Friday, April 28, 2006

Anti-Discrimination Protections Vary By County

In four Maryland counties (Prince George's, Montgomery, Howard, and Baltimore County), a Maryland employee can file a lawsuit alleging a violation of a local civil rights ordinance. These local ordinances allow greater potential damages than their federal counter-parts and offer broader protections. For example, the Montgomery County Code prohibits discrimination in employment based on an individual's "family responsibilities" and contains no cap on compensatory and punitive damages. Federal law offers no protection for family responsibilities and caps damages.

Employees in the select counties enjoy greater protection than employees who work in the Maryland's other twenty counties. A bill that would have authorized a private right of action for violation of local law in all Maryland counties failed to pass in the General Assembly.

Thursday, April 27, 2006

No absolute right to reinstatement under the FMLA

In YASHENKO v. HARRAH'S NC CASINO CO., No. 05-1256, 4th Cir. (April 27, 2006) the Fourth Circuit decided today that an employee has no absolute right to reinstatement upon return from FMLA-qualified leave. The plaintiff claimed that Harrah's interfered with the exercise of his FMLA rights when, after he took his most recent leave, it refused to restore him to his previous employment position. Yashenko argued that a section of the Act granted him "an absolute entitlement to restoration."

Not so the Fourth Circuit held stating that the right to reinstatement is limited. Specifically, an employer can avoid liability under the FMLA if it can prove that it "would not have retained an employee had the employee not been on FMLA leave." Harrah's did just that -- entitling it to summary judgment.

Wednesday, April 26, 2006

Rumors of Sexual Activity: Title VII -- No; Defamation -- Yes

In reviewing some of the United States District Court for the District of Maryland opinions, I came across Bystry v. Verizon Services Corp., CCB-04-01 (March 31, 2005). There, an internal security employee's statements that Ms. Bystry was involved in a sexual relationship with a co-worker led to her termination. Ms. Bystry claimed the statements evidenced gender discrimination and were defamatory.

Judge Blake granted Verizon's motion for summary judgment on Ms. Bystry's gender discrimination claim. The Court held that the rumors of Ms. Bystry's sexual activities were not based on her gender. "[D]iscrimination based solely on sexual activity or rumors of sexual activity is insufficient."

As for defamation, Judge Blake found sufficient evidence that Verizon employees spread the rumors intentionally or recklessly. The security employee who made the statements claimed she got her information from other Verizon employees. However, these other employees specifically denied they ever made statements about Ms. Bystry's sexual activities.


James Rubin

These materials have been prepared by The Rubin Employment Law Firm, P.C. for information purposes only and are not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between the sender and receiver. Internet subscribers and online readers should not act upon this information without seeking professional counsel.

Maryland Court of Appeals to Rule on Ministerial Exception

The Spring 2006 issue of the Maryland State Bar Association Section of Labor and Employment Law published “Doing God’s work? Maryland Court of Appeals will Review how the Ministerial Exception Applies to Religious Employees.” The article discusses Archdiocese of Washington v. Moerson, 389 Md. 124, 883 A.2d 914 (2005). In Moerson, the Maryland Court of Appeals is faced with deciding whether the ministerial exception applies to a church organist's tort claims against his former employer.


James Rubin

These materials have been prepared by The Rubin Employment Law Firm, P.C. for information purposes only and are not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between the sender and receiver. Internet subscribers and online readers should not act upon this information without seeking professional counsel.
Maryland Court of Appeals Grants Cert. in Haas.

On April 12, 2006, the Maryland Court of Appeals granted certiorari in Suzanne Haas v. Lockheed Martin Corporation. The issue in Haas is when the statute of limitation commences in a discrimination case. Haas contends that the statute began to run on the day that she was actually discharged, October 23, 2001. Her employer contends that the statute began on the day that she was notified of her prospective discharge, October 9, 2001.

In December 2005, the Court of Special Appeals ruled that in determining the point in time when the statute of limitations begins to run, the focus is on the time of the discriminatory act, i.e, at the time of notification that appellant would be discharged, not the point at which the consequences of the unlawful act are actualized, i.e., at the time of termination of appellant’s employment.

James Rubin

These materials have been prepared by The Rubin Employment Law Firm, P.C. for information purposes only and are not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between the sender and receiver. Internet subscribers and online readers should not act upon this information without seeking professional counsel.

Tuesday, April 25, 2006

Give me a break. Working during breaks can result in overtime.

In Chao v. Self Pride, Inc. RDB No. 03-3409 (June 14, 2005) Judge Bennett granted partial summary judgment in favor of Community Living Assistants (CLAs) -- represented by the Department of Labor -- against their employer, Self Pride. Self Pride operated community living facilities in Baltimore, Maryland.

The CLAs sued for the overtime they earned when they worked a 48 hour weekend shift. Self Pride's defense was that CLAs did not work more than 40 hours in a week because it gave the CLAs two four hour breaks. But the CLAs produced undisputed evidence that there were no breaks because the residents required constant care. Further, the CLAs showed that Self Pride deducted the breaks from the employees' time regardless of whether the employees actually took the breaks.

The Court ruled that Self Pride violated the Fair Labor Standards Act by failing to keep appropriate time records; and was was liable for liquidated damages. Judge Bennett also ruled that FLSA permitted individual liability for the CLAs' supervisor and that such liability was warranted in this case.

James Rubin

These materials have been prepared by The Rubin Employment Law Firm, P.C. for information purposes only and are not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between the sender and receiver. Internet subscribers and online readers should not act upon this information without seeking professional counsel.

Monday, April 17, 2006

Terminal Commissions

The Maryland law on commissions is favorable to employees. The Law that applies to commissions in Maryland is the Maryland Wage Payment and Collection Law. http://mlis.state.md.us/cgi-win/web_statutes.exe?gle&3-501

A key provision of the Law states:

“Each employer shall pay an employee or the authorized representative of an employee all wages due for work that the employee performed before the termination of employment, on or before the day on which the employee would have been paid the wages if the employment had not been terminated.” Md. Code Ann. Lab. & Empl. §3-505. http://mlis.state.md.us/cgi-win/web_statutes.exe?gle&3-505


“Wages” are defined as “all compensation that it is due to an employee for employment,” including commissions. Md. Code Ann. Lab. Empl. §3-501(c)(1) &(2). http://mlis.state.md.us/cgi-win/web_statutes.exe?gle&3-501

Section 3-501.1 provides the employee a civil cause of action to recover wages withheld in violation of Section 3-505. In addition, the Court can award the plaintiff treble damages and reasonable attorney’s fees. http://mlis.state.md.us/cgi-win/web_statutes.exe?gle&3-507.1

The Maryland Court have issued a series of opinions on the rights salespeople have to collect their earned commissioned under the Maryland Wage Payment and Collection Law.

Admiral Mortgage, Inc. v. Cooper, 357 Md. 533, 745 A.2d 1026 (2000).

In Admiral Mortgage, Inc. v. Cooper, 357 Md. 533, 745 A.2d 1026 (2000), an employee, whose main job was to generate and develop loans, sued for commissions that closed after his termination. For the loans in question, Mr. Cooper had obtained a completed application and other necessary documents and turned the files over to another employee for processing and closing. 357 Md. at 537, 745 A.2d 1026. Admiral Mortgage claimed that, "when a loan officer left, any of his or her pending applications would be worked on by someone else, and that person would be paid the commission when the loan closed." Id. at 544, 745 A.2d 1026. Rejecting the employer’s assertion that no commission was due on any loan that had not closed by the time the plaintiff left his employment, the jury awarded the plaintiff the unpaid commissions. The Maryland Court of Special Appeals affirmed the judgment based upon the jury award.


● Medex v. McCabe, 372 Md. 28, 811 A.2d 297 (2002)

In Medex, the plaintiff was a sales representative for a medical supply manufacturer. Part of his compensation package was incentive fees based on sales made during fiscal years. His employment agreement, however, provided that “[p]ayment from all Company incentive compensation plans is conditional upon meeting targets and the participant. . . [being] employed at the time of actual payment.” 372 Md. at 33, 811 A.2d 297.

The plaintiff resigned on February 3, 2000, four days after the fiscal year ended. The employer paid the inventive fees on March 31, 2000. Because the plaintiff was not employed on that date, his employer refused to pay plaintiff’s fees.

Reversing the decision of the trial court, the Court of Appeals held that the plaintiff was entitled to the incentive fees. While acknowledging that under common law contract principles, the contract provision would have provided sufficient basis to deny payment, the Court of Appeals noted that “[c]ontractual language between the parties cannot be used to eliminate the requirement and public policy [of §3-505] that employees have a right to compensated for their efforts. Id. at 39, 881 A.2d 297. The court found the contract language in question invalid and unenforceable. Id.

The Medex Court further explained that employers in this State cannot hold their employees hostage by imposing arbitrary barriers to their compensation. The Court of Appeals held that “the employee’s right to the payment of wages vests without satisfaction of the provision of continued employment. To hold otherwise would place the rights of employees to these wages at the whim of their employer, who could simply terminate any at-will employee whose incentive fees if didn’t wish to pay.” Id. at 42, 811 A.2d 297.

McLaughlin v. Murphy, Civ. No. CCB-04-767, 2004 WL 1634980 (D.Md. July 20, 2004) (Blake J.)

In Murphy, the plaintiff was a loan officer paid by commission. His employment agreement provided that, should his employment be terminated, he would not receive a commission on loans that had not settled before termination. After he was terminated for lying about his dealings with a client, Mr. McLaughlin brought claims against his former employer under the Wage Payment Act for commissions on three loans that he had originated but had yet to close at the time of his
termination.

In denying the plaintiff’s claim, Judge Blake noted that, for two of the pending loans, Mr. McLaughlin had signed up the customers for loan programs for which they did not qualify. As a result, these loans had to be completely redone by another loan officer. Significantly, the replacement loan officer was paid the commission once the loans closed. The third loan had yet to close when Judge Blake issued her decision. 2004 WL 1634980 at *5.2


Rogers v. Savings First Mortgage, LLC, 362 F. Supp. 2d 624, 643-646 (D.Md. 2005)

The plaintiffs in Saving’s First were loan officers who sued their employer for unpaid commissions on loans that went to closing after a “voluntary or involuntary” termination. 362 F. Supp 2d at pp. 624, 627. The employer’s policy was not to pay commission to a loan officer on any deal that went to closing after a loan officer’s employment terminated.

After reviewing Murphy and Admiral Mortgage, Judge Nickerson denied the employer’s
motion for summary judgment in Savings First. He found the facts there were more similar to Admiral Mortgage than Murphy. The loan officers at Savings First developed leads then assigned most of the administrative work to other employees. Significantly, after the plaintiffs terminated their employment, Savings First did not hire new loan officers to complete the work. Nor did it pay commissions to any other loan officer. It just kept the money. In such circumstance, the Court could “[]not conclude that Defendants' bright line rule denying all Plaintiffs their terminal commissions is reasonable.”

James Rubin

These materials have been prepared by The Rubin Employment Law Firm, P.C. for information purposes only and are not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between the sender and receiver. Internet subscribers and online readers should not act upon this information without seeking professional counsel.