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Severance Packages

Towson, MD employment attorney Bruce Luchansky answers the question: “What should I do if I was fired from my job, but I have been offered a severance package?“ You need to do 3 things when your former employer offers you a severance package: (1) Consider whether you have any legal claims against the company, such as unpaid overtime or discrimination claims. Severance agreements always will require you to release all of your claims in exchange for the severance pay; (2) Read the agreement carefully.  Employers often put in provisions that favor themselves and which the employee may not want to agree to, such as a covenant not-to-compete; and (3) Consider trying to negotiate a better package. Employers sometimes will give you a modest increase in the offer just because you asked, but as long as the request is reasonable, they won’t pull their original offer off the table. If you need assistance with these steps, call an experienced Maryland employment law attorney.

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Bruce Luchansky Feb 12 No Comments

Maryland Court Rules in Favor of Personal Liability of Employers for Wage Payment Claims

Imagine the following scenario. You work for a small company, ABC Widgits Corp., where the owner is involved in the day-to-day operations of the Company.  She hired you, she established your hourly rate, and she set your schedule.  And when she fired you, she refused to pay you your last paycheck, claiming that you don’t deserve it because of your poor performance. Obviously, you can sue the company for your last paycheck.  The claim would be filed under the Maryland Wage Payment and Collection Law, which permits you under certain circumstances to recover up to treble damages plus attorney’s fees for unpaid wages. The question is – can you sue the company’s owner as well?  In other words, is the owner herself also considered to be an “employer” under the Maryland Wage Payment and Collection Act, just like the company, ABC Widgits Corp.? The Maryland Court of Special Appeals, in a case of first impression, recently said, Yes.  In the case of Campusano v. Lusitano Construction LLC, the Court ruled that when answering the question, “Who is the employer?” under the Maryland Wage Payment and Collection Law, the answer is determined by the “economic realities” of the situation.  Therefore, an owner or supervisor of an employee may be considered an “employer” (and, therefore, can be sued individually) when that individual “controls” the employment relationship.  Although the test for “control” is not supposed to be applied “mechanistically,” the Court identified the following 4 factors, which may be considered for identifying an “employer.”  Those factors are: whether the alleged employer (1) had the power to hire and fire the employees; (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.  If these factors are met, an owner or supervisor may be held personally responsible for unpaid wages, including a claim for up to treble damages and attorneys’ fees. Schedule a Consultation If you have questions about issues that arise in the Maryland workplace, call the employment law attorneysat Luchansky Law for guidance.  Bruce M. Luchansky and Judd Millman have decades of experience in handling employment law matters, and they regularly assist employees and employers sort through legal issues that arise in the workplace.  Call them at 410.522.1020 to schedule a consultation.

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Bruce Luchansky Feb 7 No Comments

Anatomy of "Non-Compete" Agreements

Most Maryland companies that utilize salespeople to conduct their business are familiar with “Non-Compete Agreements.”  These are the agreements that prevent an employee from leaving the company and taking all of the company’s customers with them to their new employer.  Most companies don’t know, however, exactly what is in these “non-competes.”  In many cases, the agreement is one that was drafted by a Maryland employment lawyer years ago.  Often, it has been copied over and over again, perhaps making changes here and there, without much thought going into whether the agreement still is valid, or whether it fits the particular circumstances of a particular employee.  Sometimes employers just grab a form off of the internet.  Employees often sign these agreements without considering exactly what they are signing, simply resigned to the fact that if they want to get the job, they have to sign the document. We think that both Maryland employers and employees should know a little bit more about these important agreements.  And the starting point is to know what the standard restrictions are that you can expect to find in a “Non-Competition Agreement.” Non-Competition Provisions v. Non-Solicitation Provisions in Maryland There are two different kinds of restrictions that a non-competition agreement can, and often does, contain.  The broader provision – meaning, the one that restricts the employee more – is called a “non-competition” clause or provision.  A non-competition provision prohibits a former employee from doing any kind of work for a period of time after leaving the company that would compete with the former employer.  In most cases, that means that it prohibits the employee from setting up his own competing business, or working for a competitor, usually for a period of 1 – 2 years.  By having the employee “sit on the sidelines” in the market for a period of time, the company gives itself time to reestablish its relationships with the customers previously serviced by its former employee.  Of course, this provision is very harsh for an employee, and the courts do not like them since they handcuff an employee’s right to earn a living without interference.  Nevertheless, as long as these provisions are reasonable in geographic scope and length of time, the courts will uphold them. A “non-solicitation” clause or provision, however, is narrower – meaning, it restricts the employee less than the “non-compete” provision.  A “non-solicitation” clause simply prohibits an employee from soliciting the employee’s former customers for a period of time after leaving the company.  There is no prohibition against the former employee setting up a competing business, or going to work for a competitor right away after leaving his or her employment.  The employee simply is restricted from going after the customers he or she previously serviced at the old job for a period of time, which usually is between 1 – 2 years.  Employees need to know that they should not expect to get around a non-solicitation clause by being shrewd, for example, by working at a new company and having one of their new co-workers go after their old accounts (instead of contacting those previous customers directly).  Plans like that will not succeed.  These provisions are universally drafted to prevent employees from soliciting their old accounts either “directly or indirectly” – and the courts know very well what an “indirect” solicitation looks like.  Nevertheless, as long as the employee leaves the old accounts alone, they get the benefit of getting to work right away, without having to sit on the sidelines of their chosen profession, job, or industry. In addition to providing for non-solicitation of accounts or customers, “non-compete agreement” also usually contain a provision that prohibits former employees to solicit their previous co-workers to leave the old company with them. Expect to Find Both a “Non-Compete” and a “Non-Solicitation” Provision in a “Non-Competition Agreement” Despite the win-win proposition that a non-solicitation clause provides and which makes it a more well-balanced approach toward imposing these restrictions, most Non-Competition Agreements usually contain both a non-competition clause and a non-solicitation clause.  There are many reasons that contribute to this practice, including institutional habit, and a perception that the non-compete provides greater protection for a former employer than a non-solicitation agreement would.  Nevertheless, limiting an employee’s post-employment restrictions to non-solicitation provisions, rather than non-competition clauses, increasingly is the sign of a more evolved and well-balanced working environment, and former employees often are more motivated to comply voluntarily with non-solicitation agreements than non-competition agreements. As with all legal agreements, the Non-Competition or Non-Solicitation Agreement must be drafted with care.  At Luchansky Law, our Maryland employment law attorneys regularly draft or review many different kinds of agreements relating to the workplace, including employment agreements, severance agreements, settlement agreements and releases, separation agreements, employee handbooks, confidentiality agreements, and, of course, non-competition and non-solicitation agreements. Schedule a Consultation If you need an employment-related document drafted or reviewed, call Bruce Luchansky, Esq. at Luchansky Law, 410.522.1020.  Luchansky Law is a law firm located in Towson, Maryland that is dedicated to the practice of Maryland Workplace Law, addressing legal issues that arise in connection with the Maryland workplace.  Call our Maryland employment lawyers with your question today for a consultation.

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Bruce Luchansky Dec 14 No Comments

Anatomy of “Non-Compete” Agreements

Most Maryland companies that utilize salespeople to conduct their business are familiar with “Non-Compete Agreements.”  These are the agreements that prevent an employee from leaving the company and taking all of the company’s customers with them to their new employer.  Most companies don’t know, however, exactly what is in these “non-competes.”  In many cases, the agreement is one that was drafted by a Maryland employment lawyer years ago.  Often, it has been copied over and over again, perhaps making changes here and there, without much thought going into whether the agreement still is valid, or whether it fits the particular circumstances of a particular employee.  Sometimes employers just grab a form off of the internet.  Employees often sign these agreements without considering exactly what they are signing, simply resigned to the fact that if they want to get the job, they have to sign the document.  We think that both Maryland employers and employees should know a little bit more about these important agreements.  And the starting point is to know what the standard restrictions are that you can expect to find in a “Non-Competition Agreement.” Non-Competition Provisions v. Non-Solicitation Provisions in Maryland There are two different kinds of restrictions that a non-competition agreement can, and often does, contain.  The broader provision – meaning, the one that restricts the employee more – is called a “non-competition” clause or provision.  A non-competition provision prohibits a former employee from doing any kind of work for a period of time after leaving the company that would compete with the former employer.  In most cases, that means that it prohibits the employee from setting up his own competing business, or working for a competitor, usually for a period of 1 – 2 years.  By having the employee “sit on the sidelines” in the market for a period of time, the company gives itself time to reestablish its relationships with the customers previously serviced by its former employee.  Of course, this provision is very harsh for an employee, and the courts do not like them since they handcuff an employee’s right to earn a living without interference.  Nevertheless, as long as these provisions are reasonable in geographic scope and length of time, the courts will uphold them. A “non-solicitation” clause or provision, however, is narrower – meaning, it restricts the employee less than the “non-compete” provision.  A “non-solicitation” clause simply prohibits an employee from soliciting the employee’s former customers for a period of time after leaving the company.  There is no prohibition against the former employee setting up a competing business, or going to work for a competitor right away after leaving his or her employment.  The employee simply is restricted from going after the customers he or she previously serviced at the old job for a period of time, which usually is between 1 – 2 years.  Employees need to know that they should not expect to get around a non-solicitation clause by being shrewd, for example, by working at a new company and having one of their new co-workers go after their old accounts (instead of contacting those previous customers directly).  Plans like that will not succeed.  These provisions are universally drafted to prevent employees from soliciting their old accounts either “directly or indirectly” – and the courts know very well what an “indirect” solicitation looks like.  Nevertheless, as long as the employee leaves the old accounts alone, they get the benefit of getting to work right away, without having to sit on the sidelines of their chosen profession, job, or industry.  In addition to providing for non-solicitation of accounts or customers, “non-compete agreement” also usually contain a provision that prohibits former employees to solicit their previous co-workers to leave the old company with them. Expect to Find Both a “Non-Compete” and a “Non-Solicitation” Provision in a “Non-Competition Agreement” Despite the win-win proposition that a non-solicitation clause provides and which makes it a more well-balanced approach toward imposing these restrictions, most Non-Competition Agreements usually contain both a non-competition clause and a non-solicitation clause.  There are many reasons that contribute to this practice, including institutional habit, and a perception that the non-compete provides greater protection for a former employer than a non-solicitation agreement would.  Nevertheless, limiting an employee’s post-employment restrictions to non-solicitation provisions, rather than non-competition clauses, increasingly is the sign of a more evolved and well-balanced working environment, and former employees often are more motivated to comply voluntarily with non-solicitation agreements than non-competition agreements. As with all legal agreements, the Non-Competition or Non-Solicitation Agreement must be drafted with care.  At Luchansky Law, our Maryland employment law attorneys regularly draft or review many different kinds of agreements relating to the workplace, including employment agreements, severance agreements, settlement agreements and releases, separation agreements, employee handbooks, confidentiality agreements, and, of course, non-competition and non-solicitation agreements.  Schedule a Consultation If you need an employment-related document drafted or reviewed, call Bruce Luchansky, Esq. or Judd Millman, Esq., at Luchansky Law, 410.522.1020.  Luchansky Law is a law firm located in Towson, Maryland that is dedicated to the practice of Maryland Workplace Law, addressing legal issues that arise in connection with the Maryland workplace.  Call our Maryland employment lawyers with your question today for a consultation.

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Bruce Luchansky Dec 14 No Comments

EEOC Issues Fact Sheet to Assist Employers in Applying Employment Discrimination Laws to Scenarios Involving Domestic Violence, Sexual Assault and Stalking

Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination based upon race, color, gender, religion or national origin.  The Americans with Disabilities Act (“ADA”) prohibits discrimination on the basis of disability.  However, neither of these statutes—or any other federal statute—specifically prohibits discrimination against individuals who are the victims of domestic violence, sexual assault or stalking.  Nevertheless, a EEOC Guideance Article published by the Equal Employment Opportunity Commission (“EEOC”) has employers in Maryland scrambling to revise their non-discrimination policies and training materials in order to incorporate the examples listed in that publication.  The EEOC article sets forth an assortment of examples involving victims of sexual assault and domestic violence that result in potentially actionable disparate treatment, harassment and retaliation claims under Title VII and the ADA. An illustration provided by the EEOC of an employment scenario which may violate Title VII includes an employer who fires, or simply decides not to hire, a woman who was the subject of domestic violence out of a concern  for “drama battered women bring to the workplace.”   The EEOC describes this as “disparate treatment.”  Another example provided involves a supervisor who learns that a subordinate has been the subject of domestic abuse and, viewing her as vulnerable, makes sexual advances towards her.  This is prototypical illegal harassment.  And in an example involving unlawful retaliation, the Guidance describes a scenario in which a supervisor threatens not to issue a pay raise to an employee who reported the supervisor for improperly disseminating the employee’s medical information. Illustrations of circumstances which potentially violate the ADA include an employer who performs an internet search of an applicant and discovers that the applicant previously witnessed a rape and, thereafter, required psychological treatment for depression.  The employer, in turn, decides not to hire the applicant out of a concern that she will “require future time off for continuing symptoms.”  This is an example of discrimination based upon a “perceived disability,” which is in violation of the ADA.  In another example, a manager informs an employee’s colleague that the employee suffers from posttraumatic stress disorder resulting from incest.  This is a straightforward instance of violating the ADA by unlawfully disclosing confidential medical information.  The EEOC also describes a case where an employer threatens to illegally retaliate against an employee who complains about the employer improperly disseminating her medical information. Finally, in a scenario which most employers would not immediately recognize as a violation of the ADA, the EEOC describes a situation where an employee does not have any accrued sick leave and is not eligible for leave pursuant to the Family Medical Leave Act (“FMLA”), yet proceeds to request leave from work in order to receive professional treatment for depression resulting from sexual assault.  When the employer refuses to grant the leave on the basis that the company “applies leave and attendance policies the same way to all employees,” the EEOC declares that the employer acted in violation of the ADA by failing to provide the employee with a reasonable accommodation. Here are the takeaways for Maryland businesses from the EEOC’s recent publication:  Employers should carefully review the issues addressed in the EEOC’s article and consider adding them to their anti-discrimination and non-harassment policies and training seminars. Employers must recognize that scenarios involving both employees and applicants for employment that involve domestic violence, sexual assault and stalking create unique situations to which the legal protections of various anti-discrimination laws may apply, requiring employers to approach these cases with particular sensitivity to legal compliance. While EEOC guidance does not constitute legal authority, it nevertheless provides awareness as to how the EEOC interprets applicable statutes, in this case Title VII and the ADA.  Employers must be aware that other federal laws, such as the FMLA, may also apply to employees and applicants who are the victims of sexual assault, domestic violence or stalking.  Employers should consult with their legal counsel to ensure that they are in compliance with all Federal laws, as well as all applicable State and local laws as well.  Maryland employers or employees who have any additional questions about Title VII, the ADA, FMLA or any other issues that might arise in the workplace are welcome to contact attorney Judd G. Millman.  Mr. Millman is licensed to practice law in both Maryland and Texas, and his practice focuses exclusively on employment law.  He regularly counsels both employees and employers on the myriad of legal issues which arise in the workplace.  He can be reached directly at (410) 522-1020, or at judd@luchanskylaw.com.  

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Bruce Luchansky Nov 20 No Comments

Employment Separation Agreements in Maryland

It is often prudent for Maryland employers to utilize separation agreements with departing employees.  Typically, the incentive for the employer is that it receives a written release from the employee as to almost any legal claim the employee might otherwise have the right to assert.  In exchange, the departing employee receives certain benefits defined by the agreement.  While each case is unique and involves individual considerations, we advise our clients to consider the following issues in all scenarios involving separation agreements. Compensation: For a release to be enforceable, the employer must provide the departing employee with some additional benefit beyond what the employee already was entitled to receive (called consideration).  A separation agreement should clearly identify and define all of the wages and benefits to be provided, and should specify that these benefits exceed those to which the employee already is entitled.  In addition, the agreement should state that the amount to be paid will be less all lawful deductions to account for payroll tax withholdings.  The agreement should also provide the manner in which the payment will be made (for example, direct deposit via regular payroll, a separate check, etc.), and the timing of such payment in order to avoid any confusion. General Release and Waiver of Claims:  From an employer’s perspective, this is the critical factor and an area where it is often crucial that management receive appropriate legal guidance.  Releases are tricky for many reasons.  While most employment claims (or potential claims) may be released, some may not.  Legal guidance on this point is very important.  Moreover, some employment law claims must be specifically mentioned for the release to be effective (such as federal age discrimination claims under the ADEA).  While being specific, however, the release also should be broad; it should include a general release of all claims accruing through the date of the release and not be limited only to the specific claims identified.  Finally, it is essential to identify the individuals and entities being released very broadly.  Many Maryland employment law claims may be brought not only against the company, but also against certain individuals in management.  A proper release should include all of these people, as well as any successors and assigns of the company itself.  For all these reasons, employers must receive competent legal counsel to ensure that their releases and waivers are enforceable. Post Employment Cooperation:  It often arises that a departing employee is the only individual in the organization with knowledge of certain issues (for example, a network system administrator or a high ranking member of management).  Ideally, an employer will fully debrief the employee prior to his or her departure and have a succession plan in place several months prior to the employee’s last day. However, since this is rarely possible, the employer will want to reserve the right to continue communicating with the former employee and even retain the ability to assign certain tasks to him or her after the employment relationship has ended.  When this is the case, the terms of the employee’s post-employment assistance must be carefully detailed in the separation agreement. Confidentiality: Typically, an employer will want the terms of the separation agreement to remain confidential.  In order to do so, the agreement must expressly set forth this requirement.  However, it is not always practical for all details of the agreement to remain under seal; accordingly, the agreement may need to identify certain permitted exceptions to confidentiality (for example, conversations between employees and their tax consultants, immediate family members, attorneys, etc.).  In addition, to the extent it is expected that others will inquire with the employee about the separation agreement, it may be appropriate to include a provision expressly stating what the employee is permitted to say in response (for example, when there is an inquiry about the agreement, an employer may want to specify that the employee respond by stating, the issue has been satisfactorily resolved by agreement, and the terms are confidential.) Details Relating to Separation: While the agreement should typically state the employeeв’s last day of employment, there are varying considerations which must be evaluated in determining whether anything beyond that is provided.  In some instances, the employer may be well advised to identify the specific basis for the employee’s separation (for example, resignation, termination, reduction in workforce, etc.).  However, in other situations, it may be to the employer’s advantage to only state that the individual’s employment has concluded.  One factor that is likely to affect this decision is whether the employer intends to contest unemployment benefits. Nondisparagement: After providing an employee with a generous sum of money in exchange for the employee’s separation, the last thing the employer wants is for the employee to subsequently turn to the internet and publish derogatory remarks about his or her former boss.  Accordingly, it can be beneficial for the employer to include terms describing what the employee is permitted, and prohibited, from saying about his or her past employment and any details surrounding the separation.  Issues in this area also often arise in relation to an employee interviewing with their next place of employment.  However, there can be legal limitations on the extent to which the employer can restrict the employee and, as such, an employer would be wise to seek out appropriate legal counsel in this regard. Dispute Resolution: While employers enter into separation agreements as a prophylactic measure in order to minimize future litigation, the terms of the agreements themselves can also lead to disputes (for example, allegations as to a breach of confidentiality, violations of the nondisparagement obligations, etc.).  For this reason, the parties to the agreement often agree to have such disputes resolved via arbitration.  In other situations, the agreement may provide for disputes to be heard in a particular court (for example, state versus federal court).  Irrespective of how the parties ultimately agree to resolve any potential future issues, employers want to be certain that the agreement clearly states the manner in which such disputes will be resolved. 

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Bruce Luchansky Nov 13 No Comments

The Top Three FLSA Mistakes Employers Make

From time to time, new issues arise with regard to the Fair Labor Standards Act (“FLSA”) and how an employer must pay its employees. The FLSA was first drafted in 1932, and many of the issues employers deal with today relate to positions that only developed in the last few decades (see here for a wage and hour lawsuit our employment law firm recently filed dealing with whether a Network Systems Analyst met the administrative exemption). Then there are new arguments asserted on old issues, such as determining if an employee is entitled to pay for “on-call time” when he or she is required to carry a company issued mobile phone and respond to emails. And occasionally we see truly innovative arguments asserted by employers, such as a case our firm recently handled where the owner of a seafood restaurant argued that his waiters were exempt pursuant to a supposed “fish unloaders” exemption. See 29 U.S.C. § 213(a)(5) (while the statute provides that an employee is exempt when employed in a business involving the “unloading” of fish, the Court was not convinced that waiters in a restaurant selling seafood were intended to be included within this group). The above examples, however, are exceptions to the rule. In practice, employment attorneys are rarely surprised by the FLSA violations they discover. Both in the legal opinions we read and the cases we litigate, the same FLSA violations haunt employers over and over again. Accordingly, we have put together a list of the “top three” FLSA violations we have seen in our Maryland employment law practice. While the FLSA is complex and nearly impossible for an employer to fully understand without the assistance of trained legal guidance, avoiding the following three mistakes will go a long way toward ensuring FLSA compliance. Violation #1: The incorrect belief that paying an employee a “salary” by itself exempts the employee from the FLSA’s overtime laws. The assumption seems logical. Overtime is paid at the rate of 1.5 times an employee’s regular rate. (In other words, if an employee earns $10 per hour, the overtime rate is $15 per hour). Therefore, many employers believe that if an employee is paid a salary (as opposed to an hourly wage), the employee is not entitled to overtime. Wrong! Paying an employee a salary is the beginning, not the end, of the inquiry. There are two main points to address here. First, meeting the FLSA’s definition of paying employees “on a salary basis” is trickier than it sounds. See generally 29 U.S.C. §541.602. To begin with, there is a minimum salary threshold. The regulations currently provide that an employee must be paid at least $455 a week to meet the FLSA’s salary requirements. Moreover, even if an employee is paid over $455 per week, employers can destroy an employee’s “salary” status by taking deductions from the employee’s pay in ways that violate what the Regulations consider to be a “salary basis.” Two common examples are: (1) taking deductions from a salary for absences of less than a full day off (for example, if the employer docks the employee for half a day’s absence, it can destroy the “salary basis”); or (2) taking deductions from a salary when the employee is ready and able to work, but the business does not require the employee to work (such as days on which the business is closed due to inclement weather). There are plenty of other examples as well, such as docking an employee’s salary for failure to return expensive computer equipment. As is evident, these requirements are not intuitive and require extensive familiarity with the FLSA and its regulations. Second, most employers are shocked to learn that even if they do properly pay their employees on a salary basis, that is still not enough to exempt the employees from the FLSA’s overtime pay requirements. In addition to a salary, for employees to be exempt they must also meet the “duties” requirements of the FLSA. For most businesses, this means that the employee must be employed in either a “professional,” “administrative,” or “executive” capacity (as defined by the statute and regulations). Determining whether an employee falls into any of these categories requires a careful investigation of each individual employee’s job duties, and consultation with an attorney who is well-versed in the FLSA is highly recommended. Violation #2: Allowing employees to take their meal breaks at their desk. The FLSA requires that all non-exempt employees be paid for all time that they are “suffered or permitted” to work. See 29 C.F.R. § 785.11. However, when an employee is completely relieved from all work related duties, such as during their lunch break, they are generally not entitled to receive compensation. See 29 C.F.R. § 785.11. Seems straightforward enough. However, if an employee is asked to do any work during any part of their meal break (or, in some cases, even if an employee voluntarily elects to perform work) the entire meal period could be considered “working time” and compensable under the FLSA. This could involve something as simple and innocent as asking an employee to eat at his or her desk, to take an item to the post office during lunch, or merely asking them to cover incoming phone calls (even if the phone never actually rings). Over the course of time, the wages an employer could potentially become liable for as a result of employees working through lunch quickly adds up, particularly if this practice is occurring throughout the employer’s business and with an entire department of employees. And keep in mind, if the employee is already working 40 hours per week in addition to the meal period, the employee would be able to recover for unpaid lunches at their overtime premium rate. Violation #3: It’s the industry standard! Adhering to “industry standards” will not insulate employers from liability under the FLSA. A quick Google search will instantly bring up results reporting on the hundreds of millions of dollars businesses have had to pay because

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Bruce Luchansky Nov 6 No Comments

Should Employers Make All of Their Employees Sign Non-Competes?

Most employers know that it is a good idea to have employees sign “non-competes” – that is, agreements that limit the extent to which current employees may compete against the employer if the employee leaves and wants to start working somewhere else.  Many employers get so excited about this protection that they require all of their employees to sign a non-compete, including not only sales people, but also bookkeepers, secretaries, and the clerks working in the mail room. Is such an approach a good idea? To answer the question, we first have to understand an important point about non-competition agreements.  Specifically, we have to understand what interest of the employer non-competes are designed to protect, and by extension, what they are NOT designed to protect. In Maryland, employers primarily are permitted to use non-competition agreements to prevent employees from using their relationships with a business’s customers to the employee’s own advantage once their employment ends.  For example, computer IT companies depend on their technicians to develop relationships with the customers of the business in order to keep the customers satisfied, to earn additional business from them, and to develop good will and future referrals.  In many cases, the companies’ customers do not even know the owner of the IT company.  What they do know is the name of the computer technician who works on their account and that technician’s capabilities.  If the technician were to leave the IT company that employs him, it would be easy for the technician to let “his” customers know that he is going to another company, and it is likely that the customers would follow him to his new place of employment. Non-competes are designed primarily to protect against that situation, a situation that would constitute unfair competition by the employee.  After all, the company hired the technician to develop customer relationships for the benefit of the company.  The employer supported the relationship and encouraged the technician to get to know the customer – but only on behalf of the employer.  It would be fundamentally unfair for the employee to take the company’s investment in this relationship with its customers and steal that investment from the company.  And, therefore, companies may prohibit employees from capitalizing on that relationship for a period of time after the employment ends. But when employers have their secretaries and controllers sign non-competes, they are not following this principle.  Secretaries and controllers – and many other company employees – do not have relationships with the company’s customers.  When it comes to these employees, the employer simply does not have a “protectable interest” that would justify having them sign non-competes.  Making them do so would be at best a waste of time, and at worst, it may undermine the legitimacy of the company’s proper non-competes in the event that a company ever were required to enforce such an agreement against its sales people. Therefore, choosing the employees who should sign a non-compete often is just as important as deciding what terms to include in the non-compete agreement.  If you currently utilize non-competition agreements, or if you have been intending to put these agreements in place, you would benefit from having a Maryland employment law attorney review your approach to this crucial layer of protection for your business.  Call Bruce Luchansky, Esq., of Luchansky Law, the premier employment law firm in Towson, Maryland, at 410.522.1020, and speak to one of our employment law attorneys to make sure that your non-compete is enforceable, and that it will protect the business interests that you worked so hard to develop.

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Bruce Luchansky Oct 30 No Comments

Can I take time off to vote in Maryland?

  Election day is Tuesday, November 6, 2012 – less than two weeks away!  Working a full-time schedule while juggling all of our other responsibilities has many employees wondering whether they are permitted, under Maryland law, to take time off to vote. Most employees are surprised to learn that under section 10-315 of the Maryland Election Code, every Maryland employer is required to allow any employee who claims to be a registered voter up to two hours off from work to vote.  To be eligible for the benefit, however, the employee must not otherwise have two consecutive off-duty hours during the time that the polls are open.  In other words, if an employee’s working hours start less than two hours before the polls open and ends less than two hours before the polls close, then the employer is obligated to give the employee two hours off during working hours to vote.  For example, an employee who works from 7:30 am to 5:30 pm is entitled to receive two hours of time off to vote if the voting polls are open from 9:00 am to 7:00 pm. The statute provides even more good news for eligible employees.  Not only must Maryland employers provide eligible employees with two hours off, but the employer must also pay the employee for the two hours that he or she is absent from work. While not specifically addressed in section 10-315 of the Maryland Election Code, it would be wise for an employee to give their employer advance notice of the request for leave.  In addition, the employee should expect that the employer will seek to specify the time of day during which the employee takes leave to vote.  Also, be prepared to provide proof that you voted, as the Election Code states that the employee must provide the employer with proof that the employee actually voted during his or her time-off.  The proof can be in the form of a receipt issued by the State Board. Keep in mind that laws vary state-by-state.  Accordingly, employees outside of Maryland must check the state laws for their locale to ensure that they can take the necessary time off on Election Day, and to determine whether they are entitled to be paid for the hours they take off to vote.  In addition, employees may want to check with a Maryland employment law attorney to determine whether their Election Day leave would be considered hours worked for the purpose of calculating overtime pay. Employees or employers who have any additional questions about Election Day rules or any other issues which might arise in the workplace should feel free to contact employment law attorney Judd G. Millman.  Mr. Millman is licensed to practice law in both Maryland and Texas, and his practice focuses exclusively on employment law.  He regularly counsels both employees and employers on the myriad of legal issues which arise in the workplace, including issues related to working-hours and properly compensating employees for regular and overtime hours.  He can be reached directly at (410) 522-1020, or at judd@luchanskylaw.com. (Photo by: http://www.flickr.com/photos/explode/43951116)

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