Monday, January 24, 2011

Promise in Employee Handbook Can Become Enforceable Contract in Maryland

UPDATE: 11/28/12 -- The Fourth Circuit reversed the decision discussed below and found the disclaimers enforceable.  See my discussion here.

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     Many employers issue employee handbooks.  The handbooks usually include disclaimers that state that the handbooks do not change the "at will" nature of employment. 

     But, the United States District Court of Maryland recently ruled that an employer's anti-retaliation provision can become the basis for an enforceable contract.    A pharmaceutical representative alleged that her employer terminated her for reporting her supervisor's ethical violations.   The Company's handbook stated:

Retaliation and threats of retaliation against employees who raise concerns, or against individuals who appropriately bring important workplace and business issues to the attention of management, are serious violations of [the Company's] values and standards and will not be tolerated. . . . All directors, officers and employees are strictly prohibited from engaging in retaliation or retribution . . . which is directed against an individual on the basis of or in reaction to that individual making a good faith report to the Company . . . of suspected violations of law, regulation, policy or procedures, or Our Values and Standards.

     Despite several disclaimers, the Court ruled that the above language was sufficiently specific and definite to constitute an enforceable promise.  The Court held: "Given the unambiguous nature of the non-retaliation policy, the disclaimers that [the Company] relies upon are insufficient to defeat [the plaintiff's] reasonable expectation that [the Company] intended to limit its ability to terminate her for retaliatory reasons."

Friday, January 21, 2011

Legal Jujutsu: Compelling Arbitration When Sued For Alleged Breach of a Non-Compete

I have mentioned forced arbitration often on this blog.  That is, when an employer requires its employees to sign an arbitration clause and waive their right to a jury trial as a condition of employment

But, what happens when at the end of the relationship, it is the employer that sues the employee in Court for a non-compete violation?  With a bit of legal jujutsu, I have had some success getting the matter dismissed from Court based on a motion to compel and to dismiss using the employer-drafted forced arbitration clause.  Dismissal may or may not be the end of the story as the employer may still pursue the matter in arbitration.

Thursday, January 20, 2011

Bill to raise Maryland’s minimum wage faces opposition

A bill pending in the General Assembly proposes to gradually move the Maryland minimum wage to $10 per hour.  This article from the Daily Record notes the substantial opposition to the bill, including from the Maryland Chamber of Commerce.   Given the economic climate, I believe the odds of the bill passing are slim.

Wednesday, January 19, 2011

Recent Decision - Attorneys Fees Under The Maryland Wage Payment and Collection Law

   Daniel Barufaldi had an employment contract with the Ocean City Chamber of Commerce. He resigned when the chamber refused to pay him incentive-based compensation.


   Barufaldi sued the Chamber for breach of contract and unpaid wages under the Maryland Wage Payment and Collection Law (“MWPCL”), and the Chamber counterclaimed for breach of contract. The jury found that the Chamber had breached the employment contract and violated the MWPCL by failing to pay Barufaldi $60,000 in unpaid wages, and that the Chamber’s failure to pay was not the result of a bona fide dispute. The court, however, did not grant Barufaldi’s motion for attorneys’ fees.


On appeal the Court of Special Appeals vacated and remanded the trial court’s order denying Barufaldi’s motion for attorneys’ fees under the MWPCL. The Court stated that the MWPCL is a fee-shifting statute that requires courts to “liberally” exercise discretion to award attorneys’ fees where there is no bona fide dispute. Because the trial court did not set forth circumstances militating against any award of fees, and, in fact, had not offered any explanation at all of its reasoning in denying the fee request, the court vacated and remanded the issue of attorneys’ fees to the trial court.

Sunday, January 16, 2011

Consult an Attorney if You Have an In-Person Unemployment Hearing

Many lawyers were reluctant to handle unemployment hearings for individuals because the fees were capped by regulation.   But the regulation just changed.  Attorney's can now charge a fee of twice a claimant's weekly benefit amount.  If the case is complex, an attorney can petition for a higher fee.  Attorneys should be willing to take more of these cases.   I know I will.    

Friday, January 14, 2011

You May Be Entitled to Unemployment If You Quit With Good Cause for Health Reasons.

  Maryland's Unemployment law states that you are eligible benefits if you quit with "good cause."  Good cause is not fully defined but may be shown if the reason  you left work is "directly attributable to, arising from or connected with the conditions of the employment or the actions of the employer."

 Resigning because you suffer from a health problem resulting from an on-the-job injury may constitute good cause.  For example, in the attached decision (identifying information redacted), a Hearing Officer found my client quit with good cause for health reasons.  She suffered from a mold allergy.  When the office flooded, she began suffering symptoms. After being told the office would not be renovated for six months, she quit.  As stated, the Hearing Officer  found my client quit for justifiable reasons directly attributable to work.

Thursday, January 13, 2011

You May Not Be Within the Class of Employees That Can Be Covered by a Non-Compete Agreement.

  Maryland Employers often require employees to sign non-compete agreements as a condition of employment.  But just because you signed a non-compete agreement does not mean that it is enforceable as to you.  Only a narrow class of employee may lawfully be covered by such an agreement. 

  The case, Ecology Services, Inc. v. Clym Environmental Services, LLC, illustrates the point.  There, the Maryland Court of Special Appeal refused to enforce a non-compete agreement applied to “Radioactive Waste Specialists” and “Radioactive Waste Technicians.”  The Employer bringing the action could not prove that the employees possessed (a) any truly unique skills or (b) exploited any specialized personal contact at their new job. Truly unique skills are those that would make it difficult to find a substitute employee with the same skills.  Specialized personal contacts are generally limited to proprietary sales opportunities.

  In sum, an employer can only enforce non-compete agreement against a narrow class of employees and only when it can state a legally protectable interest. 

   See this post and contact an attorney if you are threatened with enforcement of a non-compete in Maryland.

Wednesday, January 12, 2011

Triple Damages When The Employer Disputes Only Part of the Wages Claimed

I recently tried a small Maryland Wage Payment and Collection Law case in the District Court of Maryland.  The employer conceded that it owed some -- but not all -- of the wages we were seeking.  The Court did not award the disputed amount;  but tripled the undisputed amount. The Court relied on this passage from my trial brief on the issue: 

An employer may be liable for treble damages on only a portion of the amount claimed.  In Medex, for example, the Court noted that the employer’s withholding of one part of the employee’s claimed wages “might itself be evidence of a lack of good faith” Id at 43.  Likewise in, Baltimore Harbor Charters, Ltd. v. Ayd, 365 Md. 366, 397, 780 A.2d 303 (2001), the Court noted that the “bona fide dispute” provision of § 3-507.2 contains no language which would permit an employer to withhold amounts it concedes are owed to employee. According to the Court:  “where an employer alleges the existence of a bona fide dispute as to the total amount of wages owed to an employee . . . yet concedes that a certain amount of wages are due. . . the employer acts at his or her peril in failing to pay the conceded amount.”  Id. The penalty provision in § 3-507.2 thus applies to any portion of the amount claimed to be owed or paid late that is not subject to a good faith dispute.
The Court's award of triple damages is important.  It allows my client to seek to collect his attorney's fees from the employer that withheld his wages.

Saturday, January 01, 2011

Contact Me

James Edward Rubin
The Rubin Employment Law Firm, P.C.
11 North Washington Street, Suite 520
Rockville, Maryland 20850
Phone (301) 760-7914
Facsimile (301) 838-0322
jrubin@rubinemploymentlaw.com

James Edward Rubin

  James E. Rubin is the founding partner of The Rubin Employment Law Firm, P.C. Before founding the firm, Mr. Rubin was a partner in a labor and employment boutique, where he managed the firm's employment litigation practice. Mr. Rubin also served as an associate with Sherman, Dunn, Cohen, Leifer & Yellig, where he represented national and local unions.  He received his undergraduate degree from Penn State University (1993) and his law degree from the University of Pittsburgh (1996).

Notable accomplishments include:

• Winning a complex First Amendment retaliation jury trial, recovering compensatory damages and 100% of claimed attorney’s fees ($143,116.78).

• Winning an $880,000 jury verdict on behalf of a commissioned salesperson

• Defeating motions to enforce a non-compete agreement at temporary restraining order and preliminary injunctions hearings.

• Winning class certification and summary judgment motions in an overtime collective action on behalf of ticket office employees against the Washington Redskins.

• Litigating a settlement opt-in collective action on behalf of dealership employees seeking minimum wage payments.

• Obtaining a double damages verdict in a suit brought under the Maryland Wage Payment and Collection Law


He has maintained an Avvo rating of 10.0 and was selected as a SuperLawyer in both Maryland and the District of Columbia.