA’s counterclaims. Res judicata bars the re-litigation of a claim if: (1) the parties are the same in both the prior and subsequent litigation; (2) the claim presented in the subsequent action is identical to that determined or that which could have been raised and determined in the prior litigation; and (3) there was a final judgment on the

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Bruce Luchansky Oct 25 No Comments

Defendant’s Motion for Summary Judgment Loses in Sexual Harassment Case

In Allen v. TV One, LLC, No. DKC 15-1960, 2017 BL 355934, (D. Md. Oct. 04, 2017), Judge Chasanow denied the Defendant employer’s Motion for Summary Judgment, iterating important points of employment discrimination law.   FACTS Plaintiff began working as Director of Talent Relations and Casting for Defendant in 2004.  Among other responsibilities, Plaintiff was charged with booking talent for TV One shows, including TV One-on-One, hosted by TV One’s founder, chairperson, and board member Catherine Hughes. Ms. Hughes is also the mother of TV One Chief Executive Officer and President Alfred Liggins. Plaintiff was subjected to a pervasive pattern of sexual harassment and gender discrimination by Ms. Hughes during the course of her employment at TV One. The crux of Plaintiff’s claim was that Ms. Hughes insisted repeatedly that Plaintiff take up a romantic relationship with Mr. Liggins. Ms. Hughes fueled workplace rumors that Plaintiff and Mr. Liggins were romantically involved. Once Ms. Hughes realized that Plaintiff was not going to marry Mr. Liggins, she began to “baselessly attack” Plaintiff’s job performance, including publicly berating Plaintiff in front of her co-workers; demanding that Plaintiff make requests for talent in a manner contrary to standard industry protocol; and chastising Plaintiff for taking time off for her wedding and honeymoon in 2012.  Plaintiff’s employment was terminated in late June 2014 following a dispute with Ms. Hughes regarding a missed opportunity for booking a performance for a music event. The Parties dispute the facts regarding a phone call between Plaintiff and Ms. Hughes, with each side accusing the other of yelling and speaking unprofessionally during the phone call. Plaintiff then called and emailed Human Resources Vice President Sharon Alston complaining about harassment by Ms. Hughes. Meanwhile, Ms. Hughes contacted Jackie Kindall, Senior Vice President of Human Resources, and told her about the call with Plaintiff. Ms. Hughes indicated her desire to terminate Plaintiff. Thereupon, Ms. Kindall and Ms. Alston conducted an investigation into the events. When Plaintiff spoke with Ms. Alston on the morning of June 24 regarding her voice message and e-mail sent on June 23, Plaintiff recounted the phone conversation with Ms. Hughes on June 22 and provided a full history of her treatment by Ms. Hughes at TV One. In response, Ms. Alston informed Plaintiff that she was being placed on administrative leave pending an investigation.  In the afternoon on June 24, Ms. Alston met with Ms. Kindall, Linda Vilardo, Radio One’s Chief Administrative Officer, and in-house legal counsel, to discuss her investigation of the dispute between Plaintiff and Ms. Hughes. According to Defendant, at that meeting, Ms. Vilardo determined that Plaintiff’s employment should be terminated for insubordination. Plaintiff was not notified of the decision to terminate her employment on June 24 because, on June 25, Ms. Kindall was preparing a severance package to be offered to Plaintiff. On the morning of June 26, Plaintiff sent to Ms. Alston a written complaint against Defendant for gender discrimination and harassment. Later that day, Plaintiff was informed by letter that her employment had been terminated effective June 24.  LEGAL ANALYSIS The Court iterated an important point of law within employment discrimination, namely, that Title VII protects activity in opposition not only to employment actions actually unlawful under Title VII, but also employment actions an employee reasonably believes to be unlawful.  In this case, the Plaintiff put forth sufficient evidence that, prior to her complaint on June 23, she was subjected to gender-based harassment in the workplace, including Ms. Hughes repeatedly urging a romantic relationship between Plaintiff and Mr. Liggins and Ms. Hughes publicly berating Plaintiff in front of co-workers once Ms. Hughes realized that Plaintiff was not interested romantically in Mr. Liggins. In light of the facts and record presented, the Court found that there was sufficient evidence that Plaintiff held a subjectively and objectively reasonable belief that Ms. Hughes’ offensive conduct, because of her refusal to marry Mr. Liggins, was an unlawful employment practice. Therefore, Plaintiff had put forth sufficient evidence that she engaged in protected activity when she made a verbal complaint to Ms. Alston on June 23. Two additional important points involved Defendant’s timing and reason for termination.  1. Causal Connection between complaint of harassment and termination.  Defendant argued that even if Plaintiff engaged in protected activity (complaining about sexual harassment), Plaintiff cannot show that but for her protected activity she would not have been terminated because (1) regardless of any protected activity, Defendant would have fired Plaintiff for being belligerent and insubordinate to Ms. Hughes on June 22, 2014; and (2) Plaintiff’s alleged protected activity came after Defendant’s decision to terminate had been made on June 24.  The Court disagreed, noting that normally, very little evidence of a causal connection is required to establish a prima facie case. If the employer takes the adverse employment action shortly after learning about the protected activity, courts may infer a causal connection between the two. Where temporal proximity is the only evidence of causation, however, the temporal proximity must be very close, as it was in this case.  According to Defendant, the decision to terminate Plaintiff was made on June 24 and communicated to Plaintiff on June 26. Defendant argued that because it made a tentative decision to discharge Plaintiff on June 24, before Plaintiff submitted her written complaint on June 26, the fact that it proceeded with its decision to discharge Plaintiff does not demonstrate causality. Defendant’s argument failed, however, because even assuming that it made a tentative decision to terminate Plaintiff on June 24, that decision was made the day after Ms. Alston learned about Plaintiff’s complaint alleging harassment by Ms. Hughes on June 23. The Court found that there was sufficient evidence of a causal connection between the protected activity and the adverse employment action. Therefore, Plaintiff had put forth sufficient evidence to support her retaliation claim. 2. Defendant’s “legitimate, non-discriminatory reasons for Plaintiff’s termination.” Defendant set forth legitimate, non-discriminatory reasons for Plaintiff’s termination, i.e., that she was terminated for being belligerent and insubordinate to Ms. Hughes on June 22. Thus, the burden returns to Plaintiff to

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Bruce Luchansky Oct 9 No Comments

Recent Hostile Work Environment Claim Loses in Maryland Federal Court

To establish a hostile work environment claim in violation of Title VII of the Civil Rights Act of 1964, a Plaintiff must show that: (1) he experienced unwelcome harassment; (2) the harassment was based on sex; (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create a hostile work environment; and (4) some basis exists for imputing liability on the employer. The Plaintiff in Olekanma v. Wolfe, No. DKC 15-0984, 2017 BL 336103 (D. Md. Sept. 22, 2017), failed to provide a basis to impute liability to his employer, therefore, his hostile work environment claim was dismissed. The Plaintiff was employed by The Maryland Department of Public Safety & Correctional Services (“MDPSCS”) as a corrections officer. The Plaintiff alleged that Electa Awanga, a nurse employed by Wexford Health Sources Incorporated (“Wexford”) — MDPSCS’s medical contractor, repeatedly sexually harassed him.  The Plaintiff’s allegations of sexual harassment revolved around the actions of a single person, Ms. Awanga, who was not employed by the Defendants but by a contractor. When a harassment claim is based on the actions of a non-supervisory coworker, employers are liable only for their own negligence in failing, after actual or constructive knowledge, to take prompt and adequate action to stop it.  An employer can be deemed to have actual knowledge if the employer, or high-echelon officials of an employer organization, are aware of the conditions.  An employer can be deemed to have constructive knowledge if a reasonable employer, intent on complying with Title VII, would be aware of the harassing conduct. The Plaintiff had not alleged that a reasonable employer should have known about the harassment nor identified any inadequacy in his employer’s compliance program.  Thus, there was no basis to find constructive knowledge.  The Plaintiff admitted that he did not complain initially when the conduct happened.  He alleged, however, that a Sergeant Emenike saw Ms. Awanga spill a drink on him and that Sergeant Emenike ignored his complaints about Ms. Awanga. The complaint contained no information about what Plaintiff told Sergeant Emenike and whether it related to sexual harassment. Sergeant Emenike was alleged to be with the Plaintiff when the drink was spilled and also when Ms. Awanga yelled at Plaintiff after Plaintiff told her to throw away food she was taking home from Jessup Correctional Institute (“JCI”). Neither of these incidents, the court ruled, would put a reasonable person on notice of sexual harassment. In addition, even if Sergeant Emenike had notice, the Plaintiff had not pled any facts to support a finding that Sergeant Emenike was the type of employee whose knowledge could be imputed to the employer. The Plaintiff had not alleged that Sergeant Emenike was a management-level employee or that he had authority over employees. Indeed, Plaintiff’s own actions belied the point. He went directly to the Warden, Assistant Warden, and Chief of Security when he wanted to give notice of the alleged harassment. This decision suggested to the court that these were the employees whose knowledge could have been imputed to the employer. Thus, regardless of what Sergeant Emenike knew, his knowledge could not be imputed to the employer.  The Plaintiff allegedly reported the sexual harassment to the shift captain, Warden, Assistant Warden, and Chief of Security.  To demonstrate negligence, the Plaintiff would need to show that, after learning of the conditions, his employer failed to take prompt remedial action designed to end the harassment.  Here, however, the Plaintiff alleged no act of harassment occurred after his complaint, and he admitted that he was removed from the environment within two weeks of his email.  Moreover, the attachments to the Plaintiff’s complaint negated any possible claim of employer negligence. Despite being on leave, Assistant Warden Campbell immediately responded to the Plaintiff’s email, advised the Plaintiff of his right to file an EEO complaint, explained that a supervisor could help him file his complaint, and explained that JCI needed more information such as specific dates, times, and actions to start an investigation.  After receiving the email, Plaintiff did not immediately file the EEO complaint and decided to wait until Assistant Warden Campbell came back from his vacation to pursue the matter.  Assistant Warden Campbell, while still on vacation, responded again and reiterated his request for a formal complaint with sufficient information to begin an investigation.  Because of complaints lodged against Plaintiff, by the time Assistant Warden Campbell returned, Plaintiff had already been removed from the alleged hostile work environment.  Thus, Defendants could not have been negligent because they remedied the problem, albeit for different reasons, before Plaintiff had even provided them with all the information. In sum, the Plaintiff had failed to allege sufficient facts to show that Defendants knew about the harassment and acted negligently, therefore, his claim of a hostile work environment under Title VII was dismissed.  

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Bruce Luchansky Sep 25 No Comments

Landscape Laborers’ FLSA Claims Survive Motion to Dismiss

In Aviles-Cervantes v. Outside Unlimited, Inc., No. CV RDB-16-1214, 2017 WL 3916985 (D. Md. Sept. 7, 2017), Plaintiffs alleged, inter alia, that Defendant Outside Unlimited failed to pay workers for approximately 1–2 hours of work per day for time spent loading and unloading trucks and traveling from Outside Unlimited’s “yard” to job sites and back again.   Outside Unlimited contended that Plaintiffs’ FLSA claims relating to paychecks received before April 22, 2014 were time-barred under the FLSA’s default limitations period. The  FLSA has a two-tiered statute of limitations. For ordinary violations there is a two-year statute of limitations. For ‘willful’ violations there is a three-year statute of limitations. Plaintiffs alleged violations of the FLSA with respect to their employment by Defendant in 2013, 2014, and 2015.  Although they did not file the initial Complaint until April 22, 2016, Plaintiffs claimed “willful” violations of the FLSA. Defendant argued that Plaintiffs failed to plausibly allege “willfulness” and, accordingly, did not allege entitlement to the FLSA’s three-year limitation period. Therefore, Outside Unlimited moved to dismiss Plaintiffs’ FLSA claims arising before April 22, 2014, two years prior to their filing of the initial Complaint.    Because the question of whether a defendant’s alleged FLSA violations were ‘willful’ is not an element of plaintiffs’ claims’ but rather an anticipation of a limitations defense that the defendant may raise, plaintiffs did not need to allege specific facts that the defendant willfully violated the FLSA.    Even if the Plaintiffs were required to plead “specific facts” in support of their allegations of “willfulness” at this stage of the proceedings, the Court found they had adequately done so. An employer’s violation of the FLSA is willful if the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute. Plaintiffs alleged that Outside Unlimited acted willfully or with reckless disregard in failing to pay them and the other class members in conformance with the requirements of the FLSA. Specifically, Plaintiffs claimed that they and the other class members performed work under their contracts with Outside Unlimited, but Outside Unlimited intentionally did not record all of their compensable hours of work, despite having been made aware through its agent and through other means of the requirement of the federal and state minimum wage laws. They further alleged that Defendant intentionally did not record all of their compensable hours of work.    For these reasons, Outside Unlimited’s Motion to Dismiss was denied by the Court regarding Plaintiffs’ entitlement to the three-year statute of limitations for “willful violations” of the Fair Labor Standards Act.   Outside Unlimited also argued that the FLSA does not require Plaintiffs to be paid for their morning commute. Plaintiffs alleged that Outside Unlimited failed to pay for time in the morning during which workers were required to assemble in the yard to receive crew assignments and for time spent traveling to the first job, failed to pay for the time during which workers were driven between their housing units and the yard, and failed to pay for the time in the afternoon they spent returning to the yard from the last jobsite to unload and load the trucks in preparation for the next workday’s assignments. Defendant objected that this “commuting” work time was not “indispensable and integral” to the workers’ “principal activity” and, accordingly, moved to dismiss Plaintiffs’ FLSA claims to the extent they relied on those allegations.   The Portal–to–Portal Act of 1947, which amended the FLSA, exempts from compensation two types of activities that had previously been treated as compensable work. First, the act provides that ’employers are not liable for an employee’s time spent ‘walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform.’ And second, the act provides that ’employers are not liable for an employee’s time spent on ‘activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.’ To determine an employer’s liability for unpaid wages and overtime, the key inquiry is whether such activities are properly labeled principal activities under the Portal–to–Portal Act.   The Supreme Court determined that the test for whether an activity is ‘integral and indispensable’ is tied to the productive work that the employee is employed to perform. That is, an activity is only ‘integral and indispensable’ to the performance of an employee’s principal activities if ‘it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.   This Court has recently held that a sewer cleaning contractor’s failure to compensate laborers for their daily “commute” from Sparrows Point in Baltimore, Maryland to a Washington, D.C. job site was not categorically exempt from coverage under the FLSA. Similar to the Plaintiffs’ allegations in this case, the laborers were required to travel to a company-owned parking lot every morning, where they loaded trucks with equipment necessary for their work and then transported those trucks to the Washington, D.C. job site. Although the laborers were “commuting” from Sparrows Point to Washington, DC, they could not perform their work at the job site without the tools and work equipment they transported. Likewise, Plaintiffs in this case alleged that they had to travel to the yard to receive crew assignments and to load and unload trucks in preparation for their work assignments. This Court has similarly held that time spent by laborers at the end of their work duties driving their employers’ equipment back to their employers’ place of business and returning the equipment to a secure location was ‘integral and indispensable to their principal activity as laborers and construction workers’ and thus ‘should have been compensated’ under the FLSA. Finally, in another case, this Court denied laborers’ claims for compensation as to pre-work commute to their employer’s optional worker pick-up location at a company-owned warehouse only because no reasonable jury could find that plaintiffs were required to meet at the

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Bruce Luchansky Sep 8 No Comments

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