MSLaw Blog

On March 6, 2020, the Miles & Stockbridge Labor, Employment, Benefits & Immigration practice group presented its eighteenth annual Hot Topics in Employment Law seminar to clients from throughout Maryland and beyond. Topics covered included reasonable accommodations; leave issues under the ADA, FMLA, and state and local leave laws; and the myriad issues raised on a day-to-day basis with Human Resources professionals, including Coronavirus concerns, government investigations, and more. Marc Freedman, Vice President of Workplace Policy for the U.S. Chamber

The U.S. often touts the “rule of law” as its most important export. But a recent federal appellate decision reveals to foreign countries that America does not practice the principles it espouses. The opinion in DeJoria v. Maghreb Petroleum Exploration S.A. (5th Cir. 2019) (DeJoria II), shows that, with enough money and influence, an American judgment debtor can change the law retroactively to avoid having to pay a huge overseas judgment. Click here to read the full article written by Thomas Wolf

On February 24, 2020, in Latiolais v. Huntington Ingalls, Inc., the Fifth Circuit joined the Third, Fourth, and Eleventh Circuits in applying the plain language of the revised Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1).  In doing so, it permitted a government contractor defendant to remove an asbestos-related lawsuit against it to federal court. James Latiolais worked as a machinist aboard the USS Tappahannock and alleged he was exposed to asbestos while the ship underwent refurbishing at government contractor Avondale

Definitely maybe. Severance benefits are subject to ERISA if they comprise a “plan, fund or program.” The Supreme Court held that there is a plan, fund or program for severance benefits if (1) payment requires an “ongoing administrative scheme,” or (2) benefits are more than a one-time, lump-sum payment triggered by a single contingency that may never happen. On what is an ongoing administrative scheme, courts have been notoriously inconsistent about both the minimum required benefit (or combination of benefits) and

During the 2019 legislative session, the Maryland General Assembly passed a new bill called “Criminal Record Screening Practices (Ban the Box),” which prohibited certain employers from inquiring about an applicant’s “criminal record.”  Following the close of the legislative session, Governor Larry Hogan vetoed the bill. Now, in the 2020 session, the Maryland General Assembly has overridden the veto and the initial bill will go into effect. The law applies to employers with 15 or more full-time employees and bans employers from

In my last post, “Real Estate Alphabet Soup: J Is for Just Compensation” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “K.” K is for “knowledge.” In the realm of real estate, just as they say in life, “knowledge is power.”   “Knowledge” from a real estate perspective, and particularly for a potential purchaser, is essential to ensuring that the purchaser knows exactly what they are buying

January 2020 was a very important month for DOD’s Cybersecurity Maturity Model Certification (CMMC) initiative.  Last week, on January 31, 2020, DOD issued CMMC “Version 1.0” to the public.  The Version 1 release includes three documents:  a “Briefing”; the CMMC Version 1; and Appendices A through F.  Also on January 31, DOD officials held a news conference discussing aspects of the CMMC initiative that are not discussed in Version 1.0.  Earlier in January 2020, the CMMC initiative took another significant

On January 9, 2020, USCIS published a notice in the Federal Register to formally announce the implementation of the new registration process for H-1B cap-subject (lottery) petitions for fiscal year 2021. According to USCIS, the initial H-1B petition registration period will run from March 1 through March 20, 2020, and selected registrants will be notified no later than March 31, 2020. Employers may submit full petitions and supporting evidence for selected employees within the filing period to be specified by

In my last post, “Real Estate Alphabet Soup: I Is for Improvements” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “J.” J is for “just compensation.” In the realm of real estate, “just compensation” relates to the government’s “taking” of a property under its power of eminent domain. A government can exercise its power of eminent domain to “take” a property for a public purpose. The Fifth

For the first time in more than 30 years, Maryland’s wetland regulations will undergo a review and update, for which the Maryland Board of Public Works’ Wetlands Administration (“BPW”) is soliciting comments on or before January 31, 2020. CURRENT DRAFT CHANGES – While the proposed redrafted regulations (“Proposed Draft”) are a restatement of current regulations (COMAR 23.02.04), several changes are being proposed to address current issues and practices.  Notable proposed changes include: Elimination of Board of Public Works fees for the issuance

On December 13, 2019, DOD issued “Draft Version 0.7” of its Cybersecurity Maturity Model Certification (CMMC) to the public. Version 0.7 is a 190-page document, compared to the 90-page Version 0.6 issued in November of this year. Most of the increased length of Version 0.7 is attributable to two new appendices providing “Discussion and Clarification” for CMMC Levels 2 and 3. The new information in Version 0.7 does not, however, address many fundamental questions associated with the CMMC initiative. Background As discussed in

Citing shortcomings in Federal anti-discrimination law, a growing number of state and local legislatures are enacting laws prohibiting discrimination in regards to hairstyle. Historical Treatment of Hairstyle under Federal Law Title VII of the Civil Rights Act of 1964 – the landmark Federal anti-discrimination law – has long prohibited discrimination on the basis of race, color, or national origin, amongst other protected characteristics.  However, Courts have generally rejected the argument that discrimination on the basis of hairstyle can amount to discrimination on

On November 8, 2019, the Small Business Administration published a proposed rule to combine the 8(a) Business Development (BD) Mentor-Protégé Program with the All Small Mentor-Protégé Program. 84 Fed. Reg. 60,846 (Nov. 8, 2019) The far-reaching SBA proposal also includes changes to the mentor-protégé programs, changes affecting joint ventures, changes for certain details in the 8(a) Program, and new requirements for certain multiple-award contracts, among others. Comments on the proposed rule are due January 17, 2020. Combining the 8(a) BD and All

As we approach the holiday season, immigration practitioners, interested employers, and foreign nationals are gearing up for yet another H-1B lottery season. The upcoming lottery season will be significantly different than in previous years due to USCIS’s implementation of a new H-1B electronic registration system that will dramatically change how H-1B cap-subject petitions are filed and selected. New H-1B Electronic Registration System On January 31, 2019, the Department of Homeland Security published a new rule introducing an electronic registration system for cap-subject

In my last post, “Real Estate Alphabet Soup: H is for Homeowners’ Association” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “I.” I is for “Improvements.” In the area of real estate, “improvements” are a valuable addition to property, or an upgrade or enhancement to its condition, more than mere repairs, the cost of which, in terms of labor or capital, are intended to enhance the value,

Often, trial lawyers minimize the importance of a timely evidentiary objection. Trial lawyers think that appellate courts review evidentiary objections under a deferential “abuse of discretion” standard and that one single such ruling will not overturn the verdict. A recent case shows that this received wisdom may be wrong in certain circumstances. In Thomas v. Grant, the Court of Special Appeals of Maryland vacated the Circuit Court for Prince George’s County’s judgment and remanded for a new trial because the trial

Who’s excited for the company holiday party?! Probably not your friendly neighborhood employment lawyers who will tell you that employees imbibing together can create risk for employers. This doesn’t mean that no fun can be had, but it does mean that employers should do what they can to manage risk in connection with end-of-year celebrations. An employer’s liability for the negligence of its employees following the consumption of alcohol furnished by the employer is called “social host” liability, and varies by

On November 7, 2019, DOD issued “Draft Version 0.6” of its Cybersecurity Maturity Model Certification (CMMC) – a 90-page document that is available on DOD’s CMMC website.  Version 0.6 is a significant step forward, but there are still a large number of unanswered questions concerning the CMMC initiative. Background In October 2016, DOD issued a final rule implementing the current version of the clause at DFARS 252.204-7012, ‘Safeguarding Covered Defense Information and Cyber Incident Reporting.”  The clause is costly and burdensome, requiring (for example)

Poland has been designated into the Visa Waiver Program (VWP). Starting November 11, 2019, eligible citizens and nationals of Poland will be able to travel to the United States without a visa for tourism and business trips of up to 90 days.   What is VWP? The VWP is administered by Department of Homeland Security and enables eligible citizens or nationals of designated countries traveling on passports with embedded computer chips, and who have successfully obtained an Electronic System for Travel Authorization

On October 29, 2019, the Seventh Circuit held that Burlington Northern Santa Fe Railway Company (“BNSF”) did not violate the Americans with Disabilities Act (“ADA”) by refusing to hire a job applicant due to his obesity. The applicant, Ronald Shell (“Shell”) sought a job with BNSF as an intermodal equipment operator. The position required performance of various duties including climbing on railcars, driving trucks, and operating cranes to load and unload containers. BNSF gave Shell a conditional offer contingent on his

In my last post, “Real Estate Alphabet Soup: G is for Guaranty” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “H.” H is for “homeowners association.” A homeowners association or “HOA” is an incorporated or unincorporated association which has the authority to govern a group comprised of individual lot owners or home owners within a development of properties, often referred to as a subdivision. The rights afforded

On October 8, 2019, the United States Supreme Court heard two oral arguments in three highly anticipated cases centered on the controversial issue of whether sexual orientation and transgender status fall within the protected class of “sex” under Title VII, a 1964 civil rights law protecting employees against discrimination. The first argument consolidated two cases with gay male plaintiffs who alleged they were fired because of their sexual orientation, Altitude Express, Inc. v. Zarda and Bostock v. Clayton County. The second argument was

Hey, now!  It isn’t 1972 and John Lester “Johnny” Nash, Jr., did not jump from his singer-songwriter gig to writing regulations for Baltimore City, but to be sure, fall is here, the rain is (mostly) gone, and we have a much clearer view of the totality of applicable Baltimore City procurement regulations. It is now much easier for contractors, suppliers, and vendors to find City regulations concerning the procurement process. In fact, I think that it is fair to say

In my last post, “Real Estate Alphabet Soup: F is for Foreclosure” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “G.” G is for “guaranty.” A guaranty is a promise or agreement to answer for, that is, to be responsible for, the debt or default of another. The “guarantor” is the person who makes the promise or “guaranty” for the benefit of the “guarantee” or beneficiary. The

An IT consulting company based in Southern California recently paid $48,193 to one employee after the Department of Labor (DOL)’s Wage and Hour Division (WHD) found that the company violated provisions of the H-1B visa program by failing to comply with Labor Condition Application (LCA) requirements. Specifically, the WHD found in its investigation that Assigncorp had failed to pay the wage rate required by the LCA to its employee. Notably, in calculating the back wages owed to the employee, the

Banks, builders, developers and all those active in commercial real estate, particularly in Maryland, D.C., and Virginia, should be closely following proposed new Treasury Department rules governing foreign investment in real estate. Those rules may greatly complicate commercial real estate transactions in these states, especially transactions in real property near military installations.   Depending on the final wording of certain key provisions, these rules may sweep in far more transactions than Congress or the Treasury Department intended, transactions without any plausible

Effective January 1, 2020, an estimated 1.3 million workers may be newly eligible for overtime pay under the United States Department of Labor’s (“DOL”) final rule announced on Tuesday. The final rule updates the regulations issued under the Fair Labor Standards Act (“FLSA”) concerning exemptions from the Act’s requirements, codified at 29 CFR § 541. This is a significant change for employers given that the salary threshold for overtime eligibility was last updated 15 years ago. The salary threshold has been

During its 2019 session, the Maryland General Assembly (the “General Assembly”) passed two bills that amend the Maryland General Corporation Law (the “MGCL”). Both bills were proposed by the Business Law Section of the Maryland State Bar Association. On April 30, 2019, Governor Hogan signed both bills and they will take effect on October 1, 2019. The 2019 General Assembly had its sights set on the future. The amendments to the MGCL reflect the General Assembly’s recognition of the various electronic

Certain rental real estate owners are likely resting more comfortably knowing that they may take certain deductions from their federal taxes due to the IRS’ recent finalization of its earlier proposed Revenue Procedure. This Revenue Procedure delineates a safe harbor under which certain rental real estate owners may deduct income from qualified businesses or trades under Internal Revenue Code Section 199A. Until now, there had been much confusion as to which rental real estate owners were permitted to take this

For a number of years, the Equal Employment Opportunity Commission (“EEOC”) has taken the position that, pursuant to the Americans with Disabilities Act (“ADA”), an employer’s obligation to provide a reasonable accommodation requires the employer to reassign disabled employees to an open position without requiring them to compete for the job. This position has been hotly contested and courts across the country have reached differing conclusions. Until recently, no court in Maryland had opined on this issue. The U.S. District

On September 3, 2019, U.S. Citizenship and Immigration Services (USCIS) announced a notice of proposed rulemaking that would require employers seeking to file H-1B cap subject petitions to pay a $10 fee for each electronic registration they submit to USCIS. The public has 30 days to submit comments on the proposed regulation. By way of background, USCIS is planning to implement a new system for the filing of cap-subject H-1B petitions. Please see our January 31, 2019 blog post. Under the new

Background DoD’s 2016 final rule promulgating cybersecurity requirements at DFARS 252.204-7012 was a momentous development for DoD contractors, in part because the requirements included compliance with 110 security controls in National Institute of Standards and Technology (“NIST”) Special Publication 800-171. Compliance with these requirements is burdensome and expensive. Earlier this year, DoD announced a separate cybersecurity initiative called the Cybersecurity Maturity Model Certification (“CMMC”), which may prove to be just as significant for contractors as the 2016 final rule. As we

Many employers purchase Employment Practices Liability Insurance (EPLI) to insure against loss as a result of employment claims. However, employers who do not carefully read their policies could be surprised by what is (or is not) covered and end up with buyer’s remorse when they realize they didn’t get what they thought they were getting. EPLI policies may vary in coverage. Employers should read the coverage provisions closely to make sure that they are receiving coverage for claims that are important

In my last post, “Real Estate Alphabet Soup: E is for Easement and Eminent Domain” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “F.” F is for “foreclosure.” A foreclosure is the termination of a right to property. A foreclosure action is an equitable action to compel the owner of the property to make payment on a mortgage or other debt, such as a deed of trust,

Small business federal contractors with annual revenues close to a relevant size standard should carefully review two important recent developments. The Small Business Administration (the “SBA”) adjusted its size standards, so that every size limit is now higher and the SBA will now average annual revenues over the preceding five years of operating rather than the previous three, as currently measured.   So small business federal contractors, or firms that recently outgrew size limits for qualifying as small businesses, should carefully

With the proliferation of the #MeToo movement in late 2017 came concerns over the role that employment contracts and settlement agreements played in concealing abuse by high-level executives. Confidentiality, non-disclosure and “forced arbitration” clauses came under particular scrutiny with reports that accusers were silenced by such agreements or required to litigate their claims in confidential arbitration proceedings out of the public eye. These personal accounts have prompted the passage of laws across the U.S. restricting or prohibiting non-disclosure agreements and

The #MeToo movement has brought public awareness to claims concerning pay disparity based on gender. As more and more women bring equal pay claims and enter into hefty settlements, the general public begins to internalize the message that women are often paid less than men. In this climate, employers have good reason to review their pay practices and take steps to remedy any inequities discovered before an equal pay claim is raised. Equal pay issues can arise in any industry. In

As many of you know, an employer does not have to offer COBRA health insurance coverage to an employee who’s discharged for “gross misconduct.” Unfortunately, COBRA does not define “gross misconduct,” and courts are divided on what it means. Can you guess if the following facts comprise gross misconduct? Nurse N’s primary duties include giving injections, supplying medications, and assisting with examinations at a family care doctor’s office. Late one afternoon, a patient arrived to receive a Toradol injection, an anti-inflammatory

U.S. Small Business Administration (“SBA”) regulations require that mentor-protégé and socioeconomic joint ventures designate the protégé or socioeconomic member as the “managing venturer” of the joint venture. However, the regulations do not define “managing venturer” or state how much control such a “manager” must maintain over the joint venture. In the context of typical small business operating entities (i.e., not joint ventures), SBA’s Office of Hearings and Appeals (“OHA”) has offered detailed guidance on what it means to “control” such entities, but

On July 11, 2019, the Environmental Protection Agency (the “EPA”) finalized its policy (the “Policy”) to defer environmental investigations and enforcement actions to authorized state agencies as the “primary implementer.” The Policy, set forth in “Enhancing Effective Partnerships Between the EPA and the States in Civil Enforcement and Compliance Assurance Work,” issued by Susan Parker Bodine, EPA’s Assistant Administrator for Enforcement and Compliance Assurance, seeks “to enhance effective partnerships with states in civil enforcement and compliance work.” The Policy replaces

The Fourth Circuit’s recent decision in Evangeline Parker v. Reema Consulting Services, Incorporated, 915 F.3d 297 (4th Cir. 2019) grabbed headlines for its controversial ruling that workplace gossip can support a sex harassment claim under Title VII, but the Court’s decision may also be a harbinger for a decision down the road recognizing sexual orientation bias as a form of sex-based discrimination under Title VII. The Fourth Circuit Reinforces the View That Title VII Prohibits Gender-Stereotyping Through Workplace Gossip Despite starting as a

In my last post, “Real Estate Alphabet Soup: D is for Deed” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “E.” E is for “easement.” An easement is a right, created by either express or implied agreement, of one land owner (the servient estate) to allow another land owner (the dominant estate) to have lawful use and benefit of its land for the specific purpose stated. There

The Treasury Department suspended sales of SLGS on March 1, 2019. The U.S. Department of the Treasury has announced that it will reopen the SLGS window effective August 5, 2019 at 12:00 Noon ET.     The full announcement is available here. Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author

A staffing and recruiting company based in El Segundo, California recently paid $58,815 in fines to two H-1B workers after an investigation by the Department of Labor (DOL)’s Wage and Hour Division (WHD) found that the company had not complied with applicable H-1B Labor Condition Application (LCA) requirements. Specifically, the WHD found that the company, Login Consulting Services, Inc.: Improperly required an H-1B worker to pay H-1B visa petition fees; Impermissibly “benched” an H-1B worker (“benching” refers to the practice where H-1B

HSI Increases I-9 Audits to Target Unauthorized Employment In October 2017, U.S. Immigration and Customs Enforcement (“ICE”), a division of the Department of Homeland Security, pledged to increase workplace enforcement by a factor of four to five. The acting ICE director characterized this as a “clear message to employers who scheme to hire and retain a workforce of illegal immigrants.” As promised, there has since been a surge in workplace enforcement actions by ICE, according to statistics published by Homeland Security

Data security and privacy concerns have become one of the top issues keeping business leaders up at night. According to the Ponemon Institute’s 2018 study regarding the cost of data breaches, data breaches are increasingly costly and result in more consumer records being lost or stolen, year after year. 1 In 2017, for example, the average per capita cost of a data breach rose from 2016’s average of $141 to $148, an increase of 4.8%. 2 To help address these concerns, employees should be

In a significant decision for Government contractors, the Supreme Court has expanded the types of “commercial or financial information” that are “confidential,” and therefore exempt from disclosure under the Freedom of Information Act (FOIA). The case is Food Marketing Institute v. Argus Leader Media, 588 U.S. ___ (No. 18-481, June 24, 2019). FOIA’s Exemption 4 shields from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 1 To prevent disclosure, under previous lower-court decisions, information that was

In 2016, President Obama released a “Call to Action” encouraging state legislatures to take a hard look at non-compete reform. The “Call to Action” urged states to ban restrictive covenants that impose unnecessary restrictions on the mobility of specific categories of workers, including lower-wage earners. Recently, Maryland joined a growing number of states that have answered the Obama Administration’s call and taken steps to limit the enforceability of non-compete agreements. Since 2016, the Maryland legislature has twice introduced but failed to

On July 3, 2019, the Court of Appeals of Maryland affirmed the decision of the Court of Special Appeals in Wallace & Gale Asbestos Settlement Tr. v. Busch, 238 Md. App. 695 (2018), aff’d, No. 58, 2019 WL 2865070 (Md. July 3, 2019). The Court found that the jury reasonably inferred that, based on W&G’s “substantial” presence during the construction of a high school building, W&G was responsible for the asbestos exposure and resulting illness of a plaintiff who worked only in

In my last post, “Real Estate Alphabet Soup: C is for Contract” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “D.” D is for “deed.” As part of any agreement for the transfer of real estate there must be a deed from the grantor (the owner or seller) conveying to the grantee (the buyer or recipient) all of the grantor’s right, title and interest in the real