MSLaw Blog

Commercial landlords and tenants are encouraged to closely review their lease documents to determine (1) whether, and to what extent, the COVID-19 events, declarations and restrictions qualify as a force majeure performance excuse under the applicable lease, and (2) any applicable requirements for providing notice of nonperformance under that lease. Force majeure provisions are included in many commercial leases and generally operate to excuse a party’s nonperformance when an event outside of the party’s control prevents them from fulfilling their

As the events surrounding the COVID-19 pandemic unfold, the insurance industry is bracing itself for the multitude of claims it will inevitably face. To maximize potential coverage, policyholders can and should act now to analyze their coverage so that operational decisions can be made with insurance issues in mind. The current economic shutdown is causing losses that will trigger insurance coverage claims under many lines of coverage, including: Business Interruption (BI) Closings and supply chain disruptions are causing losses in virtually every

The Centers for Medicare and Medicaid Services (CMS) recently issued guidance in response to questions from the hospital provider community concerning Coronavirus Disease (COVID-19).  CMS provides useful guidance on some of the more mundane, daily administrative aspects of care, while reminding hospitals that the Centers for Disease Control and Prevention (CDC) provides critical guidance for clinical decisions. Some key elements from CMS, as they relate to essential patient rights such as access to care, visitation, and discharge, include the following:  1.    Should COVID-19

On March 14, 2020, the United States House of Representatives passed with overwhelming bipartisan support the “Families First Coronavirus Response Act” (FFCRA), which if ultimately signed into law, would impose significant obligations on employers with fewer than 500 employees, including mandatory additional paid sick leave and expanded Family Medical Leave Act leave. The United States Senate is expected to take up the legislation this week, and while there may be some further changes, President Trump has expressed his support and indicated

In my last post, “Real Estate Alphabet Soup: K Is for Knowledge” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “L.” L is for “Lease.” A Lease is a written agreement between two parties involving a right to the use and possession of certain real property for a set period of time. The first party is the “Lessor” sometimes also referred to as the “Landlord”, which is

As of March 11, 2020, the World Health Organization (“WHO”) officially declared the COVID-19 virus outbreak to be a global pandemic.  On an hourly basis, we are watching both government agencies and corporations respond by making drastic changes to their routine business operations and plans by cancelling events and otherwise restricting travel and large meetings.  Most companies are facing the dilemma of how to continue to do business while meeting their legal obligations to protect employees.  This article provides an

While response and preparedness efforts are in full swing throughout the country and globally, many employers are tackling how to handle a variety of employment issues in the face of the coronavirus pandemic. Most of our clients and other readers have likely already encouraged their employees to practice good hand washing and social distancing, and to stay home when they are sick, as the CDC has suggested through its Interim Guidance for Businesses and Employers. Beyond these recommendations, here are

An unfortunate by-product of the current COVID-19 pandemic is the growing trend of phishing attempts using public concern over this crisis to trick people into clicking on malicious links posing as resource information.  Phishing scams are hardly new threats but the coronavirus outbreak creates a uniquely strong environment for these scams to be effective.  People are anxious for constantly updated and valid information regarding the pandemic. This crisis is particularly ripe for security incidents because COVID-19 has the potential for

The COVID-19 (the “Coronavirus”) pandemic has the potential to cause business disruptions that may make the performance of a party’s obligations under a commercial contract difficult, unprofitable or impossible. Such disruptions include the loss of employees, disruptions in supply chains, travel restrictions and other governmental restrictions.  Various legal considerations implicate the rights and obligations of the parties to a commercial contract when the ability to perform is compromised by such a disruption. To assess the legal implications of such a disruption,

While there are many unanswered questions about COVID-19, or coronavirus, one thing is very clear --- older people and those with pre-existing medical conditions are most vulnerable to infection and related adverse outcomes.  COVID-19 is presenting novel challenges for all segments of our society, but the response of long term care providers literally can be a matter of life and death because of the unique vulnerability of residents. In an effort to assist long term care providers, the Centers for Disease

To prevent the spread of COVID-19 (the “Coronavirus”), last night, President Trump announced a thirty (30) day travel suspension from twenty six (26) European countries to the United States. The suspension will take effect on March 13, 2020 at midnight, EST. The President’s statements acknowledged some exemptions to the suspension for certain individuals, but indicated that a “tremendous amount of trade and cargo” would be directly impacted by the suspension. However, the attached Proclamation issued in connection with the travel suspension is much

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