Employment Law

From reports about sexual harassment to increases in minimum wage, employment laws make the headlines. LPP Law will work to protect you from costly suits and bad press and ensure that your employment practices comply with federal, state, and local laws, and industry best practices.

Employee Relations

Managed properly, employer-employee relationships are an organization’s greatest asset, but managed improperly, those same relationships can damage or destroy an organization. Employment laws are pervasive and influence virtually every aspect of the workplace relationship. To build a successful, high functioning organization, LPP Law will assist you with:

  • Creating and implementing sexual harassment policies and complaint procedures
  • Classifying and paying workers properly
  • Developing legally compliant social media policies
  • Drafting and reviewing enforceable non-compete, nondisclosure and severance agreements
  • Troubleshooting workplace conflicts
  • Resolving disputes through negotiation, mediation, or, when required, litigation before the EEOC, NLRB, local civil rights agencies or the courts

We assist employers with managing every aspect of the workplace relationship, from the recruiting/hiring process through post-termination.

Hiring

Employment law compliance requires an understanding of what attributes you may or may not consider in the hiring process. LPP Law will guide and advise you on issues such as:

  • Job applications and interview questions. What can be asked?
  • Equal opportunity employer notice and compliance
  • Social media site use as a means of background checks
  • Polygraph use
  • Credit history use
  • References
  • Criminal background checks
  • Drug and alcohol screening
  • Offer/rejection letters
  • Negligent hiring
  • Employment eligibility verification compliance (I-9)
  • New employee state and local registration requirements
  • Tax withholding information collection and compliance

 

Worker Classifications: Employee or Contractor? Exempt or Non-Exempt?

Whether a worker is an Employee (W-2) or a Contractor (1099), depends on the law and the worker’s duties, not the parties’ preferences. Some workers, such as household workers or landscapers, are statutory employees. Real Estate Agents may be contractors or statutory employees; it depends on the specific facts and federal (IRS) and state employment laws. Misclassification of workers as exempt from the wage and hour laws can lead to expensive consequences. For example, Maryland employers can be held liable for three times the wages due plus the employee’s attorneys’ fees. Both types of worker misclassification can lead to class actions law suits. LPP Law will help you avoid costly litigation, taxes and penalties associated with improper classification of workers by assessing your workforce and helping you classify your work force correctly and comply with applicable legal requirements:

  • Classification of workers as employees or independent contractors
    • Unemployment insurance
    • Federal, state, and local tax obligations
  • Classification of employees as exempt or non-exempt from the requirements of the Fair Labor Standards Act
    • Wage requirements (minimum wage, overtime, living wage, etc.)
    • Deductions from paychecks
    • Tipped employees and use of “tip credits”
    • Timely payment of wages
    • Child labor laws
    • Interns
    • Pay for work related travel
    • Paid sick leave

 

Written Employment Agreements

LPP Law will evaluate your business needs and advise whether a written employment agreement is prudent. Issues to consider:

  • Covenants not to compete
  • Restriction on solicitation of clients
  • Protections for trade secrets and proprietary and confidential information
  • Indemnity for employee’s violations of obligations owed to former employer
  • Special compensation arrangements such as commission-based pay
  • Fiduciary provisions for executives
  • Employment for a specified term

 

Discrimination, Harassment & Retaliation

Treating every employee with dignity and respect and making decisions based on an employee’s work performance is the best way to avoid unlawful discrimination charges. LPP Law will evaluate your company’s practice to ensure your company is in line with the numerous laws that define what unlawful discrimination is and the consequences for employers that discriminate or allow harassment and hostile work environments which include:

  • Title VII of the Civil Rights Act of 1964 – prohibition against discriminating against someone on the basis of race, color, religion, national origin,  or sex (including sexual harassment and pregnancy discrimination)
  • Federal and state Equal Pay Acts
  • Americans with Disabilities Act
  • Age Discrimination in Employment Act
  • Uniformed Services Employment and Reemployment Rights Act
  • The Genetic Information Nondiscrimination Act
  • Maryland, the District of Columbia and Virginia human and civil rights laws
  • Maryland Reasonable Accommodations for Disabilities Due to Pregnancy Act

 

Employee Performance

Talented, skilled, and hardworking employees are essential to your company’s organizational success. Performance evaluations can be powerful tools to communicate your organization’s expectations and enable your employees to maximize their potential in furtherance of your organization’s mission. LPP Law will help you devise and implement:

  • Formal performance evaluations
  • Goal oriented and specific criteria to avoid discrimination claims
  • Clear policies and expectations
  • Problem resolution policies

 

Leaves of Absence

Time away from work is an accepted part of the employment landscape. Common reasons are for sick leave or vacation, but federal and state laws mandate that certain employers permit employees leave under other circumstances and Maryland, Montgomery County and the District of Columbia require many employers to provide paid leave for a variety of reasons. LPP Law will advise you as to which laws apply to your business and develop legally complaint policies that fit your organization’s needs. We will consider issues and laws such as:

  • Family and Medical Leave Act
  • Maryland’s Healthy Working Families Act
  • Montgomery County’s Earned and Sick and Safe Leave law
  • District of Columbia Accrued Safe and Sick Leave Act
  • Pros and cons of separate vacation, sick and personal leaves vs. lump sum Paid Time Off (“PTO”) policies
  • Federal, state and religious holidays and observances
  • Jury duty and court appearances
  • Voting leave
  • Military personnel and family leave laws (federal)
  • Maryland Deployment of Family Members in the Armed Forces Act
  • Maryland Flexible Leave Act
  • Parental leave acts (MD and DC)

 

Employee Handbooks

A well-written legally compliant employee handbook is a valuable asset to an organization. Through an employee handbook, your organization can consistently and efficiently communicate the organization’s policies, procedures, and legal notice requirements. It is key to note that in any employment action, whether in an administrative tribunal or court, the employment manual will have to be turned over in discovery. LPP Law will access your employee handbook to ensure you create no unintended contractual rights or inadvertently broadcast illegal practices. In many cases, not having a written policy or failing to give required notices of rights will subject the employer to per se liability. LPP Law will assist with:

  • Review and regular update of policies to ensure legal compliance and current best practices
  • Policies and procedures crafted to fit your operational needs and legal requirements (Not all laws apply to all organizations and many depend on the number of employees in the organization.)
  • Enforcement mechanisms
  • Development of key components and policies of the employee manual:
    • Organization mission statement and history
    • Explanation of at-will employment
    • Disclaimer of contractual rights
    • Equal employment opportunity policy
    • Anti-Harassment policy
    • Americans with Disabilities Act requirements
    • Employee classifications: exempt/non-exempt
    • Work attendance and punctuality
    • Benefits and leave
    • Performance and discipline
    • Electronic communications and use of social media
    • Drugs, alcohol, and smoking
    • Dress code
    • Confidential and proprietary information
    • Conflicts of interest
    • Employee limits on expectation of privacy
    • Use of social media in and outside the work environment
    • Use of company equipment
    • Health and safety policies particular to the organization
    • Termination obligations, rights and consequences

 

Workplace Privacy

LPP Law will evaluate your company’s practices to ensure that as an employer you balance a worker’s right to privacy in the workplace against your interest in productivity, safety, security, and liability. LPP Law will access and evaluate the following:

  • Workplace privacy policy relating to employee areas, such as lockers, desks, and files
  • Electronic use policy, to include e-mail, electronic files, and computer use
  • Related laws:
    • Electronic Communications Privacy Act
    • Maryland Wiretap and Stored Communications Acts
    • Stored Communications Act
    • Computer Fraud and Abuse Act

 

Trade Secrets and Restrictive Covenants

Protecting confidential and proprietary information is critical to all organizations. State law affords some protection, but well-drafted policies and employment agreements may provide the best defense. As your legal advisor LPP Law will consider the following:

  • Uniform Trade Secrets Act (adopted in some form by 47 States, including Maryland and Virginia, as well as the District of Columbia)
  • Implementation and enforcement of trade secrets policy, including:
    • Defining what constitutes a Trade Secret for your organization
    • Restricting employee access to those with a “need to know”
    • Conducting appropriate background checks on employees with access
    • Employing physical and electronic security measures
    • Using a confidentiality agreement
    • Intellectual property protection agreement
  • Using Restrictive Covenants in an employment agreement that may include:
    • Non-competition
    • Non-solicitation of customers
    • Non-solicitation of employees
  • How to protect your legitimate business interests without impeding employee’s ability to use his/her skills and experience to make a living

The enforceability of restrictive covenants depends on the particular facts and circumstances of the employment relationship and the law of state in which the agreement is performed. Considerations include whether the prohibited work is truly competitive with the employer seeking to enforce the restrictive covenant, the industry in question, the transferability of an employee’s skills, the duration of the work restriction and often the geographic scope of the restriction. LPP Law’s experience with both creating non-competition agreements and enforcing them through litigation, makes it uniquely positioned to protect your business interests from unfair and unlawful competition.

Terminating the Employee Relationship

Whether by retirement, resignation, or involuntary termination, the relationship between employer and employee will inevitably end. LPP Law will ensure that your business has sound policies and proper management of the employee termination process to ensure you avoid claims of wrongful termination or violations of wage and hour laws and, most importantly, disruption to your organization’s operations. We consider the following:

  • Termination Process
    • At–will or for cause
    • Pre-termination investigation/review and decision making
    • Mass layoffs and notice requirements
    • How and when to notify employees regarding termination
    • Return and protection of organization’s property, including email
    • Final paycheck and benefits (including COBRA or similar state statutes)
    • Severance and Release Agreements (Older Worker’s Protection Act)
    • Unemployment compensation eligibility
    • Termination protocols
  • By statute, an employer may not terminate an employee for the following reasons (this list is not exhaustive):
    • Race, sex, color, religion, or  national origin
    • Disability
    • Genetic information
    • Sexual orientation (depending on the state/jurisdiction)
    • Age (over 40 under federal law)
    • Pregnancy
    • Refusal to work in an unsafe workplace
    • Union affiliation or sympathies
    • Bad credit (federal and state specific limitations)
    • Wage garnishment due to indebtedness
    • Declaring bankruptcy
    • Jury duty
    • Military service
    • Taking leave under the Family and Medical Leave Act or the local statutes
    • Filing a claim for Workers’ Compensation

 

References

Honesty is the best policy. In most states, employers are afforded limited immunity from claims of defamation or libel for providing accurate references regarding former employees.  A robust economy benefits all in the community and is dependent on the skills, experience, knowledge, and ethical and legal conduct of its workforce. LPP Law will help protect you so you have no fear of giving honest feedback to those who may inquire about employees terminated for cause.