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COVID-19

Increased Hiring Means Employers Should Perform a Criminal Background Check Check-Up

Governor Hogan’s recent decision to end Maryland’s participation in the federal enhanced employment benefits program and to reinstate the requirement that those collecting unemployment benefits resume their efforts to find work is likely to spur a hiring increase around the state. Employers looking to hire would be wise to verify that their hiring practices and procedures comply with Maryland’s relatively new criminal record/background check laws.  The law, known informally as “Ban the Box,” was passed by the Maryland legislature over Governor Hogan’s veto in February 2020, just before the employment challenges created by Covid-19. It prohibits a Maryland employer with 15 or more full-time Maryland employees from inquiring, at any time prior to the first in-person interview, as to whether a potential employee has a criminal record or has been accused of criminal conduct. Full-time employees can include those employed on a seasonal or temporary basis. In-person interviews include telephone and videoconference interviews. Employers that violate the law more than once are subject to a $300 fine for each employee from whom a prohibited inquiry was made.   Significantly, a Baltimore City ordinance that has been in effect since 2014 and which applies to employers with 10 or more full-time employees in Baltimore City is even more restrictive. It prohibits covered employers from inquiring as to whether an applicant applying for a job in Baltimore City has a criminal record or has been accused of a crime or conducting a criminal background check prior to the employer making a “conditional offer” to the prospective employee.  The “conditional offer” may be explicitly conditioned on the results of a criminal background check. Significantly, the Baltimore City ordinance includes a provision allowing the Baltimore Community Relations Commission to recover lost wages, compensatory damages, and attorney’s fees on behalf of an applicant who was subjected to an unlawful inquiry.   Both the Maryland law and the Baltimore City ordinance exempt employers that are required to inquire as to a prospective employee’s criminal history by federal law or another state law, as well as employers that provide services to minors and vulnerable adults.    Employers that are subject to either of these laws should take a fresh look at all written and online applications to ensure that they contain no questions, or boxes that need to be checked, that relate to an applicant’s criminal history. Employers that use a single application in multiple states that includes criminal background questions should consider modifying the application to clearly indicate that Maryland residents should not respond to those questions. Employers should also remove references to criminal history from job postings and advertisements. Finally, employers that use recruiters or other third parties to screen potential employees should provide clear instructions that no inquiry be made into an applicant’s criminal history until the point in the process when it becomes permitted.  If you have any questions about the legality of your application process, or if you are facing a claim or government inquiry into your hiring practices, the attorneys at Luchansky Law are here to help. Give us a call at(410) 522-1020. 

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Joseph Wolf Aug 18 No Comments
COVID-19

Employer Vaccination Mandates have Title VII and ADA Implications

As they resume pre-pandemic operations, employers are understandably concerned about the safety of their employees and clients. As a result, many are implementing mandatory COVID-19 vaccination policies for their employees. According to the most recent guidance from the EEOC, employers are allowed to make such mandates; however, there are exceptions. The first exception is for those who cannot take the vaccine because of a sincerely held religious belief. The second is for those with a medical condition that prevents them from taking the vaccine. In its guidance, the EEOC has cautioned employers to be aware of these exceptions or face the risk of legal liability.  With respect to the first exception, the EEOC guidance iterates that Title VII prohibits discrimination against those who refuse to be vaccinated because of their sincerely held religious beliefs. For the second exception, the ADA prohibits discrimination against employees who are unable to be vaccinated because of a disability. The new EEOC guidance reminds employers that pregnancy qualifies under the definition of disability under the ADA. Employers who have employees who object to a vaccine mandate for one of these reasons should engage in a two-step analysis. First, the employer should consider whether the unvaccinated employee poses a direct threat to the workplace. Second, the employer should discuss with the employee whether there are reasonable accommodations available to mitigate or eliminate that threat.   Some factors to consider when assessing whether the employee is a direct threat are the duration of the pandemic, the nature and severity of potential harm, the potential harm’s likelihood of occurring, and the imminence of the potential harm. The latest guidance from state and local health organizations and the employee’s health care providers can be helpful in this analysis. If the unvaccinated employee is determined to be a direct threat, the employer should discuss with the employee possible accommodations. Examples include remote work, a change in the employee’s workstation to one that is further from other employees, modified scheduling, or continued mask-wearing and social distancing for this employee. As with any reasonable accommodation, the employer is not required to implement a modification of the employee’s work that would pose an undue hardship on the employer. The EEOC guidance recommends that employers who are considering implementing a mandatory vaccination policy notify their employees that they will consider reasonable accommodation requests for either religious or disability reasons on an individualized basis.  Vaccination mandates require an artful balance between an employer’s right to ensure the safety of its employees and patrons and the employees’ rights under federal and state anti-discrimination laws. At Luchansky Law, we routinely assist employers with striking this balance. If your business would like assistance in reviewing or implementing its vaccination mandate for compliance with applicable anti-discrimination laws, give us a call at (410) 522-1020. 

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Bruce Luchansky Aug 11 No Comments
Reasonable Accommodations under the ADA

Hazy Laws Around Marijuana Use Creates Headaches for Maryland Employers

Over the past ten years, states and local governments have increasingly legalized the use of marijuana, depending on the reason.  A majority of states and DC have legalized the use of marijuana for medicinal purposes while a growing minority of states and DC have legalized the recreational use of marijuana.  Within those states, differences persist regarding whether employees are entitled to accommodations for medicinal marijuana use, typically in the form of an exemption from the employer’s drug-free workplace policies. While Maryland has not fully legalized recreational marijuana use, with a legalization effort failing in the General Assembly this year, it has decriminalized it for small amounts for personal consumption and has legalized medical marijuana, following similar trends across the country.  For many employers, this has created confusion as to whether they are required to accommodate medical marijuana use under Maryland law, particularly as public acceptance of marijuana use increases.  As of the date of this article, there is no legal authority requiring that Maryland employers accommodate medicinal marijuana use.  Under federal law, marijuana is a “Schedule 1” controlled dangerous substance, meaning that is has a high potential for abuse and is not currently accepted for medical use.  As a result, there is no duty to accommodate medical marijuana use under the Americans with Disabilities Act (the “ADA”) which is a federal law.  Therefore, any duty to accommodate would arise under Maryland state law.  Neither Maryland’s law permitting medicinal marijuana, nor its Fair Employment laws explicitly protect employees from employment-related consequences of medical marijuana use – instead, they eliminate criminal penalties.  In fact, the Maryland Medical Cannabis Commission’s FAQs explicitly warn patients that, “Maryland law does not prevent an employer from testing for use of cannabis (for any reason) or taking action against an employee who tests positive for use of cannabis (for any reason).”  With all of that said, except for certain government contractors or employees in certain federally regulated positions, employers are not required to terminate or discipline employees engaged in medicinal or even recreational marijuana use.  Given the legal uncertainty around the duty to accommodate, many employers have voluntarily granted accommodations to employees who use medicinal marijuana outside of work, so long as their use does not result in them arriving to work while impaired.  Other employers, given the growing legalization movement, increased marijuana use among young people, and the tight job market, have announced that they will not test employees for marijuana use or refuse to hire employees who test positive for marijuana use absent at-work impairment.  If you have questions about whether you need to accommodate medicinal marijuana use by your employees or your drug testing policies, please contact one of the Luchansky Law attorneys at (410) 522-1020 to set up an appointment to discuss how your policies can be structured to meet your company’s goals. 

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Luchansky Law Team Aug 6 No Comments
Employer's Toolbox

Hiring? Now is the Time to Audit Your I-9 Compliance

Employers are obligated to take certain steps to determine whether their employees are legally authorized to work in the United States.  Since the early 50s, federal law has prohibited employers from employing foreign workers unless they hold a status that authorizes them to work in the United States. However, it was not until the Immigration Reform and Control Act of 1986 that employers were provided a mechanism to meet this mandate by requiring all employers to complete a Form I-9 to verify the identity and work authorization of every employee hired, regardless of citizenship.  Since even minor errors and mistakes on an employer’s Form I-9s can result in fines, which can add up quickly, now is the time to conduct an internal audit to ensure that all forms have been completed and retained properly.  The I-9 Form must be completed within three days of the first day of employment. The employee completes Section 1 on the first day of employment; the employer must complete Section 2 by the end of the third day, including a physical inspection of the documents provided by the employee to verify employment eligibility.  In March 2020, DHS announced flexibility in requiring physical examination of documents for employers operating remotely, with physical examination of the documents to be conducted once in-person operations resume.  This has since been extended until August 31, 2021.  However, while this flexibility remains, employers who took advantage of the remote inspection provisions who are now resuming in-person operations should immediately begin inspecting documents in person for those employees who were hired while the employer was operating remotely and for all new hires.  Form I-9s should be kept apart from other personnel files, not only for convenience in the event of an audit (ICE is only required to give three days’ notice) but also to avoid the appearance that employment decisions were made using such information and a claim of discrimination.  This also allows you to easily conduct a self-audit since all the forms will be in one place.  Form I-9s should not be retained longer than required – we recommend keeping all forms together in a binder, with a separate section for employees who are no longer with the company.  That way, every six months or so you can review the binder and remove any I-9 forms that are no longer required to be maintained.   Penalties can be enforced for Form I-9 violations, employment violations, document fraud, or discrimination in the form of fines and penalties.  Unless the employer self-audits, since the Form I-9 is not filed with any agency, mistakes typically go undetected until an employer receives notice of an audit from ICE or DHS.  ICE and DHS do not look favorably upon corrections made after they sent notice of an audit, so the time to correct any errors, omissions, or issues arising from use of an outdated form is during a self-audit.  That way, if you are audited, DHS and ICE will see that any issues have been proactively corrected and are likely to levy lesser fines, if any.  If you have questions about your company’s compliance with the Form I-9 requirements or would like assistance with an internal audit and ensuring that your corrections are compliant with DHS guidance, please give us a call at (410) 522-1020. 

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Luchansky Law Team Aug 6 No Comments
Non-Compete Agreements

President Biden’s Recent Executive Order on Promoting Competition in the American Economy Differs Significantly From President Obama’s Approach to A Similar “Problem”

President Biden’s July 9, 2021, executive order, in which he urged the Federal Trade Commission to explore enacting rules to curtail the use of non-competes and other agreements that impede worker mobility, marks a change in approach and scope from President Obama’s efforts to address the same issue. First, in his October 2015 “State Call to Action on Non-Compete Agreements,” President Obama urged state governments to eliminate the use of non-competes for certain classes of workers based on earnings, particular occupations (public health/safety), and the circumstances of the employee’s separation from employment (lay-offs, termination without cause).   Perhaps in response to President Obama’s efforts, or because of the prevailing trend against non-competes, since 2016 at least 16 states have taken action to limit the use of such agreements.  Maryland is one of those states.  In 2019, Maryland enacted legislation prohibiting the use of non-competes for low-wage employees. More recently, the District of Columbia banned the use of non-competes in virtually all circumstances.  The goals of President Biden’s recent order, by contrast, include having a federal agency severely curtail, if not banned altogether, the use of non-competes and pursuing federal enforcement actions against employers who violate the regulations.    In light of the general movement by state governments to protect employees from unnecessary or onerous non-competes, it is unclear whether there was any practical need for President Biden to make non-competes a federal issue (other than his campaign promise to do so).  Whatever President Biden’s motivation, any rules proposed by the FTC almost certainly will be met with blistering pushback from the business/corporate community during the required public notice and comment period. Any ultimate enactment also is likely to result in a flurry of litigation over the constitutionality of the federal government attempting to regulate private employment contracts.    It remains to be seen whether the FTC’s implementation of President Biden’s order will resemble Maryland’s more limited approach, which focused on protecting more vulnerable workers with limited bargaining power, or D.C.’s blanket ban on non-competes. Either way, Luchansky Law‘s attorneys will be monitoring developments closely and will be available to explain how any new regulations affect your company’s non-compete agreements. We can be reached at (410) 522-1020 or at www.luchanskylaw.com. 

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Joseph Wolf Aug 5 No Comments
Unemployment Benefits

Federally Enhanced Unemployment Benefits to Remain in Effect in Maryland

On July 13, 2021, Baltimore City Circuit Court Judge Fletcher-Hill enjoined the State from opting out of the federally enhanced unemployment program under ARPA. In June, Governor Hogan provided Congress with the State’s written intent to withdraw from the program, effective July 3, 2021.  The Governor primarily cited increased vaccine availability and a marked number of job vacancies in support of this move. Additionally, businesses across the State believed that this benefits program caused a labor shortage since these payments disincentivized people from looking for work.  In response to the proposed termination of the benefits program, the Unemployed Workers’ Union and the Public Justice Center filed parallel lawsuits against the State seeking an injunction to prevent the State from withdrawing from the program early.    Judge Fletcher-Hill granted the injunction and prohibited Maryland from terminating these benefits early.  In doing so, Judge Fletcher-Hill found that to abruptly end these programs would cause “irreparable harm” to the beneficiaries.  The State has declined to appeal the matter. This means the enhanced benefits will continue until September, unless they are further extended by Congress.   At the heart of the issue are a pair of unemployment benefits: a $300 per week enhancement to traditional unemployment insurance, and a standalone benefit entitled Pandemic Unemployment Assistance (“PUA”).  The enhanced unemployment insurance benefits are available to those who are out of work due to traditional no-fault reasons, such as a layoff. Meanwhile, PUA is available to those in the margins who are unemployed voluntarily — and thus ineligible for traditional unemployment — but for reasons directly related to the pandemic. The most common PUA eligibility scenario is a parent who cannot work because of childcare issues because of school or daycare closures. The DLLR has advised that beneficiaries of either program should continue to file their weekly certifications to continue to receive their benefits. The State also must now resume accepting new PUA applications for benefits.    Despite this most recent win, unemployment claimants still are facing an uphill battle. The DLLR has been inundated with applications for benefits since the beginning of the pandemic, and many who are entitled to benefits are improperly denied because of clerical errors, misclassification, and BEACON system errors. To make things worse, the DLLR has a very short time window for a claimant to file a timely appeal of the benefit denial.  The sheer volume of appeals often causes the DLLR to uphold benefit denial determinations solely based upon the claimant’s appeal being untimely.  The DLLR has been using this as a method of expediting appeal processing to address its backlog. It is critical that an appeal be noted timely to ensure the merits of the claimant’s denial are addressed and any improper denial is reversed.   If you have received a notice of benefit determination denying benefits that you believe is incorrect, it is imperative that you not delay. At Luchansky Law, we have successfully represented claimants in their appeals before the DLLR and obtained benefits for those who were improperly denied.  If you believe you have been wrongfully denied PUA or any other unemployment benefit, give us a call at (410) 522-1020 to schedule a consultation. 

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Luchansky Law Team Aug 4 No Comments
Employment Discrimination

DIY Background Checks Can Create a Legal Risk that Companies Often Don’t Consider

As the state of emergency in Maryland ends this summer, many employers are looking to hire new employees to deal with an increase in customer and client demand.  For many of those employers, the hiring process includes some form of a background investigation of a prospective employee.  Many employers that perform background checks on applicants hire a third party to do that investigation, often to check an individual’s criminal conviction history, involvement in civil lawsuits, and driving record, where relevant.  Some employers, however, choose to perform their own “background checks” by using Google searches, reviewing social media websites, reading personal blogs, and investigating other online resources.  Few of these companies consider the legal risks associated with performing these do-it-yourself background checks.    The “benefit” of performing these searches would seem obvious.  An employer often can find a wealth of information online that a background check company typically might not provide.  Information about an individual’s judgment, character, and maturity are reasons frequently cited by employers justifying a DIY background check of an applicant’s social media. However, other information also comes up in those searches.   For example, information about the candidate’s age, race, nationality, disability, marital status, religion, sexual orientation, and familial status usually are also discoverable online quite easily.   The first question, however, is – once you have this information, what are you allowed to do with it?  In most cases, the answer is: Nothing.  The law prohibits employers from discriminating against individuals on the basis of these classifications (among others).  For example, a company that decides not to hire an applicant because of his or her religious beliefs likely would be committing a violation of federal law.  Therefore, the information obtained should not be considered in connection with making an employment decision, and this information typically should be ignored or discarded – making the search a waste of time.  And that’s the best-case scenario.  Worse still, if an individual in a protected classification is not hired and learns that this information had been obtained before the decision was made, it may create a basis for a discrimination claim.  Even if a company did not use this information as a basis not to hire the applicant, the fact that it obtained this information certainly makes it seem that way.  The risk of simply possessing this information may be made even worse if the company has not been performing its internal background searches consistently.  Imagine if a more onerous background check is found to have been performed on an unsuccessful candidate who is in a protected classification than for non-protected individuals.  That situation would provide even more ammunition for a claim of unlawful discrimination.  Suffice it to say that it is important for companies to know how to perform background checks properly.  At Luchansky Law, our attorneys routinely assist employers in reviewing their hiring practices, such as background checks, to ensure compliance with all anti-discrimination laws, including Title VII. If your business would like guidance on its background check practices, give us a call at (410) 522-1020. 

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Luchansky Law Team Aug 3 No Comments
COVID-19

Courts’ Decisions in FFCRA Cases Offer Guidance to Employers Facing FFCRA Claims

With 14 months having passed since the Families First Coronavirus Response Act (FFCRA) took effect, the number of decisions by U.S. District Courts relating to claims arising from violations of that law is increasing. The arguments made by employers and employees in these cases, and how courts have addressed those arguments, can provide valuable insight to employers facing similar claims. In a decision issued on May 28, 2021, a federal court in Missouri considered an employer’s argument that an employee could not recover back pay, front pay or punitive damages arising from an FFCRA retaliation claim. The employer argued that FFCRA regulations incorporated regulations arising from the Fair Labor Standards Act which allowed recovery of “lost wages,” and thus the employee could only recover minimum wage and liquidated damages.   The court disagreed with the employer and found that, while “lost wages” is not defined under the FLSA, it is an open-ended term which could include back pay and front pay. The court did conclude, however, that punitive damages were not recoverable in an FFCRA retaliation claim. An employer’s qualification for the “small employer” exemption to the FFCRA, applicable to employers with fewer than 50 employees, may not be enough to support dismissal of a complaint. One Florida employer argued that the claim against it should be dismissed because “it would qualify for an exemption” from the FFCRA’s leave requirements because it employed fewer than 50 people and that enforcement of the law against it would jeopardize its viability as an ongoing business. The court denied the motion to dismiss because the complaint did not include allegations that would demonstrate that the employer had taken the statutorily required steps to qualify for the exemption or that it qualified for the exemption. Significantly, this decision does not foreclose an employer from demonstrating, in an early motion for summary judgment, that there is no dispute of material fact that it had made the necessary determination that it was eligible for the exemption. In a Kentucky case, a federal court granted an employer’s motion to dismiss because the complaint did not allege that the quarantine instruction or the employee’s other communication with the employer at the time of the leave request included a proposed end to the leave.  Furthermore, the quarantine instruction relied on by the plaintiff was signed by a registered nurse who did not come within the statute’s definition of “health care provider,” and the notice did not include the employee’s name because it was issued to the employee’s spouse, though it was to apply to the entire family. The lesson here is that employers faced with FFCRA claims should carefully go back and re-examine all documentation submitted by an employee in support of their request for leave. In another Florida case, an employer argued that its termination of its employee, who generally worked as many hours as needed, while he was awaiting the results of a Covid test could not serve as a basis for recovery because it would not have had work for him even if he was available due to a reduction in its workforce caused by Covid. The court denied the employer’s motion for summary judgment, concluding that even though it was undisputed that the employer had reduced its workforce, there were still issues of fact as to whether the employee would have been given some work had he not been terminated.  The take-away from this case is that an employer that plans to argue that an employee would have been terminated for reasons other than FFCRA-protected conduct must be prepared to support that argument with specific, detailed evidence. At Luchansky Law, our lawyers can provide valuable advice and representation to employers facing FFCRA claims. Please give us a call at 410-522-1020 if we can be of service

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Joseph Wolf Jun 10 No Comments
COVID-19

Governor Hogan Announces the End of Federally Enhanced Unemployment Assistance

Governor Hogan recently announced that Maryland will be ending federally enhanced unemployment assistance paid by the Department of Labor, Licensing, and Regulation, or DLLR, this summer. As part of the federally enhanced unemployment benefits, those who are eligible for traditional unemployment in Maryland have been receiving an additional $300 per week. On June 2, 2021, the State submitted the required 30-day written notice to the Federal Government to opt out of the program. Although the federally enhanced unemployment programs are scheduled to expire in September, these benefits will end for Maryland residents on July 3, 2021. Maryland is joining half the states in the country who are opting out of the enhanced unemployment benefits under ARPA. Employers in Maryland, particularly in the service sector, have been reporting a significant worker shortage and point to the enhanced unemployment benefits as its major cause. Governor Hogan cites increased vaccine availability, Maryland’s close to 70% vaccination rate, and decreasing first-time unemployment claims in further support of the move. In addition to ending the enhanced benefits, Governor Hogan has reinstated the work-search requirements for unemployment beneficiaries that were suspended during the pandemic. Beneficiaries are again required to make at least three re-employment attempts each week to be eligible to receive benefits for that week. By eliminating the enhanced unemployment insurance benefits and reinstating job search requirements to continue receipt of unemployment benefits, Governor Hogan expects more unemployment beneficiaries will return to work, thereby alleviating the worker shortage. The end of the enhanced Federal unemployment assistance does not only affect those who were eligible for traditional unemployment. Those who were placed out of work for reasons that would render them ineligible for traditional unemployment but are still receiving benefits from DLLR likely are beneficiaries of the federal Pandemic Unemployment Assistance program, or PUA. PUA was designed to create a safety net for those who were working in jobs that could not be done remotely or were out of work due to pandemic-related issues. For example, a parent of school-aged children who was required to be home to provide care for their children due to school closures would have received unemployment benefits through PUA even though they would not have otherwise been eligible for unemployment benefits. These benefits will also end on July 3, 2021. While the enhanced benefits will be eliminated after July 3, 2021, the DLLR has promised that any benefits properly owed under either enhanced unemployment or PUA for weeks through July 3, 2021 will be paid to the beneficiaries. This is important because PUA determinations have been particularly susceptible to data entry errors, such as incorrect time periods and other inaccurate information, which have resulted in eligible beneficiaries’ claims being denied. These determinations must be appealed for benefits to be received. At Luchansky Law, we have successfully represented claimants in their appeals before the DLLR and obtained benefits for those who were improperly denied. If you believe you have been wrongfully denied PUA or any other unemployment benefit, give us a call at (410) 522-1020 to schedule a consultatio

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Luchansky Law Team Jun 10 No Comments
COVID-19

EEOC Issues Updated Guidance for Employers Regarding COVID-19 Vaccinations

On May 28, 2021, the EEOC issued updated guidance for employers related to COVID-19 vaccinations in the form of updated questions and answers on its site. The full update is available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. In the introduction to the updated guidance, the EEOC explicitly notes that the updated guidance was prepared prior to the CDC’s updated guidance for fully vaccinated individuals such that we can expect additional updates in the near future. The biggest takeaway from the updated guidance is confirmation from the EEOC that, subject to accommodations for individuals with disabilities or sincerely held religious beliefs, it is not a violation of federal EEO laws for employers to mandate vaccines for employees entering the workplace. This is the clearest position that the EEOC has taken on the issue to date and should provide employers additional assurance if they choose to mandate vaccinations. The guidance also provides details on how employees can request accommodations and what accommodations an employer might consider for those employees who are unable to be vaccinated. The updated guidance also explains that information about an employee’s vaccination is to be kept confidential under the ADA, such that any documentation or confirmation of vaccination must be kept confidential and stored in a separate personnel file. However, requesting documentation or confirmation of a vaccination is not a disability related inquiry and, except in specific circumstances, HIPAA does not apply to employer requests for information about vaccination status. Finally, the guidance confirms that employers may offer incentives to employees to obtain vaccinations under a voluntary vaccination program but does little in the way of providing concrete guidance or examples of permissible incentives. Instead, the EEOC simply reiterated the otherwise applicable standard that any incentive must not be so substantial as to be coercive. As the guidance makes clear, if you are considering implementing a COVID-19 vaccine mandate for employees or a voluntary incentive program, there are a number of obstacles to navigate. The attorneys at Luchansky Law are continuously monitoring federal, state, and local developments surrounding COVID-19, which change regularly and can help you formulate and communicate your plans to employees. If you have questions about COVID-19 vaccination mandates or incentive programs, please call Greg Currey at 410-522-1020.

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Luchansky Law Team Jun 10 No Comments

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