MSLaw Blog

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

The final DFARS cybersecurity rule promulgated in 2016, which included the latest changes to the DFARS clause at 252.204-7012, was a significant development for DoD contractors, in part because it mandates compliance with the 110 security controls in National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171. DoD has been working with the contracting community since that time with respect to the implementation of the final rule, but has concluded that further compliance steps are needed in the

When a company negotiates either an employment agreement or separation agreement with an employee, the employee benefits offered are typically a large piece of the total package. However, the terms of these types of agreements are subject to various federal and state laws that can be difficult to navigate and coordinate. Examples include Section 409A of the Internal Revenue Code (the “Code”) and continuation health coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). As such, careful drafting

Introduction The #MeToo movement exploded in the fall of 2017 and put sexual harassment on the front pages of newspapers, websites and other media outlets. Since that time, #MeToo has inspired many people to come forward to tell their stories on sexual harassment and has continued to be relevant in a broad range of arenas from politics to entertainment. Particularly relevant for many employers, is the fact that this movement has had and continues to have a huge impact on the number

Background ‘No-poach’ agreements between businesses not to compete with each other for employees have long been held unlawful under Section 1 of the Sherman Antitrust Act, which prohibits certain restraints on trade and competition. Historically, the Department of Justice (“DOJ”) has filed civil enforcement actions against businesses entering into no-poach agreements with other businesses. In October 2016, however, DOJ and the Federal Trade Commission (“FTC”) issued joint Antitrust Guidance, establishing a stronger stance on enforcement actions and putting businesses on notice that

On May 31, 2019, the Department of State (DOS) updated its immigrant and nonimmigrant visa application forms (Forms DS-260 and DS-160, respectively) to require that visa applicants divulge their social media identifiers for all accounts used in the five-year period preceding the date of the visa application. While the new forms require visa applicants to list the username, handle, screen name and other identifiers associated with any social media account or profile, disclosure of passwords is not required. What’s the reason

In my last post, “Real Estate Alphabet Soup: B is for Buyer” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “C.” C is for “contract.” As part of any agreement for the transfer of real estate there must be a contract of sale between the seller and buyer. For a contract to be valid there must be an offer and an acceptance of the offer, or a

If you are a government contractor, one of the last things you want to see is your customer getting embroiled in the workplace problems of your employees. When your employees complain about workplace issues to the government customer, you invariably end up with an irritated customer who questions your ability to manage your workforce — not exactly the kind of performance review that leads to more business. And so it makes for good customer relations — and thus good business

On March 28, 2019, a federal grand jury indicted two executives for failing to timely report that the dehumidifiers their companies imported and distributed were known to catch fire. According to the U.S. Department of Justice, this is the “first-ever criminal prosecution for failure to report under the Consumer Product Safety Act.” Click here to read the full Law360 article written by Holly Drumheller Butler and Dwight Stone about a recent DOJ indictment for violating the CPSA through late reporting and misrepresentations - plus, how companies can avoid

There is a growing trend to regulate biometric data and severely punish companies that do not adequately protect this data. Every company that collects or uses biometric data should be careful to ensure compliance with applicable laws intended to protect this sensitive information. What is Biometric Data? Biometric data is generally defined as ‘unique physical identifiers including fingerprints, facial structures, iris scans, and voiceprints.’ While there are no current Federal laws governing the collection, use, and protection of biometric data, several states

Immediately following the close of the 2019 legislative session, this blog released a summary of the three new bills that could impact your workforce. One of those bills, the “Criminal Record Screening Practices (Ban the Box),” has now been vetoed by Governor Larry Hogan. The bill banned employers from requiring an applicant to disclose a criminal record at any time prior to the first in-person interview. Because of the veto, the bill will not take effect, but employers are still bound by

The American Bar Association’s 2018 Year in Review Chapter for Superfund and Natural Resources Damages Litigation is posted here, summarizing key cases and legislative developments under the Superfund law for environmental practitioners. Key developments include rule changes for reporting releases of agricultural emissions, claims against government contractors for problems during cleanups, medical monitoring claims arising from superfund sites, and developments related to financial assurance requirements for ongoing operations. Russ Randle, principal here at Miles & Stockbridge, prepared this chapter together with John Barkett

As predicted, a recent decision from the Federal District Court for the Eastern District of California is the first sign of a new, and potentially enormous wave, of Civil False Claims Act, 31 U.S.C. §§ 3729-33 (“FCA”) actions based on allegations of non-compliance with Federal procurement cybersecurity requirements. On May 8, 2019, that court issued a decision related to allegations of non-compliance with the Department of Defense’s (“DOD”) complex cybersecurity requirements in the DOD FAR Supplement (“DFARS”), 48 C.F.R. §

On April 16, 2019, Treasury issued its second set of proposed regulations (“OZ Regs 2”) regarding Section 14002 of the Internal Revenue Code of 1986, as amended (the “Code”). The OZ Regs 2 are very helpful and answer a substantial number of questions left open in the initial set of Opportunity Zone (“OZ”) regulations. First, the bad news: while the new rules are generally taxpayer friendly, they contain one significant disappointment, a negative answer to both the triple net lease

On March 4, 2019, the Court of Appeals of Maryland heard oral argument on an appeal from a $7.28 million jury verdict in favor of Plaintiffs William Busch and his wife Kathleen against the asbestos settlement trust established by Wallace & Gale (W&G). Wallace & Gale Asbestos Settlement Tr. v. Busch, 238 Md. App. 695, cert. granted, 462 Md. 84 (2018). In the absence of any direct evidence that W&G used asbestos-containing products at the construction site at issue, the Baltimore County

In my last post, “Real Estate Alphabet Soup: A Is for Acquisition” I introduced a new primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter B. B is for “buyer.” As part of any agreement for the transfer of real estate, there must be a willing seller and a willing buyer. A “bona fide” purchaser or “buyer” in the ordinary course of business is one who purchases the property, for valuable

Coming out of the 2019 legislative session, the Maryland General Assembly passed several new bills that will impact employers in Maryland. Three of the most significant ones are described here: 1.  “The Fight for Fifteen” – Minimum Wage is Going Up After voting to override Governor Larry Hogan’s veto, the Maryland legislature has successfully enacted a new law that eventually raises the minimum wage, statewide, to $15.00 per hour. Despite opposition from Governor Hogan, the Chamber of Commerce and other business organizations

Update: On April 25, 2019, Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia ordered that employers must submit expanded annual Employer Information Reports (“EEO-1 Reports”) with employee pay data by September 30, 2019. Ruling from the bench on Thursday morning, Judge Chutkan also ordered the EEOC to retroactively collect 2017 pay data by the same deadline or collect 2019 pay data with 2020 EEO-1 Reports. The EEOC must notify the Court of its choice by

GAO’s authority to hear protests involving other transaction agreements, or “OTAs,” has been in the headlines over the past year. GAO recently issued a decision holding that it will not review the award of non-procurement instruments issued under an agency’s OTA authority. MD Helicopters, Inc., B-417379, Apr. 4, 2019, 2019 WL 1505296. OTAs are legally-binding instruments, other than contracts, grants, or cooperative agreements, that generally are not subject to laws and regulations applicable to procurement contracts. DOD has authority under 10

Criminal investigations/arrests and I-9 audits surged in fiscal year 2018 following the U.S. Immigration and Customs Enforcement (ICE)’s announcement of its intent to increase its worksite enforcement efforts. A few FY2018 statistics document this surge: 6,848 worksite investigations were opened (compared to 1,691 in FY2017);   5,981 I-9 audits were initiated (compared to 1,360 in FY 2017);   779 criminal and 1,525 administrative worksite-related arrests occurred (compared to 139 and 172, respectively, in FY2017). Several high-profile enforcement actions have been reported by ICE, including: In April 2018,

This is the final post in our three-part series on state level government contract claims, and the accompanying dispute processes, in the DMV. This post discusses the claims and disputes process for government contracts in the Commonwealth of Virginia. Our previous posts discussed the claims and disputes processes in Maryland and D.C.   In keeping with the Commonwealth’s decentralized procurement approach, and unlike Maryland and D.C., the Commonwealth does not have a Board of Contract Appeals. Consequently, a contract claim appeal typically must go to

When I am asked what I do or what type of law I practice, my ten second “elevator speech” is to say that I primarily focus on every aspect of real estate law “from A to Z, from acquisition to zoning and everything in between,” among other areas. The general practice of real estate law, which is very broad, diverse and “covers a lot of ground,” if you’ll pardon the pun, really is an “alphabet soup” of sorts. So in

Maryland “public work” contractors and subcontractors better be checking their payroll, and then checking it twice, because Senate Bill (“SB”) 300 just came to town! Of course, this level of payroll diligence should already be the norm, but effective October 1, 2019, the stakes for certain public work contractors and subcontractors are just a little bit higher for those that fail to pay the appropriate Maryland prevailing wage rates. As a result, the legal process for their underpaid employees could move much

In 2018 Maryland started three programs to stimulate cybersecurity commerce in the state: (1) tax credits for Maryland small businesses to buy cybersecurity products and services from Maryland suppliers, (2) tax credits for investment in Maryland cybersecurity suppliers, and (3) grants for Maryland Government contractors to become compliant with Department of Defense (DoD) cybersecurity rules.   1. Tax credits for Maryland small businesses to buy cybersecurity products or services from Maryland companies. The cybersecurity spending tax credit, the “Buy Maryland Cybersecurity Tax

This is the second part of our three-part discussion of state government contract claims and dispute processes in D.C., Maryland, and Virginia (see part 1 discussing the claims and disputes process in Maryland). This second post focuses on contract claims and disputes in the District of Columbia.  As a takeaway from this series, there are noticeable differences between the claims processes in the three jurisdictions. For example, whereas in Maryland the strictly enforced 30-day notice requirement to start the claims process prompts

The U.S. Department of Labor, Office of Federal Contract Compliance Programs (“OFCCP”), which is responsible for the regulatory oversight of Federal Government contractors and subcontractors regarding Equal Employment Opportunity and non-discrimination, has just posted its latest Corporate Scheduling Announcement List (“CSAL”). If you are asking what is the Corporate Scheduling Announcement List, now is the time to get smart. On March 25, 2019, OFCCP posted the CSAL (which it does at least annually) to let contractors and subcontractors know that they likely

During the course of performance on a state level government contract, even the smoothest relationships between the contractor and its government customer can go awry. This can happen for a multitude of reasons—ambiguous contract terms, the parties’ discordant course of conduct, changes in personnel, misunderstandings, intervening circumstances, etc. Normally, the parties work out the issues as they arise, and move on. However, what happens when discussions and negotiations between the parties reach an impasse? How can an aggrieved contractor seek

Although most basic questions under the federal “Superfund” law have long since been addressed in detail by the federal EPA and the federal courts, Section 108 -- Superfund’s “financial assurance provision” -- is only now coming into legal focus as the U.S. Court of Appeals for the D.C. Circuit considers challenges to EPA’s regulatory decisions under that provision of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).   On Wednesday, March 13, 2019, the D.C. Circuit heard oral argument in

Yesterday, the Department of Labor (“DOL”) issued a much anticipated Notice of Proposed Rulemaking (“NPRM”) proposing to increase the salary threshold for the so-called “white collar” exemption from the minimum wage and overtime requirements of the Fair Labor Standards Act (“FLSA”) applicable to “bona fide” executive, administrative, professional, outside sales, and computer employees. The proposal would increase the salary level almost 50% - from $455 to $679 per week ($35,308 on an annualized basis) and would allow the inclusion of

On February 28, 2019, the Miles & Stockbridge Labor, Employment, Benefits & Immigration practice group presented its seventeenth annual Hot Topics in Employment Law seminar to an audience of nearly four hundred clients and friends from throughout Maryland and beyond. Topics covered included workplace sexual harassment a year into the #MeToo movement; the complex interplay of leave requirements under the Americans with Disabilities Act (ADA), Family Medical Leave Act (FMLA), the Maryland Sick and Safe Leave Act, and the top 10 labor

On January 15, 2019, the Section 809 Panel released the third and final volume of its report to Congress recommending changes to the defense procurement system. The latest volume makes the Panel’s most sweeping recommendations, including recommendations on reforming the bid protest process for defense procurements. This Alert describes the changes to bid protests envisioned by the Panel’s report, their potential impact, and prospects for adoption. What is the Section 809 Panel? The Section 809 Panel is named for the section of

As part of a series of recent Government publications concerning Department of Defense (DOD) cybersecurity efforts relating to contractors, on January 21, 2019, Ellen Lord, Undersecretary of Defense for Acquisition and Sustainment, issued a significant Memorandum entitled “Addressing Cybersecurity Oversight as Part of a Contractor’s Purchasing System Review” (the “Memo”). 1 As discussed below, the Memo should have important consequences for many DOD contractors. Background As most DOD contractors know, the DOD FAR Supplement (DFARS) cybersecurity clause at 252.204-7012 required compliance with the requirements

The U.S. Department of the Treasury’s Bureau of the Fiscal Service (the “Treasury”) announced on February 22, 2019 the suspension of sales of State and Local Government Series (SLGS) nonmarketable Treasury securities, effective 12:00 noon Eastern Time, March 1, 2019. A SLGS suspension, also known as closing the SLGS window, refers to when the Treasury no longer accepts new subscriptions for SLGS securities. The Treasury will reopen the SLGS window when Congress enacts, and the President signs, legislation suspending or raising

2018 was a busy year in terms of changes to the statutes and regulations that govern small business and socioeconomic set-aside procurement activities for small and large firms alike. This Miles Alert discusses two of the highlights: (1) The Small Business Runway Extension Act of 2018 amending the Small Business Act to extend the period of measurement used to determine whether a business is considered “small,” and (2) the FAR Council’s long-awaited issuance of a proposed rule to reconcile the FAR’s Limitation on the

There have been notable developments in the past few months concerning DOD’s cybersecurity clause, DFARS 252.204-7012, and related DOD cybersecurity efforts. This Miles Ahead Alert summarizes those developments, and provides thoughts about the future. The New DOD Task Force On October 24, 2018, citing the loss of classified and controlled unclassified information (CUI) that is putting DOD’s investments at risk and eroding the lethality and survivability of our forces, Secretary of Defense Mattis issued a memorandum establishing the “Protecting Critical Technology Task Force.” The memo indicates that the

On January 31, 2019, President Trump signed an “Executive Order on Strengthening Buy-American Preferences for Infrastructure Projects” (the “Order”), here. The Order is the second executive order issued by President Trump that aims to strengthen existing domestic preference acquisition policies within the United States – this time focusing on infrastructure projects and broadening the scope of a previous Buy American executive order beyond federal procurements and grants. Background and Requirements of the Executive Order President Trump issued the previous executive order (“EO 13788”)

Note to the Reader—on February 1, the EEOC did, if fact, extend the reporting deadline for the 2018 EEO-1 Report until May 31, 2019.  The EEOC will also provide updated submission instructions in the near future.  The EEOC’s notice is available here. If you are a Government prime contractor or subcontractor working under an agreement worth at least $50,000, and you have at least 50 employees (part-time employees included), then March 31, 2019 should mean something to you. March 31 is the day

On January 30, 2019, the Department of Homeland Security announced a final rule amending regulations governing H-1B cap-subject petitions. The final rule reverses the order by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, and it also introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The reverse selection order will apply to petitions filed for the fiscal year (FY) 2020 H-1B cap season (starting on

With the partial shutdown of the federal government entering its nineteenth day (as of today), and with reports indicating there are no signs of an imminent resolution, employers should be aware of the status of federal entities whose activities may impact their workforces and employment law-related issues. Here is a quick rundown of the status of federal agencies that may be relevant to you: 1)    U.S. Department of Labor (DOL) Fully staffed and operational during the shutdown. 2)    National Labor Relations Board (NLRB) Fully staffed

On Monday, December 17, 2018, President Trump signed into law the Small Business Runway Extension Act of 2018. To determine whether a federal contractor qualifies as a small business, the yardstick will now be the average of five years’ gross receipts, instead of the previous average of three years. The small business community generally welcomes the change, because many contractors will now retain small business status for longer, giving them more time to mature and become competitive in the federal marketplace. Our previous