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Employer's Toolbox

Navigating AI in the Workplace: Key Issues for Employers

As advancements in artificial intelligence (AI) revolutionize the workplace, it’s crucial for employers to understand the legal and ethical implications. Here’s a guide to some of the key AI-related issues you should be aware of to ensure compliance and fairness in your business operations. Bias and Discrimination:AI can inadvertently perpetuate biases, leading to unfair hiring and promotion practices. Ensure that AI tools are regularly audited for bias and comply with anti-discrimination laws such as the Civil Rights Act and the Americans with Disabilities Act (ADA). Privacy and Data Protection:AI systems often require access to sensitive employee data. It’s vital to balance employee monitoring with privacy rights and comply with data protection laws like the General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA). Transparent communication about data usage is essential. Fair Labor Practices:Automated decision-making in hiring, firing, and promotions must be transparent and fair, with mechanisms for employees to appeal decisions. Ensure that AI tools managing work shifts and hours adhere to labor laws regarding overtime and fair compensation. Workplace Safety:AI and robotics used in the workplace must comply with Occupational Safety and Health Administration (OSHA) standards. Regular updates and validations of AI systems are necessary to maintain accurate risk assessments. Employment Contracts and Agreements:Clarify the ownership of AI-created work and any AI tools developed by employees in contracts. Update non-compete and confidentiality agreements to address AI and data protection concerns. Unionization and Collective Bargaining:Be aware of how AI might impact job displacement. Transparent communication and negotiation with employee representatives are critical when introducing AI in the workplace. Training and Development:Invest in reskilling and upskilling programs to help employees adapt to new AI tools. Support continuous learning to keep your workforce competitive. Ethical Considerations:Develop and implement ethical guidelines for AI use, ensuring adequate human oversight to maintain accountability. Regulatory Compliance:Stay informed about evolving AI regulations and ensure compliance with current and upcoming laws. Artificial Intelligence is fast-moving and evolving, but by staying connected and addressing these issues proactively, you can harness the benefits of AI while maintaining a fair and compliant workplace. About Luchansky Law Luchansky Law specializes in resolving workplace disputes for employers and employees across Maryland. Our attorneys bring extensive experience and a practical approach to protecting your rights, navigating new regulations, and ensuring compliance. Our team combines legal expertise and practical experience to solve workplace challenges and effectively meet legal and business needs. Please contact us at (410) 522-1020, email us at info@luchanskylaw.com, or stop by our office at 606 Bosley Avenue, Suite 3B, Towson, Maryland, 21204. 

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Pivotal Digital Jun 28 No Comments
Employer's Toolbox

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

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

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Luchansky Law Team Jun 21 No Comments
Employer's Toolbox

Deciphering Trade Secrets: What Qualifies as Confidential Information in Your Business?

In the competitive business landscape, maintaining a competitive edge often hinges on safeguarding valuable assets. Among these assets are trade secrets – confidential information that provides a distinct advantage to companies. Understanding what constitutes a trade secret is paramount for businesses aiming to effectively protect and leverage these assets.  In this article, we’ll discuss trade secrets and how you can legally protect them. We’ll provide tips to help you recognize, guard, and make the most of these critical components of intellectual property. What are trade secrets? Trade secrets are confidential information that give a company an edge over its competitors and are protected as intellectual property. For something to be called a trade secret, it must be valuable because it’s kept secret, known only by a small group, and the company needs to take reasonable steps to keep it confidential. Trade secrets can be technical details like how things are made or software algorithms, or they can be commercial information such as distribution methods and advertising strategies. Why are trade secrets important? Trade secrets are indispensable for companies as they safeguard valuable information necessary for the company’s survival and profitability. They provide a competitive edge and are vital for innovation and fair market functioning. How are trade secrets different from patents? Trade secrets protect information that may not meet patentability criteria, such as commercial information or manufacturing processes, ensuring their confidentiality and competitive advantage. Unlike patents or copyrights, which require public disclosure, trade secrets thrive on discretion, letting companies retain exclusive control over valuable information. What types of information qualify as trade secrets? The types of trade secrets are vast, reflecting the diverse nature of information critical to businesses. Formulas for products, manufacturing processes, customer lists, and proprietary algorithms are just a few examples of what can qualify as trade secrets.  Famous examples of trade secrets range from the closely guarded Coca-Cola recipe and Google’s Search Algorithm to the WD-40 formula. Even the process behind compiling the New York Times Bestseller List is considered a trade secret, involving complex algorithms and data sources to determine book rankings. For a business, it’s essential to know about all the different kinds of secrets it might have to protect and use them well. What are the criteria for trade secret classification? To qualify as a trade secret, the information needs to meet specific requirements. Secrecy is paramount – the information must be something that’s not easy for others to find out. Also, it has to be valuable because it’s kept secret, giving a business an advantage over its competition. Businesses must also show they’re making reasonable efforts to keep the secret safe, whether through physical safeguards, contractual agreements, or other measures. Upholding these criteria ensures the information remains a trade secret protected under relevant laws. What does the new NLRB ruling mean for business owners? From a business owner’s perspective, this rule change necessitates a more comprehensive review of their relationships with other entities involved in employment arrangements. They may need to reassess contracts, policies, and practices to ensure compliance with the updated standard. Additionally, it could lead to increased scrutiny and potential legal exposure regarding employment practices, requiring proactive measures to mitigate risks and maintain compliance with labor laws.  For instance, the original Kentucky Fried Chicken recipe (KFC) is a prime example of a trade secret. The iconic blend of herbs and spices has remained closely guarded since its inception by Colonel Sanders. The recipe is kept under tight security, known only to a select few people within the company. KFC has taken extensive measures to maintain its secrecy, including storing the recipe in a secure vault and limiting access to it. Employees involved in preparing the seasoning are often required to sign strict confidentiality agreements, ensuring that the recipe remains confidential. By safeguarding the original recipe as a trade secret, KFC maintains a unique selling proposition in the competitive fast-food industry, distinguishing its product from competitors’ offerings. What legal safeguards and laws protect trade secrets? Trade secret laws and regulations exist at state and federal levels in the U.S. These laws impose penalties for trade secret misappropriation, defined as the improper acquisition, disclosure, or use of a trade secret. State laws generally allow trade secret owners to seek damages or injunctive relief in cases of misappropriation. Many states have adopted the Uniform Trade Secrets Act (UTSA) to standardize trade secret laws across different jurisdictions. The Economic Espionage Act of 1996 makes it a crime to steal trade secrets for foreign spying or commercial gain, with the Department of Justice imposing penalties for violations. Additionally, the Defend Trade Secrets Act of 2016 lets people sue in court to protect trade secrets uniformly across the country, and they can choose to do it in either state or federal court.  State laws generally allow trade secret owners to seek damages or injunctive relief in cases of misappropriation. Many states have adopted the Uniform Trade Secrets Act (UTSA) to standardize trade secret laws across different jurisdictions. The Economic Espionage Act of 1996 makes it a crime to steal trade secrets for foreign spying or commercial gain, with the Department of Justice imposing penalties for violations. Additionally, the Defend Trade Secrets Act of 2016 lets people sue in court to protect trade secrets uniformly across the country, and they can choose to do it in either state or federal court.  Understanding these laws is vital for businesses to keep their secrets safe and use the law to their advantage. How can I protect my trade secrets? Protecting and maintaining trade secrets demands a comprehensive approach. By adopting various strategies and practices, companies can maintain the confidentiality of valuable information and reduce the risk of unauthorized disclosure or use. By implementing these protective measures, companies can enhance the security of their trade secrets and reduce the risk of authorized disclosure or use, helping them stay ahead in the market. Protecting Trade Secrets: A Strategic Imperative for Business Growth To sum up, trade secrets are invaluable business

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Luchansky Law Team Apr 9 No Comments
National Labor Relations Act

How Does the New NLRB Rule Change on Joint Employers Impact Subcontractors

The New NLRB Ruling on Joint Employers for 2024 The National Labor Relations Board (NLRB) recently finalized a significant rule change regarding the Standard for Determining Joint-Employer Status. Effective December 26, 2023, the new NLRB rule represents a seismic departure from previous standards, promising far-reaching implications for labor relations and legal obligations.  But what does this rule actually entail, and why should it matter to you? Let’s unravel the intricacies of this transformative shift and explore its profound significance in shaping the landscape of employment dynamics. What is the new NLRB rule? The new NLRB rule clarifies when multiple entities can be considered joint employers of a group of employees under the National Labor Relations Act (NLRA). According to the new standard, if two or more entities have an employment relationship with the same group of employees and they share or have a say in determining one or more essential terms and conditions of employment for those employees, they can be considered joint employers. The new joint employer test   Under the new rule, two or more entities are joint employers when they “share or codetermine one or more of the employees’ essential terms and conditions of employment (see link below).” An ‘entity’ in this context refers to any organization, such as a corporation, partnership, or individual, involved in employment arrangements. The NLRB can say two entities are joint employers if one of them controls or has the power to control necessary job conditions of the other’s employees, even if it doesn’t actually use that power. **https://www.law.cornell.edu/cfr/text/29/103.40 The types of essential job conditions covered by the rule are broad: 1. Wages, benefits, and other compensation  2. Hours of work and scheduling  3. The assignment of the performance of duties  4. The supervision of the performance of duties  5. Work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline  6. The tenure of employment, including hiring and discharge  7. Working conditions related to the safety and health of employees An entity can be a joint employer if it has the power to control any of these seven things, even if it doesn’t actually do it. As long as a company has the authority to step in and control one of these important terms, it’s considered a joint employer. What was the NLRB rule before? Before the NLRB’s recent change, a 2020 standard had established a higher threshold for determining joint-employer status. Under this rule, businesses needed a significant level of direct and immediate control over employees’ work conditions to be classified as joint employers. This allowed businesses to distance themselves from certain liabilities, like labor disputes or wage violations, by demonstrating a lack of direct control.  Under the 2020 standard, businesses could avoid joint-employer classification if they lacked substantial, direct control over essential employment terms. However, the December 2023 rule expands this scope, including factors beyond direct control. Even if a business doesn’t directly oversee aspects like wages or work schedules, it could still be deemed a joint employer if it has the authority or ability to influence these factors. This adjustment may increase businesses’ accountability for employment-related issues, even when third-party entities like contractors or staffing agencies are involved.  Why did the rule change? The NLRB adopted the new rule to align more closely with established common-law agency principles, departing from the 2020 standard. The previous rule set a higher threshold for determining joint-employer status, which the NLRB found lacked a foundation in common law. By rescinding the 2020 standard and implementing the new one, the NLRB aims to provide more precise guidance to parties involved in joint-employer situations and ensure a more accurate reflection of traditional legal principles.  What does the new NLRB ruling mean for business owners? From a business owner’s perspective, this rule change necessitates a more comprehensive review of their relationships with other entities involved in employment arrangements. They may need to reassess contracts, policies, and practices to ensure compliance with the updated standard. Additionally, it could lead to increased scrutiny and potential legal exposure regarding employment practices, requiring proactive measures to mitigate risks and maintain compliance with labor laws.  Does the NLRB ruling apply to independent subcontractors? Yes, the new NLRB ruling extends to independent subcontractors, establishing that if entities share or influence essential employment terms, they can be deemed joint employers. This broadens the scope of joint employment under the NLRA, affecting employers, particularly those utilizing staffing agencies or subcontractors. Consequently, subcontractors may be deemed joint employers if they influence vital employment conditions for workers, even indirectly through intermediaries. What does this mean for subcontractors? This rule change holds significant implications for subcontractors. It makes it easier to protect workers’ rights and ensure they’re treated fairly by all the companies involved. Subcontractors, along with the other entities involved, now have a clearer understanding of their responsibilities towards jointly employed workers.  By requiring joint employers to negotiate and discuss important work-related matters together, the rule promotes transparency and accountability in labor relations. It fosters a fair and responsible environment for all parties involved, ultimately benefiting workers and businesses alike. How can employers and subcontractors ensure compliance with the new NLRB joint employer rule? To ensure compliance with the new NLRB joint employer rule, subcontractors and employers should consider the following measures based on the information available:  Review contracts and practices:  Subcontractors should review their contracts and practices to ensure they align with the new joint employer rule. This includes assessing the level of control over essential terms and conditions of employment, such as wages, benefits, and working conditions, to determine potential joint-employment status.   Consult legal counsel: It is advisable for subcontractors to seek legal counsel to analyze service contracts and other documents to identify any potential areas of concern regarding the new joint employer rule. Understand collective bargaining obligations: The new rule requires joint employers to participate in the collective bargaining process. Subcontractors should be aware of their potential obligations in this regard.  Stay informed:

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Luchansky Law Team Mar 21 No Comments
Employer's Toolbox

The Challenge of Writing up Employees—and How to Do a Better Job at It

Our clients recognize how important it is to write up employees when situations call for it.  Yet, most companies struggle terribly with getting supervisors actually to fill out a disciplinary form when a problem arises with an employee.  Why is that?  And what can employers do to fix it? The most common explanation we hear is that filling out a disciplinary form just takes too much time.  Supervisors, like everyone else, believe that they already have too little time to perform their main duties.  Just the thought of having to sit down to fill out HR paperwork often seems like an impossible additional task. That perception, however, does not have just one flawed assumption.  It has two. The first mistake is the view that filling out “HR paperwork” is not one of a supervisor’s “main duties.”  Employees manage tasks; supervisors manage people.  One of the most important tools in managing people is the responsibility to inform the stakeholders (both the employee and management) whether an employee’s actions are acceptable or problematic.  Therefore, writing up an employee is not tangential to a supervisor’s primary duties.  It is a primary duty. The second mistake is the (often) false notion that the main barrier to performing write-ups is the time it takes to do them.  The real reason in most cases is very different.   Supervisors often are anxious about doing write-ups because they don’t really know how to do them.  Sometimes, the reason for the difficulty is that the disciplinary form itself is a bad one.  It may be unclear.  It may be confusing.  The company’s form often makes it difficult for the supervisor to know exactly what information to provide or how much detail to include.  Uncertainty creates anxiety, and anxiety causes procrastination.  It’s not a supervisor’s fault.  Blame human nature (and the company’s disciplinary form). In addition to poorly drafted disciplinary forms, there is another common—and crucial—reason why supervisors often are unsure how to perform a write-up.  It is because they often don’t know the purpose of the write-up.  Sure, it potentially will be used for disciplining an employee.  But that does not answer the question.  Even worse, companies often don’t know the answer to the question.  What is this write-up supposed to accomplish? The Goals of an Employee Write-up The answer begins with a crucial insight.  All employee issues do not fall into a single category of impropriety.  They fall into one of two different categories.  Employee issues consist of either poor performance or misconduct.  An employee who is not performing up to a company’s expectations is “guilty” of poor performance, not misconduct.  An employee who has violated a company’s policies (such as insubordination) is “guilty” of misconduct, not poor performance.  The primary reason to write up a poorly performing employee is to attempt to rehabilitate the employee—to see if the employee can perform up to expectations.  The primary purpose for disciplining an employee who engaged in misconduct is to prevent future misconduct (of course, there are other purposes for write-ups, including the legal protection of the company). With the clarity of this distinction, performing a write-up almost becomes common sense.  Incidents of poor performance require information about the company’s expectations, how the employee has failed to meet those expectations, what the plan is for the employee to meet those expectations in the future, and what will happen if the employee does not meet them.  Incidents of misconduct require documentation of the company rule that was violated, extensive details about the alleged incident of misconduct (including, when necessary, an investigation of the incident), and the consequences of further misconduct.  At Luchansky Law, we make sure that our clients have the HR tools they need, including well-drafted forms to utilize for hiring, discipline, termination of employment, and non-compete agreements.  We also train our clients’ supervisors to understand their duties clearly and how to maximize their performance.  The result is better operations and less anxiety—for the supervisors and the company’s owners.  If you would like to discuss whether your HR tools may need a tune-up, or whether your supervisors would benefit from some training, give us a call at (410) 522-1020 to schedule a consultation.

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Bruce Luchansky Nov 8 No Comments
Litigation Avoidance

A Renaissance for Private-Employer Unions – Real or Fake News?

Depending on where you get your news, you might think that unionization at private employers is experiencing a drastic rise.  Nearly every week, news articles highlight unionization efforts at high-profile companies like Starbucks, Amazon, and Mcdonald’s.  Despite being only three-quarters of the way into FY22, union election petitions for FY22 have already exceeded the total number of election petitions filed in all of FY21.  This represents a 58% increase in election petitions from FY21 if the trend holds for the remainder of FY22. The factors cited for the rise of union elections will not surprise any employer that has been following recent employment trends – post-COVID workplace dissatisfaction, greater availability of employment opportunities, and inflation are cited as central reasons why some employees feel emboldened to seek improved terms and conditions of employment through collective bargaining.  For some employers, employees seeking improved conditions at work through collective bargaining may actually be a blessing in disguise.   Studies show that many workers are more likely to increase their compensation by transitioning to a new job rather than negotiating a raise with their current employer.  As a result, unionization may help employers struggling with employee retention.  However, despite the possible benefits, few employers welcome unionization efforts.  At-will employment, the ability to change policies, benefits, and pay without negotiations leads most employers to oppose union election petitions. With all that said, other studies suggest that the increase in union election petitions and news stories do not paint a complete picture.  Only about 6% of private employees are union members, with government employees making up the vast majority of union members.  Among government workers, as right to work laws for public employees have been passed in every state, union membership has declined to historically low levels.  This suggests that, despite some high-profile unionization efforts, employee interest in union membership is low and that these high-profile cases are outliers being given undue attention by the media. At Luchansky Law, we recognize the challenges that employers with unionized workforces face. If your business would like assistance in responding to an election petition, negotiating a collective bargaining agreement, or implementing policies to keep your employees happy (and thereby avoiding a unionization push), give us a call at (410) 522-1020 to schedule a consultation.

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Luchansky Law Team Aug 11 No Comments
Employee Lawsuits

Maryland Law Makes It Easier for Employees to Win Sexual Harassment Lawsuits

All employers know that maintaining a workplace that is free from sexual harassment is the right thing to do.  A harassment-free workplace shows respect for all employees at work and creates a safe work environment.  It also happens to be good for business.  Complaints of sexual harassment are unsettling, distracting, time-consuming, and expensive. But from an employer’s perspective, the law traditionally has established a reasonably high threshold for a complaining employee to win a lawsuit based on sexual harassment.  According to the broadly adopted standard for claiming sexual harassment, an employee complaining of harassment must be able to prove that the wrongdoer’s conduct was “severe and pervasive.”  In other words, the bad conduct had to be pretty serious in nature (“severe”) and it had to occur more than once (“pervasive”).  Historically, that has been a high standard to meet. In Maryland, however, that is about to change. During the 2022 Legislative Session that concluded on April 11, 2022, the Maryland General Assembly passed a new law that removed the requirement that sexual harassment be “severe and pervasive” before the conduct violates the law.  The law no longer requires that the bad conduct be “really” bad, or that it happen repeatedly.  Instead, based on the totality of the circumstances, a judge or jury simply must determine that the conduct unreasonably created a working environment that a reasonable person would perceive to be abusive or hostile.  Based on this new standard, could a single suggestive remark be considered sexual harassment?  Maybe. This new law has not yet gone into effect – but it will soon, on October 1, 2022. What Should Employers Do? There is not much time left before this new law goes into effect.  During this time, there are two things that all prudent employers must do. First, it is time to review the company’s Employee Handbook.  For those employers who have been meaning to have their employee manual reviewed for a couple of years but have not quite gotten around to it, now is the time to get it done.  This new law is one of several employment-related changes that must be incorporated into the company’s handbook.  But even for those companies who have their handbooks reviewed annually, it is time to review the company’s sexual harassment policy. Second, we believe that it is more crucial than ever to schedule supervisor training on sexual harassment.  At the very least, the change in the legal standard must be conveyed to each company’s front-line supervisors so they know what standard they will be held to.  Moreover, in the event of a charge of harassment, it is important for the company to be able to show that it took all the reasonable steps it could to prevent such an occurrence. At Luchansky Law, we recognize that the employment laws that affect our clients’ businesses change all the time.  We consider it our mission to keep employers well-informed of the employment laws that affect their business, and to perform the tasks that are necessary to protect them.  Whether an employer requires a review of its handbook, needs to provide additional training to its supervisors, or requires a defense of a complaint before the EEOC, or federal or state court, we are as committed to your protection and growth as you are.  For answers to all your employment law questions and assistance with issues in the workplace, call us at Luchansky Law at (410) 522-1020.

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Bruce Luchansky Jul 26 No Comments
Employee Lawsuits

Litigation FAQ: Are My Attorneys’ Fees Recoverable?

One of the first questions many attorneys are asked when a client is considering filing a lawsuit is whether the fees and costs they will incur in the litigation are recoverable. In virtually all personal injury and property damage cases and in many business disputes, under what courts have dubbed the “American Rule,” the answer is no. Because the cost to a client of pursuing a claim is an important factor to be considered when evaluating a case (a $100,000 claim that will cost $50,000 in unrecoverable fees and costs to litigate is only worth $50,000 even if successful), knowing when and how fees can be recovered is key. In this series of posts, we will explore “fee-shifting” including when it is available, which party has the burden of proof and how that burden can be met, what courts will look at when deciding if and how much to award, how a party that intends to seek its fees can lay the groundwork for a successful recovery as the litigation progresses, and the recovery of costs.      There are four major categories of cases in which the prevailing party can claim attorney’s fees: Cases in which it is mandatory or discretionary under the federal or state statute at issue for the court to award the prevailing party its reasonable attorneys’ fees (e.g., Fair Labor Standards Act, Civil Rights Act, State and Federal trade secret claims, State and Federal Class Actions, State Consumer Protection Act claims, State Unfair Claim Settlement Practice Act claims); Breach of contract claims in which the contract at issue entitles a party to recover the fees it incurred in an action to enforce the contract; Fees authorized by common law (e.g., in certain jurisdictions, an insured that is compelled to litigate with its insurer to obtain a defense under a liability policy can recover the fees associated with the coverage action); and Breach of contract claims in which an element of the damages caused by the breach are attorneys’ fees (e.g., in Maryland, where an insurer breaches a policy’s duty to defend, the insured can recover the costs of its defense). In all of the above scenarios, the party that intends to seek recovery of attorney’s fees must include a claim for attorney’s fees in their complaint.  Under Maryland state law, different fee-shifting scenarios are governed by subsections of Maryland Rule 2-703, and reference to the appropriate rule section should be included in the complaint. In the first three categories above, the reasonableness of the attorney’s fees is generally litigated in a post-judgment fee petition, while in cases where fees are an element of a party’s substantive damages claim, they will likely be litigated as part of the case itself like any other category of damages. In our next post, we will address the burden of proof applicable to a fees claim and whether an expert should be retained to support a fees claim. In the meantime, if you would like the experienced attorneys at Luchansky Law to review your contracts to ensure that they include an enforceable attorney’s fees provision, give us a call at (410) 522-1020 to set up an appointment.

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Joseph Wolf Jul 14 No Comments
Employee Lawsuits

How to Handle Freedom of Speech at Work

The end of the current session of the United States Supreme Court has seen the Court issue rulings on many hot-button political topics including gun control, abortion, immigration, and environmental protection laws.  These rulings, along with the January 6th Commission’s ongoing public hearings, have created an environment of heightened political tension and stress.  While the decisions themselves may be unrelated to an employer’s business, employers can still be impacted by these decisions through their employees’ reactions and interactions with one another.   One major way that employers can be impacted is when employees’ political discussions move from civil debate and discussion to accusations of bullying and harassment.  What then, if anything, can employers do to ensure that political discussions in the workplace do not result in lost productivity, damaged working relationships, and an overall loss of employee morale? Private Employers vs. Governmental Restrictions on Speech For many Maryland employers, the answer may seem counterintuitive.  While the First Amendment and the Maryland Declaration of Rights create, with certain limitations, freedom of speech, that freedom only applies to governmental restrictions on speech.  Neither the First Amendment nor the Maryland Declaration of Rights applies to private employers, whose ability to restrict certain workplace speech is broad, so long as such restrictions do not violate laws prohibiting discrimination or the rights of employees to collectively bargain. As a result, employers are permitted to implement and enforce policies designed to promote workplace harmony by preventing political arguments, bullying and harassment.  For example, the First Circuit recently upheld Whole Foods’ right to discipline employees wearing “Black Lives Matter” masks in violation of their internal policies against employees wearing political paraphernalia at work.  In doing so, the Court rejected the employees’ arguments that these policies violated their First Amendment rights and/or constituted racial discrimination.  Instead, the Court upheld the long-standing notion that, so long as policies are not enforced in a discriminatory manner, employers may prohibit political speech at work. If you have questions about how to implement workplace policies promoting a harmonious workplace or preventing political arguments from occurring on company time, please contact one of our attorneys at (410) 522-1020 to set up an appointment.

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Luchansky Law Team Jul 7 No Comments
COVID-19

When is Paid Sick Leave Coming to Maryland?

During the most recent legislative session, the Maryland General Assembly passed the Time to Care Act.  The big takeaway from the passage of this law: Maryland will, eventually, have a paid leave program for employees who need time off due to childbirth or serious health conditions.  Unfortunately, the coverage of the law’s passage has created confusion among employees and employers as to its effective date, who is responsible for funding the program, and its effective date.  Contrary to some misconceptions, the law only establishes a framework for what the program will eventually look like—employees are not entitled to paid leave under the law until January 1, 2025, at the earliest. The program itself is akin to the unemployment insurance program—employees will apply for benefits through the state, not their employer.  The funding for the program will come from contributions from employers (and employees) who employ more than 15 employees in the state.  Employers with fewer than 15 employees will still be covered but will not be required to make contributions.  Because the state agency still has not set up the program or determined the funds needed to run the program, the law provides that the contribution rates for employers will be set in June of 2023 with contributions beginning in October of 2023.  These dates are tentative and dependent upon the passage of implementing regulations. Once employers start making contributions to the fund, October 2023 to December 31, 2024, will essentially be a funding period, where the program will build the reserves needed to provide benefits to qualifying employees.  Again, employees will not be able to begin taking leave under the law until January 1, 2025, at the earliest.  When employees take covered leave, they will file for benefits with the state.  Once they do so, the employer’s obligation will be to maintain group health benefits in the same manner as they would under any other period of leave, with the employee continuing to pay their individual share.  More importantly, unless doing so would create a “substantial and grievous harm” to the company, employers are required to reinstate employees once the period of leave is over.  Employees may take up to 12 weeks of leave under the program. So, What Should Employers Do Now? For the time being, employers are not required to do anything new.  Employers with 50 or more employees should continue to follow the requirements of the Family and Medical Leave Act and Americans with Disabilities Act when dealing with leave requests from employees.  Employers with 15-49 employees should continue to follow the Maryland Parental Leave Act and Americans with Disabilities Act. As we learn more about how the law will be implemented, we will keep you updated.  In the meantime, if you have questions about paid or unpaid leave requirements for your business, please contact one of our attorneys at (410) 522-1020 to set up an appointment.

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Luchansky Law Team May 11 No Comments

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