MSLaw Blog

Maryland lawmakers failed to pass legislation during the recent General Assembly session that would have implemented sweeping changes to the use in Maryland of polyfluoroalkyl substances (PFAS), also known “forever chemicals.” House Bill 1022, which was withdrawn before the end of the legislative session, would have, among other measures: Expanded product bans for specified consumer products that contain intentionally added PFAS chemicals Required manufacturers to register their products that contain intentionally added PFAS chemicals with the Maryland Department of the Environment by Jan.

Although qui tam relators filed a record 1,297 complaints in 2025, they face an uncertain future. Multiple circuit courts of appeal are evaluating whether qui tam provisions of the False Claims Act (FCA) can withstand constitutional scrutiny. Arguments before the 11th U.S. Circuit Court of Appeals illustrate the issues also pending in the 3rd and 5th circuits on a legal practice William Shakespeare experienced personally.   Overview of the Qui Tam Provisions The qui tam provisions of the FCA authorize private

Senior leaders from across the health care industry gathered at The Center Club in Baltimore for last week’s Hot Topics in Health Care program and reception, presented by the Miles & Stockbridge Health Care Group. The event brought together executives from hospitals, physician networks, insurers, digital health companies, regulatory bodies, financial institutions and advisory firms, and featured two fireside chats on key issues reshaping Maryland’s health care landscape, with networking receptions before and after. Molly Ferraioli moderated the first fireside chat,

Two states on opposite coasts are reshaping the rules governing noncompete agreements in their jurisdictions. Virginia has amended its law to prohibit enforcement of noncompetes against employees who are terminated without cause in the absence of certain severance benefits, while Washington has gone further by enacting a near-total ban on noncompete agreements for all workers. Together, these laws reflect a broader national trend of restricting noncompetes and may call for businesses with employees in either state to review their current agreements

Freddie Mac published a Guide Bulletin on April 21 that summarizes recent changes to the Guide and rolls out a new Conventional Small loan product. These changes impact property inspection requirements, property management requirements and title requirements. Here’s what you need to know. The SBL Program is being folded into Freddie Mac’s conventional arm through a new product, “Conventional-Small.” This program aims to align the smaller transactions with standard Freddie Mac documentation but continues to allow for some streamlined processing that was

Administrator Lee Zeldin released a pre-publication notice April 8 advising that the Environmental Protection Agency is again delaying the start date for reporting and recordkeeping requirements under the Perfluoroalkyl and Polyfluoroalkyl (PFAS) Reporting and Recordkeeping Rule. The PFAS Reporting Rule is an all-encompassing new regulation that applies to any entity that has manufactured or imported PFAS for a commercial purpose at any time between 2011-2022. Utilities, manufacturers, wholesale traders and waste management and remediation services are most likely to be affected,

Following the U.S. Supreme Court’s ruling striking down most of the tariffs imposed by President Donald Trump under International Emergency Economic Powers Act of 1977 (IEEPA), and the Court of International Trade declaration that "every single cent of IEEPA duties that were imposed must be returned,” the question for U.S. Customs and Border Protection (CBP) — and importers — has been how to refund more than $166 billion in IEEPA tariffs collected over 53 million entries filed by over 330,000

President Donald Trump signed an Executive Order (EO) on March 26, “Addressing DEI Discrimination by Federal Contractors,” reinforcing the Trump Administration’s stance on DEI programs and escalating the related restrictions on what the Administration considers “racially discriminatory DEI activities.” The Executive Order, which took effect immediately, mandates that all federal government prime contracts, “contract-like” instruments and subcontracts, including lower-tier subcontracts, include a specific contract clause, requiring contractors to comply with the clause or risk potential False Claims Act (FCA) liability. Contractors

The rapid expansion and evolution of state and local property tax exemptions has become a critical tool in affordable and workforce housing finance. In many jurisdictions, these exemptions can materially improve project feasibility, enhance debt service coverage and, in some cases, function as a partial substitute for traditional subsidy sources. At the same time, these programs are highly jurisdiction-specific and frequently require careful structuring, ranging from nonprofit ownership overlays to public agency participation, ground lease arrangements and long-term regulatory agreements. As a

Government contractors generally look for stable and predictable partnerships to best serve their government customers. Contractors must establish and maintain well-structured compliance systems and frameworks to ensure they conform to federal statutes, regulations and guidance. But the only constant in government contracting is, not surprisingly, change. Sometimes the change is minor and requires small adjustments; other times the change is more like a punch to the throat. The Department of Defense’s recent action concerning artificial intelligence company Anthropic and its AI

On March 19, 2026, the 5th U.S. Circuit Court of Appeals denied the Federal Trade Commission’s (FTC’s) motion for a stay pending appeal in the challenge to the agency’s sweeping overhaul of the Hart-Scott-Rodino Act (HSR) premerger notification filing requirements. The decision means that a lower-court order vacating the new rules is now effective immediately, and parties may revert to the older, less-burdensome HSR form that was in place before the changes took effect in February 2025. Background The FTC’s overhaul represented

Despite the numerous pivots in the Department of Justice's focus over the past year, one priority remains constant: identifying “waste, fraud, and abuse, including health care fraud and federal program and procurement fraud that harm the public fisc.” Indeed, the Criminal Division identified this as its No. 1 priority last year. Subsequently, DOJ announced the formation of a DOJ-HHS False Claims Act Working Group signaling a coordinated, cross-agency approach with the Department of Health and Human Services (HHS) to rooting

Many corporations have changed their state of incorporation to move away from Delaware or are considering doing so. There are many reasons to consider alternative jurisdictions to Delaware but most often cited by public companies is the Delaware Chancery Court’s receptivity to claims asserted by plaintiff law firms on behalf of stockholders. Prolonged litigation, often frivolous, and expensive settlements add time and expense to corporate transactions. Some states have taken affirmative steps to create a corporate regime that will attract entities

Doing business with the federal government historically has been competitive but relatively stable. Now, while the competition may remain, stability and certainty have all but disappeared. The uncertainty began with the flurry of Executive Orders issued during the first year of the second Trump Administration, including the kickoff of the “Revolutionary” Federal Acquisition Regulation (FAR) Overhaul (RFO). The RFO represents an ambitious effort to fundamentally overhaul the FAR. Whether the RFO is necessary or prudent is a matter on which reasonable

Miles and Stockbridge’s Labor, Employment, Benefits & Immigration Practice Group presented its 24th annual Hot Topics in Employment Law Seminar last week to business executives, human resources professionals and in-house counsel. Topics included navigating the use of AI in the workplace, updates from the National Labor Relations Board, immigration policy shifts, DEI policy enforcement and the importance of properly drafted employment documents. Here are highlights from the three interactive sessions. Adjusting to an AI-influenced Workplace AI continues to be a driving issue in

Government contractors and grant recipients should heed the warning bell represented by the record haul of recoveries in 2025 under the federal False Claims Act (FCA). Although more than $6.8 billion was collected, according to the Department of Justice (DOJ), more troubling is the record number of 1,297 qui tam suits filed. This growth of whistleblower lawsuits comes just as DOJ has voiced its intent to use the FCA to combat diversity, equity and inclusion (DEI) initiatives. DOJ Investigations The DOJ is

On Dec. 18, 2025, the Department of Defense (DoD) issued deviations to over half of the Defense Federal Acquisition Regulation Supplement (DFARS) Parts, all of which became effective Feb. 1, 2026. Two days later, DoD issued a deviation for DFARS Part 204, which became effective Feb. 17. These deviations reorganize and streamline some of the DFARS regulations and contract clauses that define contractors’ cybersecurity requirements. Technically, they are “temporary” exceptions to the DFARS that were issued on an emergency basis in

The U.S. Supreme Court on Friday struck down most of the tariffs imposed by President Donald Trump under the International Emergency Economic Powers Act of 1977 (IEEPA). But questions remain for importers and others affected by the IEEPA tariffs: How and when will importers receive refunds of IEEPA duties already paid? What will be the impact of the new tariffs announced Friday by the Trump administration? What is the status of the trade agreements negotiated with certain trading partners in response to the

Many people use AI tools in their daily lives without a second thought. In fact, many of us have ChatGPT aiding our searches on our personal phones. But a federal judge in New York recently found during a criminal trial that conversations with AI tools were not protected by attorney-client privilege. This decision is believed to be a first-of-its-kind ruling that could have significant ramifications for potential waivers of attorney-client privilege. According to prosecutors’ filings, the defendant, charged with securities and

Between now and when its term ends in June, the United States Supreme Court is expected to decide whether global “reciprocal” tariffs imposed by President Donald Trump under the International Emergency Economic Powers Act of 1977 (IEEPA) are unlawful. The much-anticipated decision could come at any time and, no matter the outcome, likely will significantly change the U.S. tariff landscape in both the short- and long-term. Here’s what importers need to know as they wait. How We Got Here The question before

A federal district court judge in Texas has invalidated the Federal Trade Commission’s (FTC’s) revised premerger notification requirements under the Hart-Scott-Rodino Act (HSR), representing a potentially significant shift in the premerger landscape. Background On February 12, 2026, U.S. District Judge Jeremy D. Kernodle of the Eastern District of Texas granted summary judgment to the U.S. Chamber of Commerce and allied business groups, throwing out the FTC’s overhaul of the HSR premerger reporting requirements. The ruling marks the first successful challenge to the

(A version of this blog post has been previously published with the possibility of a federal government shutdown. After weathering the longest government shutdown in U.S. history last fall, government contractors now face an imminent partial shutdown Jan. 31. Full-year appropriations for the Departments of Agriculture, Veterans Affairs, Justice, Energy, Interior and Environment, as well as the legislative branch, military construction, science (including NASA and the National Science Foundation) and water development have already passed. However, appropriations bills for the Departments of Labor, Homeland

Many employers issue paychecks biweekly, which results in 26 pay periods per year. This year, 2026 employers will encounter an adjustment where a biweekly pay schedule may result in 27 pay periods.   Employers that started the year with a paycheck on Friday, Jan. 2, may intend to pay the final paycheck of 2026 on Thursday, Dec. 31, given that Friday, Jan. 1, 2027, is a holiday. If an employer follows this schedule, then they will have 27 pay periods this year

The State of Maryland processed nearly two million unemployment claims during the COVID-19 pandemic. A large number of those claims were fraudulent, with the full extent of the fraud yet to be understood. A significant amount of the fraud involved identity theft, where fraudsters applied for benefits in the names of individuals whose personal information had been compromised. During the pandemic, many employers received calls from anxious employees who had received notices that unemployment benefits had been applied for or awarded

The Federal Trade Commission (FTC) announced Jan. 14 annual revisions to the applicable thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act). These updates will apply to all transactions closing on or after the effective date of the notice, which will be 30 days after its publication in the Federal Register. The new minimum size-of-transaction threshold has been adjusted upward from $126.4 million to $133.9 million. Under the HSR Act, the parties to any proposed acquisition

It’s that time of year to celebrate all our hard work over the last 12 months! As 2025 winds down, however, employers should take steps to ensure they aren’t carrying any potential liability into 2026 from those exciting and fun office holiday parties. Employers should have their policies in place about the overconsumption of alcohol and harassment. Everyone should be informed and educated, so that everyone can enjoy the holiday season. First, some general recommendations about holiday parties: Be inclusive of all

W.C. Fields once said that there comes a time in everyone’s life when they “must take the bull by the tail and face the situation.” For contractors in the Defense Industrial Base (DIB), that time has apparently come when, at long last, the Cybersecurity Maturity Model Certification (CMMC) Program began its phased rollout Nov. 10. As previously discussed, Phase 1 sees the incorporation of the new DFARS CMMC clause into all solicitations involving the handling of Federally Controlled Information (FCI) or

Beginning in April, state and local governments will be required to comply with a new final rule published by the U.S. Department of Justice updating regulations for Title II of the Americans with Disabilities Act. The Rule establishes specific requirements, including technical standards, for all digital services provided by public entities, such as websites, mobile applications, online learning platforms, registration systems and financial aid information to ensure that such services are accessible to people with disabilities. Title II of the ADA

California Gov. Gavin Newsom recently signed into law sweeping legislation designed to restrict employers and training providers from requiring workers to repay costs or fees when they leave employment, so-called “training repayment agreement provisions” (TRAPs). The law, set to take effect Jan. 1[1], applies broadly to any person in California permitted to work for or on behalf of an employer or to participate in any other work relationship, job training program or skills training program, including employees and prospective employees. Overview The

The Department of Commerce’s Bureau of Industry and Security (BIS) has issued an interim final rule (IFR) that extends end-user restrictions to entities owned 50% or more by parties identified on the Entity List and the Military End-User (MEU) List. This new “Affiliates Rule” substantially expands the reach of Entity List and MEU List restrictions by prohibiting unlicensed exports to a large number of new unlisted companies based on their ownership chains, particularly the subsidiaries of listed Chinese entities. It further

The Federal Acquisition Regulatory Council (FAR Council) recently released the rewrite of FAR Part 19, a notoriously complex set of regulations that covers the policies, procedures and programs designed to maximize small business participation in federal contracting. This rewrite is intended to enhance the intuitiveness and ease of applying regulations to small businesses in the federal procurement process. The FAR Council also issued a Practitioner Album, which summarizes proposed changes to the regulations and provides helpful guidance and resources for

The U.S. Departments of Commerce and the Treasury took steps this September to further ease restrictions on Syria following the fall of the Assad regime. In early September, the Commerce Department’s Bureau of Industry and Security (BIS) revised the Export Administration Regulations (EAR) to relax certain export controls on Syria. On September 25, the Treasury Department’s Office of Foreign Assets Control (OFAC) renamed the “Syria-Related Sanctions Regulations” the “Promoting Accountability for Assad and Regional Stabilization Sanctions Regulations,” further clarifying the

President Donald Trump signed a proclamation last week, “Restriction on Entry of Certain Nonimmigrant Workers,” purportedly to reduce the use and abuses of the H-1B non-immigrant classification and adjust the prevailing wage threshold in order to prioritize petitions for highly compensated and highly skilled H-1B workers. While the situation is fluid, here is what we know: The proclamation became effective Sept. 21. The Department of State, U.S. Customs and Border Protection, United States Citizenship and Immigration Services and the White House have

In welcome news for the industry and Miles & Stockbridge’s lender and developer clients, on September 23, 2025, the Federal Housing Administration’s (FHA) Office of Multifamily Housing Programs published a Federal Register final notice that reduces Multifamily Mortgage Insurance Premiums (MIPs) to 0.25% across all FHA Multifamily programs. This Notice does not apply to HUD’s healthcare facility financing programs. Background/History President Donald Trump signed a presidential memorandum Jan. 20, “Delivering Emergency Price Relief for American Families and Defeating the Cost-Of-Living Crisis,” and an

On September 10, 2025, the Department of Defense (DoD) issued a Final Rule officially incorporating the Cybersecurity Maturity Model Certification (CMMC) Program into the Defense Federal Acquisition Regulation Supplement (DFARS). The Final Rule establishes the processes for integrating the CMMC requirements into DoD Contracts and Subcontracts and creates two new contract clauses that make CMMC compliance a condition for award. The Final Rule is effective November 10, 2025, which gives entities a brief window of time to familiarize themselves with

(A version of this blog post has been previously published with the possibility of a federal government shutdown. Federal funding is set to expire Sept. 30 if lawmakers do not reach a deal.) Shutdowns are inevitably disruptive for federal contractors, but the impact will vary depending on whether the contract is already funded, whether the work is considered “essential,” and whether the contractor requires access to federal facilities or approvals from non-essential federal employees, among other considerations. Contractors can minimize the effect

Business executives, human resources professionals and in-house counsel attended last week’s D.C. Hot Topics in Employment Law Seminar, presented by Miles & Stockbridge’s Labor, Employment, Benefits & Immigration Practice Group. The event was an encore and updated presentation of the practice group’s Hot Topics in Employment Law Seminar held annually in February in Baltimore. Topics included the use of AI in workplace and performance management; myriad  employment issues raised on a day-to-day basis with human resources professionals, including disability and religious accommodations and

The Court of Appeals for the Federal Circuit has resolved once and for all the question of who can file a bid protest before the Court of Federal Claims (COFC). In Percipient.ai, Inc. v. United States, its Aug. 28 precedential decision, the court – sitting en banc – held that only actual or prospective offerors qualify as “interested parties” under the Tucker Act. As we previously discussed, a panel of the Federal Circuit ruled in June 2024 that Percipient.ai Inc. had standing to

We previously discussed how the work of the Trump administration’s Department of Government Efficiency (DOGE) is making the decision to protest more critical than ever for offerors, particularly as the end of fiscal year rush to award contracts begins to play out. For awardees, the decision to intervene is just as critically important. Every contract won is becoming more valuable in relation to what, for many contractors impacted by the DOGE effect, is a waning universe of contracting opportunities. By intervening,

By now, anyone who has had their finger on the pulse of government contracting is keenly aware of the impact the Trump administration’s Department of Government Efficiency (DOGE) has had on acquisitions. As of this writing, DOGE claims the amount of dollars saved because of the 13,000-plus contracts terminated to be greater than $58 billion. And while that figure has been debated and, even if accurate, would represent only a small fraction of the hundreds of billions of dollars the

Freddie Mac published a Guide Bulletin on Aug. 26 that imposes new requirements on mortgages originated on or after Oct. 1, 2025. These requirements should be familiar to those who also originate Fannie Mae loans. Freddie Mac now requires that Optigo Lenders deliver the following items in the full delivery package: For acquisitions loans:Copies of any property-seller-side settlement statements For all loans:Copies of all documents that evidence the chain of title for the 36-month period preceding the mortgage origination; A copy of the

The U.S. Supreme Court agreed last week to permit the National Institutes of Health (NIH) to terminate hundreds of grants related to diversity, equity and inclusion (DEI) initiatives worth approximately $800 million. The order was issued in response to the government’s emergency request to stay a lower court injunction barring the termination of the grants. The Supreme Court held that suits challenging these terminations must be brought before the Court of Federal Claims (CFC) and that, conversely, the federal district

This is part of a series discussing state-level bid protests in the DMV. Click here to read about the process in D.C. and click here to read about the process in Virginia. Protest procedures in Maryland are less centralized than D.C. but more centralized than Virginia. Generally Relevant Law The majority of relevant authorities in Maryland are found in Division II of the State Finance and Procurement Article in the Maryland Code (SF&P) and Title 21 of the Maryland Code of Regulations (COMAR). Authority to

U.S. Attorney General Pam Bondi recently issued new guidance aimed at clarifying the current administration’s stance on the permissibility of diversity, equity and inclusion policies and procedures under federal anti-discrimination laws such as Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments Act of 1972 – particularly among entities that receive federal funding, such as schools, universities, state and local governments, health care providers, nonprofits and other private employers. In its guidance, the Department

On Aug. 6, Colorado became the second state to enact the Uniform Antitrust Premerger Notification Act (APNA), following Washington earlier this year. Under the APNA, a person making a Hart-Scott-Rodino (HSR) filing on or after the effective date of the act must provide a copy of its federal submission to that state’s attorney general if the notified transaction has a sufficient nexus to the state. Here are some key of the highlights of Colorado’s version of the APNA. Who Must File An HSR-reporting

The Centers for Medicare and Medicaid Services (CMS) published its proposed 2026 Medicare Physician Fee Schedule on July 14. The agency’s announcement emphasized “significantly cutting spending waste, enhancing quality measures, and improving chronic disease management for people with Medicare.” While the fee schedule is still under review, and CMS is soliciting suggestions and public comment, health care providers should familiarize themselves with what CMS has proposed. Here are some key highlights. Enhancing Payment & Quality Measures: Revised Physician Payment Rates & Telehealth

This is part of a series discussing state-level bid protests in the DMV. Click here to read about the process in D.C. and click here to read about the process in Maryland. In the Commonwealth of Virginia, decentralization is the rule. Virginia state law generally vests procurement authority in the individual agency or locality, where a protest can move very quickly from submission to the awarding procurement authority onto appeal at the circuit court. With these principles in mind, here is a

On July 8, 2025, President Trump issued an order to unwind the acquisition of Jupiter Systems, Inc., a U.S. company, by Hong Kong-based Suirui International Co., Ltd., a subsidiary of China’s Suirui Group (collectively Suirui), five years after the transaction closed. According to the Treasury Department’s July 11 statement, the Committee on Foreign Investment in the United States (CFIUS) had “identified a national security risk arising from Suirui’s ownership of Jupiter relating to the potential compromise of Jupiter’s products used

Fannie Mae recently announced updates to its Multifamily Loan Documents with Lender Letter (25-04). Since that time, Fannie Mae released a revised Lender Letter (25-04R) that changed the mandatory date for use of the loan documents from July 28, 2025 to August 4, 2025. The updates may be used immediately and must be used for: (i) all Mortgage Loans (other than forward conversions), with a confirmed Commitment Date on or after August 4, 2025, and (ii) forward conversions occurring on

On April 4, Washington became the first state to enact the Uniform Antitrust Premerger Notification Act (APNA). Under the APNA, a person making a Hart-Scott-Rodino (HSR) filing on or after July 27, 2025 must provide a copy of its federal submission to the Washington attorney general if the notified transaction has a sufficient nexus to the state. Here are some key takeaways as you plan upcoming transactions. Who Must File An HSR-reporting party must contemporaneously furnish a copy of its HSR filing to

The Department of Justice (DOJ) recently issued its annual Health Care Fraud Takedown results, announcing a record-breaking 324 defendants, including 96 doctors and licensed professionals, as well as more than $14.6 billion in intended loss. While the large figures grab attention, an analysis of the DOJ’s statements offers important insight for American health care professionals and companies: Despite various executive orders and policy changes with the new administration, the DOJ and other government agencies continue to focus significant resources on

This is part of a series discussing state-level bid protests in the DMV. Click here to read about the process in Virginia and click here to read about the process in Maryland. For a contractor who just expended significant time and money to bid on a DMV state-level government contract, only to watch the award go elsewhere, disappointment is understandable. But is this the end? What if the contractor believes that the state agency got it wrong? Can the contractor do anything? If so,

Noncompete provisions for most health care professionals will be banned or restricted in Maryland as of July 1. Last year, the Maryland General Assembly passed House Bill 1388, significantly impacting the enforceability of noncompete provisions for health care professionals. A noncompete provision is a post-employment restrictive covenant that prohibits an employee from obtaining subsequent employment, including self-employment, in the same or similar business or trade as their former employer. Noncompete provisions are often limited in geographic scope and time. Under

Maryland Gov. Wes Moore recently signed the $67 billion state budget for 2026 (HB 352) that will make significant changes to the state’s tax system. Among other changes, the budget bill notably establishes a new tax on IT services; imposes a surtax on capital gains; and increases the sales and use tax rate on cannabis. Here is how these key tax provisions might impact individuals, businesses and consumers. IT Services Tax (HB 352, Section 9, amending Md. Code Ann., Tax-Gen. § 11-104) The bill establishes

The Maryland Attorney General’s Office recently announced a series of fair housing enforcement actions, resulting in several major settlements with housing providers across the state. These actions address issues related to source-of-income discrimination, tenant screening practices and minimum-income requirements for voucher holders. Relevant Federal and State Law Unlike federal law, Maryland law includes “source of income” as a protected class for discrimination. Under Maryland’s HOME Act, passed in 2020, landlords cannot discriminate against individuals based on their source of income and

A three-judge panel of the United States Court of International Trade late Wednesday afternoon struck down the reciprocal tariffs imposed last month by the Trump administration. The court, in a per curiam decision, held that the powers delegated to the President under the International Emergency Economic Powers Act of 1977 (IEEPA) do not confer the “unbounded authority” to “impose unlimited tariffs on goods from nearly every country in the world.” V.O.S. Selections, Inc., et al. v. United States, No. 25-00066

Less than two weeks after President Donald Trump announced that his administration would lift U.S. sanctions on Syria, the U.S. Departments of the Treasury and State took significant first steps to provide the anticipated sanctions relief. On May 23, the Treasury Department’s Office of Foreign Assets Control (OFAC) issued General License 25 (GL 25), authorizing a broad range of transactions that had previously been prohibited under the Syrian Sanctions Regulations. In parallel, the State Department exercised its authority under the Caesar

The Maryland General Assembly’s 2025 legislative session concluded with a few impactful health care bills. The two bills below, signed into law by Gov. Wes Moore on Tuesday, represent significant steps in improving health care accessibility and affordability for Maryland residents. Lowering Prescription Drug Costs for All Marylanders Now Act This bill increases the authority of Maryland’s Prescription Drug Affordability Board. Created by the General Assembly in 2019, the board was the nation’s first independent body with authority to review affordability

Washington Gov. Bob Ferguson on May 13 signed the Securing Timely Notification and Benefits for Laid-Off Employees Act into law. Effective July 27, this statute mirrors the federal Worker Adjustment and Retraining Notification (WARN) Act, establishing notice requirements for certain business closures and mass layoffs in Washington. Here’s what employers need to know. Who’s Covered? Employers with 50 or more employees in Washington, excluding part-time workers – but does not extend to state and local governments or political subdivisions. All Washington employees, including part-time

President Donald Trump announced Tuesday during his trip to the Middle East that his administration would lift U.S. sanctions on Syria. Since the shock collapse of Bashar al-Assad’s regime in Syria late last year, the United States and broader international community have debated whether sanctions on Syria should be removed. After years of comprehensive restrictions, Syria’s people and economy could benefit dramatically from sanctions relief. If the administration follows through with Trump’s announcement, U.S. and international exporters, financial institutions and other

Continuing a focus on knowing your clients and fraud, Fannie Mae released last week Title and Closing Requirements for Multifamily Mortgage Loans Form 4650, a comprehensive update that will impact how you set up future closings. The requirements detailed in the new Form 4650 apply to all new loans under application on or after May 8, 2025. What’s New Approved Title Insurance Underwriter – Fannie Mae will be releasing an Approved Title Insurance Underwriter Schedule naming the Title Insurance Underwriters from which

The Trump administration continues to bring with it changes in both the staff and politically appointed positions within the U.S. Consumer Product Safety Commission (CPSC). On Thursday and Friday, the three Democratic commissioners of the CPSC were fired, effective immediately. The fired commissioners – Mary Boyle, Richard Trumka Jr. and former CPSC Chair Alex Hoehn-Saric –  have already stated their intent to challenge their dismissals in court. Click here to read a statement from former CPSC Chair Alex Hoehn-Saric that summarizes

One now-shuttered digital media startup learned a hard lesson about the importance of complying with the requirements of the federal Worker Adjustment and Retraining Notification Act and its New York state-equivalent. JAF Communications Inc., operating as The Messenger, agreed to pay $4.5 million to class members for failing to provide advance notice of their mass layoff before the company shut down Jan. 31, 2024. The parties’ joint motion for settlement approval is pending in the U.S. District Court in New York. The

Some early actions by the Trump administration have led corporate legal departments to question the extent to which they need to invest in ethics and compliance at this time, based on a perceived reduction in enforcement risk: A presidential action issued in February paused enforcement of the Foreign Corrupt Practices Act, stating “overexpansive and unpredictable FCPA enforcement against American citizens and businesses . . . for routine business practices in other nations . . . wastes limited prosecutorial resources that could

Fannie Mae published its Preferred Equity Guide Update (25-06) and its Preferred Equity Checklist (Form 6441) in mid-April. Although unpublished iterations have been circulating for the past two years, lenders and law firms have interpreted the requirements in varying ways, at times leading to different outcomes for very similar equity structures. The Krooth & Altman Team at Miles & Stockbridge welcomes this newly published Checklist, as we expect it to bring more clarity and consistency to the treatment of preferred equity structures

Yogi Berra once said, “The future ain’t what it used to be.” Those who have spent a career in federal procurement have seen many cycles of well-intentioned procurement reform instead create a system that is more complex, arcane and inefficient with each iteration.  Any long-serving procurement professional has a bookshelf of Federal Acquisition Regulation (FAR) and Defense Federal Acquisition Regulation Supplement (DFARS) volumes that visibly get thicker with each issue; the current copies are more than twice as thick as the

President Donald Trump issued an executive order (EO) earlier this month announcing sweeping “reciprocal” tariffs on imports from countries across the world. One country missing from the EO’s increased tariffs was Russia, despite its ongoing trade surplus with the United States. In response to the scrutiny this has drawn, the White House offered existing U.S. sanctions on Russia as the basis for its exclusion. While the EO’s more substantial “reciprocal” tariffs are currently suspended (except for China), these discussions raise the

In a few short weeks, President Donald Trump has issued several executive orders (EOs) that, once implemented, will significantly alter federal procurement. We previously reviewed the EO directing the modernization of defense acquisition processes. Last week, the president issued another EO, “Ensuring Commercial, Cost-Effective Solutions in Federal Contracts,” to fulfill the administration’s goal of eliminating unnecessary and imprudent expenditures of taxpayer dollars by focusing on commercial products and services that provide better, more cost-effective solutions to taxpayers. This EO directs federal

Executives, general counsel and administrators of hospitals, physician groups, long-term care communities and other health care providers attended last week’s Hot Topics in Health Care Law seminar, presented by the Miles & Stockbridge Health Care Group. The event featured a panel discussion, moderated by Lisa Keenan and Molly Ferraioli, with three industry experts offering their thoughts on the rapidly evolving landscape of health care law: Cathy Hamel, president of Gilchrist Hospice, the largest provider of serious illness, hospice and palliative care

President Donald Trump signed an executive order April 9, “Modernizing Defense Acquisitions and Spurring Innovation in the Defense Industrial Base,” to reform the United States’ “antiquated defense acquisition processes.” The EO is intended to rectify “years of misplaced priorities and poor management” by improving the speed, flexibility and execution of defense acquisitions and eliminate perceived waste and inefficiency. The plan also would modernize the duties of the defense acquisition workforce and incentivize and reward personnel for risk-taking and innovation. Given the

Three years after Maryland’s Paid Family and Medical Leave Insurance Program (FAMLI) was established by the Time to Care Act of 2022 (TCA), the General Assembly on Monday passed House Bill 102, which delays certain dates related to annual reporting and the implementation of the program. Gov. Wes Moore is expected to sign the bill into law in the coming weeks. The bill would delay when employers and employees must begin submitting contributions for the funding of the program and when

The short-term spending bill President Donald Trump signed into law last month included the extension of several telehealth waivers by entering a new termination date of Sept. 30 into the existing law. These waivers, called “flexibilities” by Congress, were first created in response to the COVID-19 public health emergency to allow Medicare beneficiaries to receive care by telehealth, mitigating the risk of the virus spreading. These flexibilities have been temporarily extended since the end of the federal emergency in 2023.

“Build-to-rent” means what it sounds like: A builder constructs single-family homes specifically designed for renters. Also known as “build-for-rent,” these communities began in Phoenix during the Great Recession and have since spread across the Sunbelt. There were 83,000 build-to-rent construction starts last year, accounting for more than 8% of all single-family construction starts. Analysts believe demand will remain strong because the supply of for-sale homes remains tight due to high home prices and mortgage rates. Developers, investors, lenders and borrowers in

While there have been previous efforts to reduce the federal government’s real estate footprint, the scope and speed with which the Trump administration proposes to reduce that footprint is unprecedented. Acting through the U.S. General Services Administration (GSA), the administration is targeting a 50% reduction of leased office space. It has instructed the GSA to terminate GSA leases, which has been a source of confusion for landlords with tenants under GSA leases. Although government contracts generally permit federal agencies to terminate

Companies have always faced the potential for a visit from an agent from U.S. Immigration and Customs Enforcement (ICE) but President Donald Trump’s heightened focus on immigration increases the likelihood of that reality. Over the past month, the Trump administration has issued new policies that alter previous guidelines for how ICE agents may act in the line of duty. Of course, a visit from an ICE agent, like contact with any law enforcement officer, may prompt nervous or inappropriate reactions that

Freddie Mac published Thursday an update to the Freddie Mac Guide, which included a discussion of various underwriting, fraud detection and loan document changes. Here's what you need to know. Loan Documents/Legal Matters Most of the changes to the loan documents, including Loan Agreement and Guaranty, are minor and ministerial in nature but widespread. The biggest change is to incorporate the provisions of splitting the note riders to the Loan Agreement and Guaranty directly into the bodies of the documents. This allows Freddie

The Mortgage Bankers Association hosted its annual Commercial Multifamily Finance Convention and Expo (CREF) in San Diego last week, bringing together industry leaders, experts and professionals. Members of the Krooth & Altman GSE and HUD Team at Miles & Stockbridge headed west to network, exchange insights and engage in dynamic sessions that tackled the fast-changing economic, regulatory and political landscape. Below are some of the key takeaways from the event that are important to know. Updated Guidance Coming from Fannie Mae, Freddie Mac Fannie

The acting general counsel for the National Labor Relations Board on Friday rescinded numerous general counsel memoranda on key Biden-era policies and priorities issued by his predecessor. William Cowan’s memorandum indicates the first significant shift in labor policy priorities under the Trump Administration, previewing fewer restrictions on employers in the next four years. Although GC memos are non-binding, they provide enforcement guidance for NLRB Regional Offices and inform unions and employers of recent developments in board law and policy. New Priorities Impact

On Feb. 5, National Girls & Women in Sports Day, President Donald Trump signed an executive order titled “Keeping Men Out of Women’s Sports” declaring “it is the policy of the United States to oppose male competitive participation in women’s sports more broadly, as a matter of safety, fairness, dignity, and truth.” The directive is aimed at prohibiting transgender women and girls from competing in women’s sports. The order directs the Education Department to carry out the policy by changing its

President Donald Trump last week removed National Labor Relations Board member Gwynne A. Wilcox and terminated the board’s general counsel, Jennifer Abruzzo. The president then fired acting General Counsel Jessica Rutter on Feb. 1, replacing her with William Cowan. Although the termination of the general counsel was expected and consistent with actions taken by prior presidents, Wilcox’s removal was the first time a president has removed a sitting board member and potentially sets up a legal battle over the president’s

President Donald Trump signed a number of executive orders in his first week in office with broad implications for federal agencies, contractors and, potentially, private employers. Executive orders only apply to federal agencies and their employees and do not impose requirements on private employers. But private employers should be aware of these issues and prepare for potential impacts on their organizations. Order on Gender Identity and Expression Trump signed an executive order Jan. 20, titled “Defending Women From Gender Ideology Extremism and

The Equal Employment Opportunity Commission (EEOC) recently issued guidance to assist health care providers in addressing their patients’ needs for accommodation under the Pregnant Workers Fairness Act (PWFA). The PWFA requires employers with 15 or more employees to provide reasonable accommodations for employees with known limitations related to or arising out of pregnancy, childbirth and related medical conditions, unless the accommodation will cause the employer an undue hardship. The EEOC’s guidance is intended to aid health care providers in understanding

Employers are breathing a sigh of relief after the U.S. Supreme Court last week unanimously confirmed the application of a “preponderance of the evidence” standard to an employer’s burden of proof when it seeks to establish that an employee is exempt from the minimum wage and overtime pay provisions of the Fair Labor Standards Act (FLSA). How Did We Get Here? The Supreme Court sought to resolve a split among federal circuit courts to determine whether employers need only demonstrate by

Government agencies may be eager to exercise their enhanced authority to investigate and pursue contractors under provisions in the newly enacted Administrative False Claims Act (AFCA). The two key changes discussed below could increase the number of claims that agencies may find appealing to investigate. Although these changes affect contractors of any size, small business contractors are likely to find investigations more disruptive if they lack a robust compliance program. But there are ways they can protect themselves by preparing for

The 2nd U.S. Circuit Court of Appeals earlier this month vacated a lower court’s permanent injunction that had prevented the employer notice requirement in New York’s reproductive health bias law from taking effect. The appellate court’s decision in Compass Care v. Hochul means New York employers that have employee handbooks must now include notice of employee’s rights and remedies under the reproductive health bias law in those handbooks. The reproductive health bias law, which took effect in 2020, prohibits employers from

The Federal Trade Commission (FTC) announced Jan. 10 annual revisions to the applicable thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act). These revisions will apply to all transactions closing on or after the effective date of the notice, which will be 30 days after its publication in the Federal Register. The new minimum size of transaction threshold has been adjusted upward from $119.5 million to $126.4 million. Under the HSR Act, the parties to any

A federal judge in Kentucky on Thursday ruled the 2024 Title IX regulations were “arbitrary and capricious” and in violation of the Administrative Procedures Act (APA). Unlike other courts that had issued injunctions preventing the regulations from being implemented in certain states or by certain schools, this court ordered the rule to be vacated, which means that it now may not be enforced by the Department of Education anywhere in the nation. The 2020 regulations that were in place prior

President Joe Biden signed into law last week the Servicemember Quality of Life Improvement and National Defense Authorization Act for Fiscal Year 2025 (NDAA). This defense policy and budget bill contains a discretionary topline of $895.2 billion to be split between the Department of Defense (DoD), Department of Energy (DOE) and other agencies for national defense related spending. The NDAA is a critical piece of legislation that guides the creation of many federal procurement regulations, and this year is no different.

The Small Business Administration (SBA) published earlier this month one of the most significant rule changes in recent history. We previously addressed the new M&A and long-term recertification rules. Now, we’ll examine the homogenization of the negative control rules across the SBA’s small business and socioeconomic programs, as well as the approval of rights of first refusal (ROFRs) for all these programs. These rule changes could materially improve access to capital for 8(a) program participants, woman-owned small businesses (WOSBs) and

The Small Business Administration published a gargantuan new rule Tuesday that will significantly change small business contracting for years to come. The rule was styled “HUBZone Program Updates and Clarifications, and Clarifications to Other Small Business Programs,” and while a large swath of the rule is directed at the HUBZone program, the most consequential changes affecting the largest number of contractors are the “Other Small Business Programs” updates. These changes affect how small businesses calculate their size, permit minority investment, leverage past performance

The Court of Appeals for the Federal Circuit last month granted the Government’s petition for rehearing en banc of the precedent-setting decision in Percipient.ai, Inc. v. United States. A divided panel of the Federal Circuit held in June that a prospective subcontractor had standing to challenge the Government’s alleged failure to adhere to the statutory preference for commercial items. The decision thus expanded the definition of “interested party” under the Tucker Act much more broadly than previous decisions of the Federal

(The following was originally posted Dec. 7, 2023.) It’s the most wonderful time of the year, full of holiday cheer but, unfortunately for some employers, also legal risks and potential liability. A company’s annual holiday party, gala or event can quickly turn from a celebration into a headache. That’s why now is a good time for employers to ensure they have policies in place on the overconsumption of alcohol and harassment. Additionally, employers should consider their possible exposure and ways to

The Federal Acquisition Regulatory (FAR) Council issued an interim rule earlier this month revising FAR 52.204-7 to require offerors to be registered in System for Award Management (SAM) at two points in time: “[1] when submitting an offer or quotation and [2] at time of award.” The interim rule clarifies that offerors are not required to be continuously registered in SAM between those two dates, which is how decisions by the Government Accountability Office (GAO) and the Court of Federal

The National Labor Relations Board held last week that captive audience meetings violate Section 8 of the National Labor Relations Act. A captive audience meeting occurs when an employer requires employees to attend anti-union meetings or face discipline or discharge. The Nov. 13 decision in Amazon.com Services overturns a 1948 decision, with the board unanimously holding that captive audience meetings have a “reasonable tendency” to interfere with employees’ exercise of their rights under Section 7 of the NLRA, which includes the

The weather may be turning colder in Maryland but employers now have new obligations under state law to protect employees against heat hazards. Maryland’s Occupational Safety and Health (MOSH) Division of Labor and Industry recently published its Heat Illness Prevention Standard. It became effective Sept. 30, shortly after the Federal Occupational Safety and Health Administration (OSHA) released a proposed rule for comprehensive heat injury and illness prevention. The Standard differs slightly from OSHA’s proposed rule, specifically for rest periods when

On November 15, 2024, a federal judge vacated and set aside the final rule issued by the Department of Labor (“DOL” or the “Department”), which increased the salary threshold required to classify certain positions as exempt under the white-collar exemptions of the Fair Labor Standards Act (“FLSA”). As a result of the ruling, the $58,656 salary threshold increase set for Jan. 1 will no longer take effect and the prior increase (from $35,568 per year to $43,888 per year) which

Maryland’s Time to Care Act (TTCA), enacted more than two years ago and since amended twice, established a paid family and medical leave insurance (FAMLI) program for Maryland employees. The Maryland Department of Labor’s new FAMLI Division recently issued proposed regulations to implement the program in accordance with the TTCA. Applicable to all employers with at least one Maryland employee, FAMLI will provide eligible employees in Maryland with 12 weeks of paid family and medical “leave and benefits” for certain qualifying

The Department of Defense (DoD) published a Final Rule earlier this month formally implementing the Cybersecurity Maturity Model Certification (CMMC) Program. This Final Rule is the culmination of five years of work to standardize the safeguards that government contractors must implement to protect Federal Contract Information (FCI) and Controlled Unclassified Information (CUI) while also bolstering compliance with these requirements. (For more background on the road to the Final Rule, please read our earlier blog posts on what we’ve called “CMMC Program

The Maryland Department of Health (MDH) released an updated policy manual at the end of September for the 2025 Conrad 30 Waiver Program application cycle, which opened Oct. 1. Changes include an online-only submission process, flexibility for the three-providers- per-practice-site limitation, and guidance regarding telehealth. The Conrad 30 program is one avenue for an immigrant physician to obtain a waiver of the two-year home residency requirement and help alleviate the physician shortage in the United States. (For an overview of the

A slew of new employment laws take effect Tuesday in Maryland related to job postings, wage statements, discrimination, prevailing wages and workplace fraud, among other topics. Notably, Maryland employers should be apprised of the following: Salary Transparency in Job Postings As discussed in greater depth earlier this year, Maryland employers are now required to include the “wage range” for all open and posted job positions. “Wage range” is defined as the minimum and maximum hourly rate or salary for a position, set

As of Oct. 1, health care providers in Maryland must maintain patient medical records and laboratory and X-ray reports for at least seven years after the records and reports are created. The new law increases the record-retention requirement from five years. For a minor patient, records and reports must be maintained until the minor patient reaches the age of majority plus seven years, which for most patients will be when they are 25 years old. Health care providers, which include hospitals

The Commonwealth of Massachusetts will offer a limited tax amnesty for certain “eligible taxpayers” from Nov. 1 through Dec. 30. “Eligible taxpayers” can forward and bring their tax liabilities up to date and receive a penalty abatement. This group includes businesses, individuals, trusts and estates. Taxpayers that are currently in resolution with the Massachusetts Department of Revenue have pending cases or open collection cases will qualify for amnesty along with taxpayers that have unfiled returns or underreported returns.  Amnesty claims must be

The CMS Innovation Center (CMMI) continues to prepare for its next episode-based alternative payment model, the Transforming Episode Accountability Model, or TEAM for short. This five-year model will offer both incentive payments for meeting a pre-determined target price and downside risk to TEAM hospitals that exceed that target price. TEAM will be a mandatory program for almost 750 hospitals selected by CMMI in specific geographic areas, including Washington, D.C., northern Virginia, Connecticut, Vermont and the greater New York City/New Jersey area.

The U.S. District Court for the Northern District of Texas issued its decision Tuesday that the business world had been awaiting with bated breath, striking down the Federal Trade Commission's (FTC) final rule making unlawful virtually all noncompete agreements. Unlike the preliminary injunction granted by the court last month, which was limited only to the parties, the court this week “set aside” the FTC rule, which now may not be enforced by the federal agency anywhere in the nation. The Court’s

We are less than 100 days away from Election Day 2024, so it is critical for employers to ensure that they are following applicable voting leave laws in the states where they have employees. Not all states require employers to provide employees with leave to vote. But several require employers to provide employees with one or more hours of voting leave, and a vast majority of those states require employers to pay employees for that time. Below is a roundup of

As record-high temperatures enveloped most of the U.S. earlier this month, the federal Occupational Safety and Health Administration (OSHA) released a proposed rule for comprehensive heat injury and illness prevention. The proposed rule, “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings,” was many years in the making and would affect employers throughout the United States. In the interim, OSHA and various state regulators that have not already adopted their own laws are issuing citations under Section 5(a)1

The Virginia Business Professional and Occupational License (BPOL) is a local level tax levied on businesses’ gross receipts. Rates typically range from $0.03 to $0.58 per $100 of gross receipts, depending on the locality and industry classification. The tax is calculated based on the previous year’s receipts and filed annually. As a turnover tax, BPOL generally does not allow deductions for business expenses, and exemptions typical for sales and use taxes do not apply. However, there are certain exclusions that

In a unanimous decision, the Supreme Court of the United States recently determined in Connelly v. U.S. that the value of a life insurance policy must be included in the fair market value of a closely held business for purposes of determining the value of a decedent’s interest. Further, the Court stated that any contractual obligation of the business to re-purchase a decedent’s interest does not create an offsetting liability to a life insurance policy. This decision is significant for

On July 3, 2024, the U.S. District Court for the Northern District of Texas issued a limited stay and preliminary injunction of the Federal Trade Commission's (FTC) final rule making unlawful virtually all non-compete agreements. This is an important decision and a win for business groups seeking to invalidate the rule. However, it does not put an end to the rule, as the court specifically rejected the request by plaintiffs for a nationwide injunction, instead limiting the application of the

Louisiana recently passed new legislation prohibiting employers from including nondisclosure provisions in agreements with employees that prospectively forbid employees from disclosing or discussing certain facts or claims concerning sexual harassment. Specifically, effective August 1, Louisiana employers will be prohibited from including in agreements with employees a “nondisclosure clause,” defined as “an agreement between an employee and employer that prevents, or has the effect of preventing, an employee from disclosing or discussing a hostile work environment, allegations of a hostile work environment,

The Court of Appeals for the Federal Circuit (CAFC) continues to redefine the Court of Federal Claims’ (COFC) ability to hear cases affecting all stages of the federal procurement process. Last year alone witnessed decisions in which the CAFC established the Tucker Act’s “interested party” analysis as a matter of statutory standing only, recharacterized its long-standing waiver rule for solicitation defects as a non-jurisdictional claims-processing rule  and rejected the notion that the Contract Disputes Act’s “sum certain” requirement could be used

More than a dozen business groups last month filed a much-anticipated lawsuit seeking to block the U.S. Department of Labor’s (DOL) new final rule that will significantly raise the minimum salary thresholds for exempt employees under the Fair Labor Standards Act (FLSA). The final rule increases the minimum annual salary threshold for exempt executive, administrative, and professional (EAP) employees, as well as outside sales and computer employees from $35,568 per year to $43,888 per year July 1. Then, on Jan. 1,

The Environmental Protection Agency (EPA) chooses criminal, civil or administrative enforcement based on its assessment of the severity of violations. A significant development in EPA’s enforcement strategy has been the increased integration and collaboration between its civil and criminal enforcement offices. To further its enforcement program, the EPA recently introduced the Strategic Civil-Criminal Enforcement Policy. This policy replaces previous guidelines, is effective immediately and according to the EPA aims to address modern environmental challenges more effectively. The key takeaways from this policy

Maryland has long been a solar-friendly state, and the Brighter Tomorrow Act, signed into law by Gov. Wes Moore last month, will expand access and adoption of solar energy. The legislation is both a supportive and forward-looking policy aimed at enhancing sustainability, economic growth and technological advancement within Maryland. Some of the key takeaways from the act are: Creating the Small Solar Energy Generating System Incentive Program by the Maryland Public Service Commission (PSC). The program will allow eligible solar energy generating

Maryland will soon have some of the strictest data protection and privacy requirements in the nation after the Maryland Online Data Privacy Act of 2024 (MODPA) was signed into law by Gov. Wes Moore last week. The law expands the scope of businesses’ personal data protection obligations and consumer privacy rights, offering protections that are aligned with contemporary concerns about data privacy and consumer autonomy. The MODPA goes into effect Oct. 1, 2025 and has a cure period that extends through April

Under new legislation amending Maryland’s Equal Pay for Equal Work Law, employers in the state will be required, as of Oct. 1, to include certain wage information in both public and internal job postings and advertisements. This includes any solicitation intended to recruit applicants for a specific available position, such as recruitment done directly by an employer or indirectly through a third party. These new disclosure requirements will apply to any position that will be physically performed, at least in

The Supreme Court last month made it easier for employees who are involuntarily transferred from one position to another to pursue employment discrimination claims under Title VII of the Civil Rights Act of 1964. Traditionally, for a transfer to constitute a sufficient change to the terms and conditions of employment to establish a discrimination claim, an employee needs to demonstrate that they were left at a significant disadvantage because of the transfer. In Muldrow v. City of St. Louis, Missouri, the

Schools that have been anxiously awaiting the U.S. Department of Education’s final regulations enforcing and interpreting Title IX need wait no longer. The department issued final regulations last week that will govern sex discrimination complaints relating to conduct that occurs after Aug. 1, 2024. The new regulations include significant changes from prior Title IX regulations issued in 2020. The final regulations, among other changes, raise the bar for schools’ compliance, change the definition of sexual harassment, expand protections for LGBTQ+ and

Miles & Stockbridge attorneys participated today in a call with the U.S. Chamber of Commerce for an update on litigation the Chamber has filed to stay or enjoin the effectiveness of the FTC rule banning almost all employee non-competes. (Click here to read our summary of the rule.) Here are some key takeaways from the call: The Chamber filed a lawsuit in U.S. District Court for the Eastern District of Texas challenging the rule and seeking to stay or enjoin the effectiveness of

As we previously wrote when the Pregnant Workers Fairness Act (PWFA) went into effect in June 2023, the law requires most employers with 15 or more employees to provide “reasonable accommodations” for a qualified employee’s known limitations related to pregnancy, childbirth or related medical conditions unless the accommodation will cause the employer an undue hardship. Last week, the Equal Employment Opportunity Commission (EEOC) issued a Final Rule to implement the PWFA. The Final Rule clarifies that, to be protected under the

The Department of Labor (DOL) on Tuesday increased the salary thresholds for the Fair Labor Standards Act (FLSA) white collar exemptions from overtime pay requirements. On July 1, the minimum annual salary threshold for an exempt employee will be $43,888 ($844 per week), up from $35,568 ($684 per week). This threshold will increase to $58,656 ($1,128 per week) on Jan. 1, 2025. To qualify for the FLSA’s highly compensated employee exemption, employees will now have to earn $132,964 per year

The Federal Trade Commission (FTC) on Tuesday, in a 3-2 vote, approved a final rule banning non-competes in almost all employment contexts. This sweeping rule, while not unexpected, has caused quite a stir among employers and workers alike. Here is what employers need to know. Background The rule, which was first proposed in January, comes on the heels of the Biden administration’s 2021 executive order designed to “promote competition in the American economy, which will lower prices for families, increase wages

Miles & Stockbridge’s Labor, Employment, Benefits & Immigration Practice Group presented its 22nd annual Hot Topics in Employment Law seminar April 11 to clients from throughout Maryland and beyond. Topics covered included diversity, equity and inclusion programs, federal and state leave law updates and myriad employment issues raised on a day-to-day basis with human resources professionals, including disability and religious accommodations in the workplace, the impact of changing cannabis and clean slate laws on employers. Here are some highlights from

Companies competing for federal contracting opportunities now have yet another reason to fear their proposals being rejected and their awards getting overturned. A recent decision by the Government Accountability Office (GAO) held that continuous registration in the System for Award Management (SAM) is mandatory throughout the evaluation period for an offeror to be eligible for award, even if a period of lapsed registration is as short as 24 hours. If that were not concerning enough, GAO is not alone in its

A New York law recently went into effect significantly limiting employers’ ability to make inquiries regarding employees’ personal social media accounts. Specifically, the new law makes it unlawful for an employer to request, require or coerce any employee or job applicant to: disclose any username and password, password or other authentication information for accessing a personal account through an electronic device[1]; allow the employer to access the employee's or applicant’s personal account in the presence of the employer; or reproduce pictures, videos or other

U.S. Deputy Attorney General Lisa Monaco delivered keynote remarks March 7 at the American Bar Association’s 39th National Institute on White Collar Crime. In addition to unveiling a new whistleblower pilot program, she discussed the rise of artificial intelligence (AI) and DOJ’s continued effort to fight corruption at the hands of people using AI to further their illegal activities. Just because an unlawful activity is done by or orchestrated with AI does not mean it is not illegal. “Fraud using AI

A federal judge in Vermont last month ruled a plaintiff’s medical marijuana use was not protected by the Americans with Disabilities Act. In Skoric v. Marble Valley Regional Transit District et al., the plaintiff was fired by his employer for failing a random drug test by testing positive for marijuana despite having a valid, state-issued medical marijuana card and being prescribed medical marijuana to treat his chronic pain and depression. In granting the motion to dismiss, the court considered whether the

U.S. Deputy Attorney General Lisa Monaco delivered keynote remarks March 7 at the American Bar Association’s 39th National Institute on White Collar Crime. Emphasizing the need for a culture of compliance, Monaco highlighted the continued importance of existing DOJ programs, including those related to corporate claw backs, acquisition-related disclosures and voluntary self-disclosure. Monaco also announced that the Department of Justice is designing a new whistleblower program that will use monetary rewards to strengthen corporate enforcement efforts and proactively incentivize individuals to

Maryland Comptroller Brooke Lierman issued a letter Feb. 28 to address the challenges and concerns of tax practitioners regarding the policy and procedural changes to pass-through entity (PTE) filings and payments. Most significantly, the comptroller has agreed to provide a one-time waiver for taxpayers who missed electing PTE treatment on the first filing of the year. Background The comptroller said last April that, for tax years beginning after Dec. 31, 2022, PTEs are required to elect (or not elect) to pay tax

The Miles & Stockbridge Health Care Practice Group hosted its inaugural Hot Topics in Health Care Law seminar last month for clients from Maryland and beyond. Miles & Stockbridge health care lawyers kicked off the seminar with a year in review, which covered topics including recent appellate cases and legislation impacting health care, consolidation in the health care market, the current state of Medicare telehealth rules, website tracking technologies and HIPAA breaches and enforcement. The seminar finished with an engaging panel

As the Virginia General Assembly’s session nears its conclusion, lawmakers continue to revise the two-year state budget that may create significant alterations to the state’s current taxing scheme, particularly in the areas of sales and use tax. Background Virginia institutes two forms of sales and use tax: the Retail Sales and Use Tax that is historically limited to sales of tangible personal property and a handful of enumerated services at a rate of 5.3%; and the Communications Sales and Use Tax that is

(A version of this blog post was originally published in September and then published again in January. Funding for several federal agencies will run out Friday night, with funding for the remaining agencies expiring March 8, if Congress does not act.) Shutdowns are inevitably disruptive for federal contractors, but the impact will vary depending on whether the contract is already funded, whether the work is considered “essential,” and whether the contractor requires access to federal facilities or approvals from non-essential federal employees, among

New York Gov. Kathy Hochul in December vetoed a bill passed by the New York Legislature that would have prohibited nearly all noncompete agreements in the state regardless of the context, salary level or job function of the employee signing it. The ban would have applied equally to all employees and managers alike, regardless of rank or position.  In particular, the vetoed bill would have barred employers from imposing contract language that prohibits New York employees or other “covered individuals” from

The Department of Homeland Security (DHS) announced Friday key changes to the H-1B lottery for Fiscal Year 2025, including a beneficiary-centric selection process for H–1B registrations; start-date flexibility for certain H–1B cap-subject petitions; and codification of the agency’s ability to deny or revoke H-1B petitions where the underlying registration or petition contained a false attestation or was otherwise invalid. The United States Citizenship and Immigration Services (USCIS) is authorized to grant up to 85,000 H-1B cap-subject petitions per fiscal year, of

The National Labor Relations Board (NLRB) is chipping away at employment agreements and other restrictive covenants one clause at a time. In a recent memorandum, the General Counsel said she believes restricting employees from holding outside or secondary employment violates federal labor law, and she intends to urge the NLRB’s Democratic-appointee-controlled Board to reach the same conclusion. The General Counsel was providing a regional office advice about the lawfulness of various provisions in a company’s employment agreement when she took issue with

The Department of Homeland Security published a final rule Jan. 31 adjusting the filing fees for applications for immigration benefits submitted to U.S. Citizenship and Immigration Services (USCIS). For most application types — and particularly for most employment-based requests — the fees will increase, in some cases substantially. The new fees will go into effect on April 1 unless implementation is delayed or otherwise impacted due to legal challenges. Notable Changes The most notable changes in the fee structure for common employment-based

Thursday was the deadline for all Washington, D.C., employers to post the new paid family leave notice/poster, which was recently issued by the district’s Department of Employment Services (DOES). The notice must be posted in a “conspicuous place,” and must be provided to employees on or before Feb. 1, 2024. The new notice became effective last October and is identical to the previous notice in effect from October 2022, except the new notice increases the maximum weekly benefit from $1,049

Washington Mayor Muriel Bowser signed legislation earlier this month that would require employers to disclose pay ranges in job postings and prohibit employers from screening prospective employees based on their salary history. The new law will apply to all employers with at least one employee in the District of Columbia, excluding the federal government, and will go into effect June 30, subject to congressional approval. Under existing law, D.C. employers are prohibited from: (1) requiring that employees refrain from inquiring about, disclosing,

The Federal Trade Commission (FTC) announced Jan. 22 annual revisions to the applicable thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act). These revisions will apply to all transactions closing on or after Feb. 21. The new minimum size of transaction threshold has been adjusted upward, from $111.4 million to $119.5 million. Under the HSR Act, the parties to any proposed acquisition of assets, voting securities or non-corporate interests meeting prescribed thresholds must notify the FTC

Two bills took effect in California earlier this month imposing further limitations on restrictive covenants in employment agreements, one of which voids noncompete agreements even if they are signed outside of the state. While noncompete agreements are largely void in California, Senate Bill 699 expands the ways in which employees can challenge noncompete agreements. Specifically, the bill makes any agreement that restricts an employee’s ability to engage in a lawful profession, trade or business unenforceable regardless of where and when it

The Maryland Department of Labor (MDOL) issued proposed regulations last month to the Economic Stabilization Act. Also known as the Maryland Mini-WARN Act, it provides notice requirements and guidance to employers faced with a shutdown of a plant, factory, or office or a major reduction in their workforce. The proposed regulations amend definitions, time and notice requirements to the act and implement compliance and penalty requirements. The public-comment period closed Tuesday, while a public hearing to review the proposed regulations has

The U.S. Department of Labor (DOL) announced a final rule last week revising its guidance to employers and workers to help determine if a worker qualifies as an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The new rule, which was published in the Federal Register on Wednesday and takes effect March 11, rescinds the DOL’s previous Independent Contractor Rule that was published three years ago.  The final rule’s analysis for determining employee or independent contractor status

(A version of this blog post was originally published in September. Congress has until Jan. 19 to approve four separate appropriations bills to keep the government open.) Shutdowns are inevitably disruptive for federal contractors, but the impact will vary depending on whether the contract is already funded, whether the work is considered “essential,” and whether the contractor requires access to federal facilities or approvals from non-essential federal employees, among other considerations. Contractors can minimize the effect of the shutdown by reviewing their

Any acquisition involving a small business government contractor comes with a host of questions concerning what effect, if any, the transaction may have on the small business’s size and status post-closing. Will a firm that certifies as small or for a particular small business socioeconomic status (Woman Owned Small Business, Service Disabled Veteran Owned Small Business (SDVOSB), etc.) pre-closing keep its status even after the deal? In many cases, no. This potential reality leads to more questions. What will become of

Last year continued the trend of rising inflation, interest rates and borrowing costs, as well as cost-of-living increases. With these concerns top of mind, many states continued to increase their required minimum wage rates. Employers should be aware of the following minimum wage increases that took effect at the end of 2023 or the beginning of 2024. Because these increases do not apply to tipped workers and other special classes of employees, and may be superseded by local mandates, employers should

Roughly 20 states and 30 local jurisdictions have implemented paid sick leave laws. Several of these states and jurisdictions amended their paid sick leave policies in 2023, with the amendments taking effect Jan. 1, 2024. Additionally, Minnesota has enacted its first statewide paid sick and safe time law, which also takes effect Monday. Below is a summary of these new or updated laws. California California’s paid sick leave law applies to any employer that employs at least one employee in California

The Supreme Court earlier this month declined to address who has standing to sue a business whose website violates the Americans with Disabilities Act (ADA). In Acheson Hotels, LLC v. Laufer, the justices unanimously remanded the case back to the lower court with instructions to dismiss it as moot, sidestepping an examination of the merits of a case with national implications for hotels and potentially other public accommodations as well.  Background Deborah Laufer is a prolific litigant with physical disabilities and

It’s the most wonderful time of the year, full of holiday cheer but, unfortunately for some employers, also legal risks and potential liability. A company’s annual holiday party, gala or event can quickly turn from a celebration into a headache. That’s why now is a good time for employers to ensure they have policies in place on the overconsumption of alcohol and harassment. Additionally, employers should consider their possible exposure and ways to reduce liability based on the actions of

Maryland health care employers and J-1 physicians who commit to serve the underserved in Maryland and who missed Conrad 30 waiver application deadline Dec. 1 are in luck: The Maryland Department of Health (MDH) has reopened its application period! Physicians who completed graduate medical education in J-1 status now have additional time to secure a clinical service waiver of the two-year home residence requirement to provide medical services in Maryland. MDH received fewer than 30 Conrad waiver applications prior to the

The National Labor Relations Board (NLRB) issued a controversial decision last year significantly limiting a company’s ability to implement and enforce uniform and dress code policies. In Tesla, Inc., 317 NLRB No. 131 (2022), the NLRB said Tesla could not prohibit employees from wearing pro-union shirts at work absent “special circumstances” justifying the prohibition. The Board reached its decision even though Tesla’s dress code policy was content-neutral (requiring only that employees wear Tesla-issued shirts) and even though employees could still

As the Covid-19 pandemic drifts further into the rearview, many companies are rolling back work-from-home policies and requiring employees to return to the office on a schedule similar to pre-pandemic office hours, with renewed attendance requirements. Many executives say their companies are more innovative and collaborative when employees are physically present in the office, which in turn increases revenue, productivity and employee retention. After several years of work-from-home, however, some employees are opposed to return-to-office mandates. Employees seeking an exemption from

The National Labor Relations Board (NLRB) and the Occupational Safety and Health Administration (OSHA) recently entered into a new Memorandum of Understanding (MOU) under which the two agencies have agreed to work together to foster interagency cooperation and coordination through information sharing, referrals, training and outreach, with a particular focus on enforcement of the anti-retaliation provisions of the National Labor Relations Act (NLRA) and Occupational Safety and Health Act (OSH Act), as well as other whistleblower provisions under laws falling

The Equal Employment Opportunity Commission (EEOC) released earlier this month updated proposed guidance on harassment in the workplace, largely based on developments in applicable case law and societal trends coming out of the #MeToo movement and the rise of social media. (The guidance was first released in 2017 but was never finalized.) Expansions on Protected Classes The proposed guidance expressly references the Supreme Court’s 2020 decision in Bostock v. Clayton County, which held that Title VII’s prohibition on employment discrimination “because of

Gov. Gavin Newsom vetoed a bill earlier this month that would have made California the first state to ban caste-based discrimination. Senate Bill No. 403 would have expanded the definition of “ancestry” under the California Fair Employment and Housing Act (FEHA), California Education Code and the Unruh Civil Rights Act (California Civil Code Section 51) to include “lineal descent, heritage, parentage, caste, or any inherited social status” as protected sub-classes. Newsom deemed the bill unnecessary, reasoning that discrimination based on

Sharing personal data across borders is critical for organizations operating and doing business internationally. Doing so in compliance with data security and privacy laws, however, can be a complex and challenging exercise due to the differing protections and transfer mechanisms across jurisdictions and countries. Thanks to recent developments between the United States, European Union and United Kingdom, U.S. companies once again have an easier pathway to share and receive data from their business partners and related entities in the EU

Deputy Attorney General Lisa Monaco announced a new safe harbor policy for voluntary self-disclosures made in connection with mergers and acquisitions on Wednesday. Pursuant to this new policy, the DOJ will not prosecute companies that self-report potential violations occurring within an acquisition target's business. Here are the key parameters of the M&A self-disclosure policy: The self-disclosure must be made within six months of a deal's closing. The six-month threshold applies whether the misconduct was discovered pre- or post-acquisition. The acquirer will have one

The potential government shutdown Sunday would impact a host of federal government programs and agencies, and immigration is no exception. Here’s a look at the potential impact of a shutdown on immigration-related programs and what employers and foreign workers can expect. USCIS U.S. Citizenship and Immigration Services (“USCIS”) is a fee-based agency — as opposed to having its funding appropriated by Congress — and, therefore, many of its operations will continue as normal. USCIS should continue to accept, process and adjudicate petitions

In July, we wrote about a bill passed by the New York State Assembly which, if signed by the governor, will prohibit nearly all noncompete agreements for workers in New York. We also wrote about a Minnesota law that went into effect in July, banning nearly all post-employment noncompetes entered into on or after July 1, 2023. As the attack on noncompetes continues at the federal and state levels, California Gov. Gavin Newsom recently signed legislation to amend California’s noncompete

The end of the federal fiscal year is rapidly approaching with no compromise in sight. Unless an appropriations bill or continuing resolution is passed by Congress before Oct. 1, a lapse in appropriated funds will occur, causing a government shutdown. Shutdowns are inevitably disruptive for federal contractors, but the impact will vary depending on whether the contract is already funded, whether the work is considered “essential,” and whether the contractor requires access to federal facilities or approvals from non-essential federal

The Equal Employment Opportunity Commission (“EEOC”) and the Wage and Hour Division of the Department of Labor (“WHD”) entered into a far-reaching Memorandum of Understanding (“MOU”) last week under which the two agencies agreed to work together to increase enforcement of the federal laws administered by the two agencies through information sharing, joint investigations, training and outreach. Key Elements Information Sharing Under the MOU, the WHD and the EEOC may share any information or data that supports the other agency’s enforcement activities, whether the

Employers in New York can no longer discipline employees who opt not to attend “captive audience” meetings under a new state law. Employers generally hold these mandatory meetings to express their views on unionization to their workforce. The new law amends Section 201-d of the New York State Labor Law, which already prohibited employer discrimination on the basis of an individual’s political activities, off-duty use of cannabis and union membership. The amendment specifically prohibits employers from requiring attendance at meetings where

The National Labor Relations Board in August broadened the scope of what constitutes “protected concerted activity” under federal labor law with two key decisions. In Miller Plastic Products, Inc., 372 NLRB No. 174 (2023), the Board returned to a “totality of the circumstances” approach to evaluating whether an employee’s activity is concerted within the meaning of the National Labor Relations Act (“the Act”). In American Federation for Children, Inc., 372 NLRB No. 137 (2023), the Board held that advocacy efforts

The National Labor Relations Board (NLRB) issued companion decisions last month that significantly limit an employer’s ability to change the working conditions of their unionized staff without bargaining with the union. Wendt Corporation In Wendt Corporation, 372 NLRB No. 135 (2023), the Board reaffirmed the Supreme Court decision in NLRB v. Katz, 369 U.S. 736 (1962). Under Wendt and Katz, employers are prohibited from unilateral action informed by a large measure of discretion, even where the action is consistent with a longstanding

The U.S. Department of Labor (DOL) announced Wednesday a proposed rule that would increase the minimum salary threshold for exempt employees under the Fair Labor Standard Act (FLSA). DOL said the standard salary level for exempt employees would increase from $35,568 per year to $55,068 per year if the rule is implemented. Additionally, the total annual compensation threshold for highly compensated employees would increase from $107,432 to $143,988 per year. The proposal also includes a provision that would trigger automatic updates

The National Labor Relations Board (NLRB) signaled last week its preference that employers voluntarily recognize unions based on “card check” rather than a secret ballot election. In Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130, the Board also turned the current union organizing framework on its head by making it an employer’s responsibility – rather than a union’s – to file an election petition with the NLRB. This decision, in conjunction with the Board’s final election rule that takes

On Aug. 25, the National Labor Relations Board (NLRB) published a Final Rule that will reduce the time between the filing of a union election petition and the date the election occurs. The new rule largely reverses the 2019 election rules (“2019 Rule”) instituted by a then-Republican Board and returns to the Board’s election procedures in place since 2014, which critics have labeled “quickie election” rules. The Board previously rescinded parts of the 2019 Rule that were struck down last year

Almost a year to the day after the Build America Buy America Act (BABA) became law, the federal Office of Management and Budget (OMB) has published its “Final Guidance for Grants and Agreements” intended to implement BABA’s domestic content preference requirements (88 FR 57750, Aug. 23, 2023). BABA and Prior OMB Guidance BABA was enacted last August as part of the Infrastructure Investment and Jobs Act (IIJA) (see sections 7091-70927, Pub. L. 117-58, 135 Stat 429). It imposes Buy America preferences for

We continue to track updates to the Pregnant Workers Fairness Act (“PWFA”) that took effect June 27.[1] On Aug. 7, the EEOC released its Notice of Proposed Rulemaking for implementing the PWFA (“Proposed Rule” or “Proposed Regulations”). The Proposed Regulations were published to the Federal Register on Aug. 11, starting the 60-day public comment period. In the interim, the Proposed Regulations provide employers with a glimpse into the EEOC’s enforcement strategy. While the PWFA is similar in some respects to

On Aug. 2, the National Labor Relations Board (NLRB)  set a new standard to evaluate facially neutral work rules in union and nonunionized workplaces  when it issued a much-anticipated decision in Stericycle, Inc., 372 NLRB No. 113 (2023). The new standard skews heavily in favor of employees and unions and overrules the more employer-friendly precedent in place since 2017. Unfortunately, however, Stericycle provides little, if any, guidance to employers about how to craft rules that will satisfy the new standard. The New

On June 30, 2023, the Supreme Court rendered its long-awaited decision in 303 Creative LLC v. Elenis, holding that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs that would conflict with her religious beliefs. Background Under the Colorado Anti-Discrimination Act (“CADA”), all “public accommodations” are prohibited from denying the “full and equal enjoyment” of its goods and services and may not refuse to serve a customer based on their race, gender, age, sexual orientation, or any

COVID-19-related temporary flexibilities for Form I-9 end July 31, and employers face the daunting task of completing in-person physical document inspections for employees whose documents were inspected remotely by Aug. 30. The newly announced alternative remote I-9 document examination procedure authorized by the Department of Homeland Security (DHS) provides much needed and welcome relief for qualified E-Verify employers. Effective July 31, the COVID-19 flexibilities that had permitted employers to remotely examine I-9 documents under certain circumstances since March 20, 2020 will

The Supreme Court ruled unanimously last month in favor of an evangelical Christian postal worker who refused to work on Sundays due to Sabbath observance. In Groff v. DeJoy, while declining to overturn its longstanding precedent for establishing undue hardship in the context of religious accommodations, the Supreme Court clarified its prior interpretation from 1977 in Trans World Airlines v. Hardison, holding that, to deny a religious accommodation on the basis of undue hardship, an employer must show that the

The Centers for Medicare & Medicaid Services (CMS) published a Request for Information (RFI) on July 18 regarding the design of a future, episode-based payment model on behalf of CMS’s Center for Medicare and Medicaid Innovation (the Innovation Center). Comments in response to the RFI should be submitted by Aug. 17 either online or by mail. The Innovation Center seeks information from the public to supplement its previous experience with other episode-based payment models, like the Bundled Payment for Care Improvement

Earlier this month, we wrote about a bill passed by the New York State Assembly which, if signed by the governor, will prohibit nearly all noncompete agreements for workers in the state. Now, yet another state, Minnesota, has banned nearly all post-employment noncompetes entered into on or after July 1, 2023. Broad Ban on Noncompetes Gov. Tim Walz signed into law May 24 a bill prohibiting employers from entering into noncompete agreements with employees or independent contractors. The Minnesota law defines a

In a landmark decision, the Supreme Court held last month that race-based college admissions programs violate the U.S. Constitution’s promise of equal protection under the law. The main issue before the court in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et al. was whether the admissions systems used by Harvard and UNC, two of the oldest institutions of higher learning in the United States,

The Supreme Court came down hard on unions last month when it held that a company may bring state law tort claims against a union for property damage caused during a strike. The court held that the federal law governing labor disputes – the National Labor Relations Act (“NLRA” or the “Act”) – did not preempt the company’s state law claims. In Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174, 143 S.Ct. 1404, a concrete company brought

The National Labor Relations Board (“NLRB” or “the Board”) continued its course of reversing Trump-era law by issuing a decision last month that will make it easier for workers to establish “employee” – as opposed to “independent contractor” – status within the meaning of the National Labor Relations Act (“the Act” or “NLRA”), thereby giving more workers the right to unionize in private-sector workplaces. In The Atlanta Opera, Inc., 372 NLRB No. 95, the Board found that makeup artists, wig artists

The New York State Assembly, during a special legislative session last month, passed a bill that, if signed by the governor, will prohibit nearly all noncompete agreements for workers. With the passage of the bill, New York is poised to join California and a handful of other states that have banned noncompetes regardless of salary level or job function. Broad Ban on Noncompetes The bill contains a near-total ban of noncompete agreements for employees, and potentially independent contractors, based in New York. On

The wait is over! The Pregnant Workers Fairness Act (“PWFA”) took effect June 27. Employers who haven’t already done so should familiarize themselves with the law’s requirements and take any steps necessary to ensure they are following the new law, including giving proper consideration to requests for reasonable accommodations raised by pregnant employees. We are still waiting on exact guidance from the Equal Employment Opportunity Commission (EEOC) as to what could be considered a reasonable accommodation, which the agency should issue

The U.S. Federal Trade Commission (“FTC”), with the concurrence of the Antitrust Division of the U.S. Department of Justice (“DOJ”), announced late last month proposed changes the premerger notification form and rules under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”). The proposed changes would substantially increase the amount of information and level of review required by filing parties. A significant increase in the time required to prepare filings and heightened antitrust scrutiny of transactions are likely

Last week, the U.S. Supreme Court held that litigation before the district court must be halted when a party appeals a denial of a motion to compel arbitration. In Coinbase v. Bielski, the court resolved a split among lower courts as to whether a stay of the proceedings was required during an interlocutory appeal on the question of arbitrability. This decision impacts countless business and consumer contracts containing arbitration clauses governed by the Federal Arbitration Act. Pointing to its holding in

The U.S. Department of Defense (DoD) recently issued a proposed amendment to the Defense Federal Acquisition Regulation Supplement (DFARS) that tightens “Buy American” thresholds for DoD procurements. The Proposed Rule supplements and largely mirrors the Federal Acquisition Regulation (FAR) implementation of President Joe Biden’s Executive Order (E.O.) 14005, “Ensuring the Future is Made in All of America by All of America’s Workers,” while incorporating several DoD-unique requirements. Most importantly, the Proposed Rule introduces the following changes: Increases the Domestic Content Threshold.

It is not any exaggeration to say that mentor-protégé joint ventures (MPJVs) have taken over the world of set-aside Government-Wide Acquisition Contracts (GWACs). For example, late last year it was reported that the initial award list for CIOSP4 small business was entirely or mostly comprised of mentor-protégé joint ventures.[1] As a result, there is growing sentiment that using an MPJV is now required to win a seat on large, set-aside vehicles. This understanding has been reinforced by the recent changes

In a continued effort to crack down on provisions in employment agreements, the National Labor Relations Board’s General Counsel (“GC”) announced that she will find most noncompete agreements between private sector employers and non-supervisory employees unlawful, absent special circumstances justifying the noncompete. In the memo, which was released to the NLRB’s field offices May 30, Jennifer A. Abruzzo concluded that noncompete agreements hinder employees in the exercise of Section 7 rights – that is, their right under the National Labor Relations

Over the past three years, employers have navigated various workplace issues impacted by the COVID-19 pandemic, including remote work, vaccination, contraction of COVID-19 in the workplace and workplace accommodations, among many others. Since March 2020, the Equal Employment Opportunity Commission (“EEOC”) has maintained and updated guidance to assist employers with this process. Last month, the federal Public Health Emergency for COVID-19 (“PHE”) – which had been in place since early 2020 – officially ended. In its most recently updated guidance,

As we noted on the blog in February and discussed during our annual Hot Topics in Employment Law Seminar on April 25, the Pregnant Workers Fairness Act (“PWFA”), which will require employers subject to Title VII to provide covered employees with reasonable accommodations necessitated by pregnancy, childbirth or related medical conditions, will take effect June 27, and the Providing Urgent Maternal Protections for Nursing Mothers (“PUMP”) Act, which expands existing employer obligations to include providing pumping breaks for exempt employees covered

Employers are increasingly relying on electronic systems to supplement – and, at times, supplant – the work of actual human employees relating to certain hiring, retention and employee-management practices. Such systems are often utilized or viewed as a measure to increase efficiency, reduce human error, decrease costs and optimize performance metrics. Of particular note in this arena is algorithmic decision-making tools, such as artificial intelligence (“AI”). At its essence, AI leverages computers and machines to mimic the problem-solving and decision-making capabilities of

The Montgomery County Department of Finance published the required biennial update of its development impact taxes for transportation and public school improvements May 1. These taxes must be paid prior to the issuance of building permit(s) for a project. Absent County Council action to the contrary, effective July 1, all transportation impact tax rates will increase by 9.47%. This increase represents the change in the Engineering-News Record's Baltimore Construction Cost Index for calendar years 2021 and 2022. Meanwhile, most school impact

One year after Maryland’s Paid Family and Medical Leave Insurance Program (“FAMLI”) was established by the Time to Care Act of 2022 (the “Act”), the General Assembly passed SB 828, which modifies multiple provisions of the program. (An overview of FAMLI as initially enacted can be found here.) Gov. Wes Moore signed the bill into law May 3. Notable Changes to the FAMLI Program The Act initially required covered employers — those with 15 or more employees — to begin contributing to

Miles & Stockbridge’s Labor, Employment, Benefits & Immigration Practice Group presented its 21st annual Hot Topics in Employment Law seminar April 25 to clients from throughout Maryland and beyond. Topics covered included employee pay updates; the proposed federal ban on non-competes; attacks on confidentiality clauses in employment agreements; federal and state leave law updates; and the myriad issues raised on a day-to-day basis with human resources professionals, including health and safety issues in the workplace, the impact of changing cannabis

The National Labor Relations Board has reverted to decades-old standards for assessing whether employee misconduct during the course of protected activity should be protected under federal labor law. The Board’s move will make it more difficult for employers to discipline employees for bad behavior at work if the behavior occurs in the context of discussions or protests over working conditions. The decision applies to private sector employers in union and non-unionized work environments. In Lion Elastomers LLC, 372 NLRB No. 83,

The Maryland Comptroller’s Office issued a Tax Alert on April 11, 2023, addressing policy and procedural changes to pass-through entity (PTE) filings and payments. For tax years beginning after Dec. 31, 2022, PTEs are required to elect (or not elect) to pay tax at the entity level on all members’ shares of income or pay the mandatory tax on behalf of its nonresident members by the first filing or tax payment for the applicable tax year. Additionally, the annual election (or

The federal Department of Education released a notice of proposed rulemaking earlier this month addressing gender identity and participation in athletics. The long-anticipated proposed regulation, which would amend Title IX regulations, follows two years of outreach to various stakeholders, including the June 2021 nationwide public hearing assembled by the department’s Office of Civil Rights involving live testimony from over 280 individuals and submission of more than 30,000 written comments. The department states this process provided valuable information regarding the desire from

In an era of fluctuating obligations, ramped-up enforcement and increased penalties, employers are wise to ensure they are fully compliant with current Occupational Safety and Health Administration (OSHA) recordkeeping and electronic reporting requirements. Current Requirements Employers with more than 10 employees have long been required to maintain a record of work-related fatalities, injuries and illnesses using OSHA 300, 300A, and 301 forms (or equivalent forms for establishments not partially exempt based on industry). For covered employers, severe injuries and fatalities must be

The COVID-19 pandemic spurred countless businesses to transition to a remote workforce. Today, despite the public health emergency ending May 11, many of those workforces remain fully or partially remote. To that end, the U.S. Department of Labor’s Wage and Hour Division issued a Field Assistance Bulletin in February regarding telework under the Fair Labor Standards Act (FLSA) and Family Medical Leave Act (FMLA). The Bulletin discusses what FMLA and FLSA compliance looks like when a business employs teleworkers and how

The White House Office of Management and Budget (OMB) issued a Proposed Rule and Notification of Proposed Guidance to federal agencies earlier this year regarding the implementation of the Build America, Buy America Act (BABA), which imposes a government-wide preference for domestically produced iron and steel, manufactured products, and construction materials in federal infrastructure projects. The Proposed Rule builds upon the White House guidance for BABA released in April 2022. Although confusingly styled as “guidance,” the Proposed Rule proposes definitions

The Uniformed Services Employment and Reemployment Rights Act (USERRA) applies to all private employers in the U.S., regardless of size, and requires them to provide unpaid leave for up to five years for certain absences related to an employee’s service in the military. While employers may choose to pay for a portion of this time, there was no requirement to do so – until this year. USERRA generally requires employers to provide the same “rights and benefits” to employees during a

(UPDATE, April 11: Senate Bill 686 was approved in both chambers and awaits the signature of Maryland Gov. Wes Moore before becoming law.) The Maryland Senate recently passed Senate Bill 686, also known as “The Child Victims Act of 2023,” which, if enacted, would erase the time limit for childhood sexual abuse survivors to file civil lawsuits. Under Maryland’s current law, there is no statute of limitations on criminal charges of child sex abuse but, since 2017, survivors of child sex

The National Labor Relations Board’s decision last month in McLaren Macomb, holding that the mere proffer of a severance agreement containing a broad confidentiality or non-disparagement clause violates federal law, left many employers questioning what to do with their existing severance agreements and wondering about the practical implications of the decision. (We wrote about the Board’s decision here.) Last week, the NLRB’s General Counsel, who oversees the Board’s 26 field offices, released a memo to assist field offices in responding to

Montgomery County is in the process of updating several of its master plans, which make recommendations regarding land use, zoning, transportation and public facilities that shape the future development of specific properties. The master plan adoption process entails the development of a draft plan by Montgomery County Planning Staff (“Planning Staff”) and the Planning Board, approval by the County Council, and, finally, adoption by the full Maryland-National Capital Park and Planning Commission. Below is a list of key master plans

Proposed legislation that would govern recreational marijuana use in Maryland was amended earlier this month in the House of Delegates to remove employer protections. Consistent with existing state policy regarding medicinal cannabis use, House Bill 556, as originally written, maintained Maryland employers’ rights to deny employment to an individual who tests positive for cannabinoids or cannabinoid metabolites, provided that the test was conducted in accordance with the employer’s established drug testing policy. The bill also retained employers’ rights to discipline employees

Over the past three years, employers have grappled with how best to respond to various workplace issues caused by the COVID-19 pandemic. Many of the protocols employers put in place relied heavily upon guidance issued by the Centers for Disease Control, National Institutes of Health and other federal, state and local government authorities during the COVID-19 national emergency (NE) and public health emergency (PHE). Now that the Biden administration has announced its plan to officially end both the NE and PHE

The City of Rockville has launched the rewrite of its Zoning Ordinance to modernize it and implement the 2040 Comprehensive Plan of the City of Rockville (2040 Plan). Because the city anticipates the rewrite to be a lengthy process, the Mayor and Council have introduced an interim zoning text amendment (Interim ZTA) to allow development in accordance with the 2040 Plan in the near-term. The city’s Planning Commission is reviewing and developing its recommendations to the Mayor and Council on

U.S. Citizenship and Immigration Services (USCIS) updated last year its policy guidance about a specific type of employment-based, immigrant visa petition known as a National Interest Waiver (NIW), clarifying and possibly relaxing the standards for foreign nationals with advanced degrees in science, technology, engineering, and mathematics (STEM) fields. The new guidance reflects the Biden Administration’s efforts to attract and retain foreign STEM graduates, which we previously discussed in regards to O-1 nonimmigrant visas. These updates make the NIW a potentially

The U.S. Department of Justice (DOJ) announced Friday a three-year pilot program designed to promote compensation systems that “shift the burden of corporate financial penalties away from shareholders . . . on to those more directly responsible.” The Compensation Incentives and Clawbacks Pilot Program directs companies entering into criminal resolutions to implement  compliance-oriented compensation systems and provides incentives to companies that seek to recoup compensation from culpable employees. First, the DOJ directs companies entering into criminal resolutions to implement robust, compliance-related

Many U.S. enterprises and U.S. real estate holdings have some degree of foreign ownership. Federal law requires the filing of detailed reports on foreign ownership every five years by U.S. enterprises “in which a foreign person . . . owned or controlled, directly or indirectly, 10 percent or more of the voting securities in an incorporated U.S. business enterprise, or an equivalent interest in an unincorporated business enterprise.” 15 C.F.R. part 801.10(b). The U.S. government expects this requirement to apply

The National Labor Relations Board last week sent employers into a frenzy over their severance agreements when it declared most standard nondisparagement and confidentiality provisions unlawful and held that even the mere proffer of severance agreements containing such provisions to employees violates federal labor law. The Board’s decision impacts private sector employers in union and nonunion workplaces. The Board’s decision Feb. 21 in McLaren Macomb reverses a set of cases decided in 2020 by a then-Republican-controlled Board, which held that severance

The U.S. Department of Justice (DOJ) on Wednesday issued a new Voluntary Self-Disclosure (VSD) Policy for United States Attorney’s Offices, effective immediately. “The policy details circumstances under which a company will be considered to have proactively and voluntarily self-disclosed misconduct by employees or agents, as well as the incentives associated with making such a disclosure.” The policy aims to make the USAO’s definition of VSD uniform across offices and clarify the requirements needed to receive disclosure credit. The policy identifies three

The federal Provider Relief Fund (“PRF”) continues to render financial assistance to medical providers that offer diagnoses, testing or treatment of individuals with possible or actual cases of COVID-19. To date, the U.S. Department of Health and Human Services has distributed over $19 billion to help medical professionals prevent, prepare for, and respond to the coronavirus. PRF distributions are subject to certain terms and conditions, and reporting requirements if a specific distribution exceeded $10,000. Providers who fail to agree to

One of the greatest joys in my life – next to becoming a lawyer, of course – was becoming a mother. However, it was also one of the scariest times in my life. I remember starting a new job while pregnant, unsure of what my role would entail or how the firm would react upon learning the news. Thankfully, I joined a firm that is thoughtful and caring, ahead of its time when it comes to expecting employees. Unfortunately, many

The Pregnant Workers Fairness Act (“PWFA”) is not the only new pregnancy-related law for employers to look for in 2023. The federal Providing Urgent Maternal Protections for Nursing Mothers Act (or “PUMP Act”) became law in December. The PUMP Act expands upon the requirements set forth in the Break Time for Nursing Mothers provision of the Fair Labor Standards Act (“FLSA”), which requires employers to provide nursing mothers for at least one year after giving birth a reasonable break time to

Employers: Don’t throw out your open-door policy just because your employees are unionizing. That’s the message the National Labor Relations Board shared this week in cautioning companies against telling their employees that they cannot maintain a direct relationship with management if they vote for a union. Under a 1985 case called Tri Cast, Inc., 274 NLRB 377, the Board set a broad standard for what employers were allowed to say about the future of the employment relationship to convince employees not

A divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled earlier this month that the National Labor Relations Board violated the Administrative Procedure Act (APA) in 2019 by issuing certain rules governing union election procedures without seeking public comment. The 2019 Rule – issued by a Trump Board – modified what is colloquially known as the Obama Board’s 2014 “quickie election” rules. The AFL-CIO challenged the 2019 Rule and in 2020, now-Supreme Court Justice Ketanji Brown

Miles & Stockbridge is preparing for what we hope will be a fortuitous H-1B lottery season for cap-subject petitions. The United States Citizenship and Immigration Services (“USCIS” or the “Service”) announced last week the H-1B cap registration period for FY 2024 (Oct. 1, 2023 to Sept. 30, 2024) will run from March 1 through March 17. The H-1B registration program, as it has been administered since FY21, allows employers to register with USCIS for the H-1B lottery without incurring substantial

The Federal Trade Commission (“FTC”) announced Jan. 23 annual revisions to the applicable thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”). These revisions will apply to all transactions closing on or after Feb. 22. The new minimum size of transaction threshold has been adjusted upward, from $101 million to $111.4 million. Under the HSR Act, the parties to any proposed acquisition of assets, voting securities or non-corporate interests meeting prescribed thresholds must notify the FTC

The U.S. Environmental Protection Agency (“U.S. EPA”) has revised the standards by which real property purchasers, lessees and environmental professionals should conduct a Phase I Environmental Site Assessment (“Phase I ESA”). Compliance with the new rule matters because failure to follow the new standard may cost a client the protection of important legal defenses to Superfund claims for past contamination discovered after the transaction closes. The agency has taken final action to amend the standards for conducting an All Appropriate Inquiries

In the past few months, the U.S. Environmental Protection Agency (U.S. EPA) has done three significant things to tighten controls on per- and polyfluoroalkyl substances (PFAS). I.  Proposing to List PFAS as ‘CERCLA Hazardous Substances’ The first measure to increase transparency around when and how these ubiquitous chemicals are being released into the environment was proposing to list PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. Among CERCLA’s many regulatory requirements,

Maryland health care employers and J-1 physicians who commit to serve the underserved in Maryland and who missed the Dec. 1 J-1 Conrad 30 waiver application deadline are in luck: The Maryland Department of Health (MDH) has reopened its application period! Physicians who completed graduate medical education in J-1 status now have additional time to secure a clinical service waiver for the two-year home residence requirement to provide medical services in Maryland. MDH received 24 Conrad waiver applications prior to the

The Federal Trade Commission (FTC) proposed a rule last week that would ban employers from requiring workers to sign non-compete provisions in employment contracts. The rule also would prevent employers from entering into new non-compete agreements with workers and require employers to rescind existing non-compete agreements. Non-compete provisions limit workers from leaving an employer to work for a competitor or starting a competing business after their employment ends. Most states have statutes that restrict or prohibit non-compete provisions. Except in states

The U.S. Court of Appeals for the Fourth Circuit has expanded its view of what a hostile work environment looks like and lowered the bar in terms of what a plaintiff must show to sufficiently allege a race-based hostile work environment claim under Title VII. Marie Laurent-Workman, an African American and former career civilian employee of the United States Army initially filed suit in U.S. District Court for the Eastern District of Virginia alleging multiple counts of discrimination, including on the

A number of states have enacted laws requiring consumer-like disclosures in certain commercial financing transactions. These state statutes resemble the Truth in Lending Act (TILA) in certain respects but apply only to commercial loans. TILA is a federal statute that applies to consumer loans and requires disclosures of credit terms in consumer credit transactions, credit that is offered for personal, family or household purposes. The Consumer Financial Protection Bureau (CFPB) is the federal regulatory body charged with, among other things,

We have reported on the wave of laws enacted and proposed in various states requiring consumer-like disclosures in commercial financing transactions. California, New York and Utah have enacted similar commercial finance disclosure laws (CFDLs) recently. California rules implementing its 2018 CFDL went into effect this month. Utah’s CFDL will apply to certain loans on and after Jan. 1. New York’s CFDL will not go into effect until after the current rulemaking is finalized. The New York Department of Financial Services

The U.S. Environmental Protection Agency (U.S. EPA) recently proposed to change annual chemical release reporting requirements for industrial facilities that manufacture, process or otherwise use even very small quantities of per- and polyfluroalkyl substances (PFAS). The U.S. EPA aims to designate PFAS as “chemicals of special concern” under the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. §11001 et seq. (1986) and the Pollution Prevention Act (PPA), 42 U.S.C. §13101 et seq. (1990). The practical consequence is to eliminate

The National Labor Relations Board issued a flurry of employee-friendly decisions last week, continuing its move away from the more employer-friendly rulings by the Trump Board and, in many cases, returning to or reaffirming, precedent developed during the Obama administration. The decisions came just before the end of Republican Member John Ring’s term. Going into the New Year, the Board now is composed of a 3-1 Democratic majority. Below is a summary of the Board’s decisions. Failure to Give Employees Certain

The National Labor Relations Board’s Los Angeles Regional Office (LA Regional Office) decided last week that the University of Southern California, the Pac-12 Conference and the National Collegiate Athletic Association (NCAA) are violating federal labor law by failing to treat student basketball and football players as employees. This move sets the stage for student athletes to unionize and may have broader implications for members of the NCAA. The LA Regional Office’s decision is not surprising given NLRB General Counsel Jennifer Abruzzo’s

The past year has brought many challenges, including those associated with rising inflation and cost-of-living increases. With such concerns top of mind, many states are increasing their required minimum wage rates. Employers should be aware of the following minimum wage increases set to take effect at the end of this year or in 2023. The increases discussed below do not cover tipped workers, other special classes of employees or those mandated by local law. Employers should review their current compensation

We summarized in July the status of ethylene oxide (EtO) federal regulation and litigation risks facing companies using EtO. Since then, two personal injury jury trials claiming damages from EtO exposure have concluded – one with a large plaintiff’s verdict, one for the defense. Both cases, tried in Cook County (Illinois) Circuit Court, claimed that EtO emissions harmed people who lived near Sterigenics’ now-closed Willowbrook, Illinois, commercial sterilization facility. These cases, among many other that have been filed, began in 2018

The National Labor Relations Board announced Tuesday that it was expressly expanding the scope of its traditional “make whole” remedy to require employers to compensate wrongfully terminated employees for all “direct or foreseeable pecuniary harm.” Historically, the Board’s remedy for unfair labor practices has been limited to lost wages and benefits; reinstatement to the employee’s former position or a substantially similar position; and, more recently, search-for-work and interim employment expenses incurred because of an unlawful discharge. Now, the Board also will

The National Labor Relations Board on Wednesday revived an Obama-era standard that will make it easier for unions to organize employees and win elections. In a 3-2 decision in American Steel Construction Inc., the Board resurrected the standard developed in a 2011 case called Specialty Healthcare for analyzing appropriate bargaining units. This framework applies when a union seeks to represent some – but not all – job classifications in a particular workplace and makes it easier for unions to organize

Earlier this year, the Southeast Crescent Regional Commission (SCRC), a federal-state partnership to alleviate economic and poverty issues, opened a J-1 waiver program, accepting applications for physicians of all medical specialties and subspecialties for positions at sites in designated underserved areas across the southeastern United States. This program significantly increases access to medical care in all of Florida and parts of Alabama, Georgia, Mississippi, North Carolina, South Carolina, and Virginia. Selection for a waiver spot is the first step to securing

When the weather outside is frightful, company holiday party season can be so delightful. The soirees are a great opportunity for colleagues to celebrate everyone’s hard work and get to know one another better. But the mixture of excitement, alcohol and the resulting lowered inhibitions can result in a legal headache for employers, who can be held vicariously liable for the actions of their staff. A determination of an employer’s liability for the conduct of its employees following the consumption of

Maryland voters earlier this month overwhelmingly supported a constitutional amendment to legalize recreational marijuana, joining 19 other states and the District of Columbia. (Missouri also approved legalization of recreational marijuana on Election Day.) While the voice of the electorate might not come as a surprise, the constitutional amendment may leave Maryland employers with more questions than answers. The passage of the amendment does not immediately impact employers but serves as an opportunity for them to evaluate their current drug testing

Under recent amendments to Montgomery County’s Energy Benchmarking and Performance Standards Law, residential and non-residential buildings in the County - including buildings in Rockville and Gaithersburg - that are 25,000 gross square feet (GSF) and greater must now benchmark and report building profile and energy data to the Montgomery County Department of Environmental Protection. Effective Aug. 1, 2022, these building types must begin reporting to the County per the following schedule: Non-Residential Buildings 25,000 to 50,000 GSF and previously exempted buildings such

With Election Day around the corner on Nov. 8, employers may be wondering if their employees are entitled to leave to vote and, if they are, whether it needs to be paid. Here is a breakdown of what is required in the DMV: Maryland Employers must provide employees who are registered voters two hours of paid leave if employees do not otherwise have two hours of continuous off-duty time to vote during the period that polls are open. An employee should provide

The Council of the District of Columbia passed the Ban on Non-Compete Agreements Amendment Act of 2020 (the “Act”), one of the strictest bans on employee non-compete agreements in the country, approximately two years ago. After several delays and modifications, the amended Act – aptly named the Non-Compete Clarification Amendment Act of 2022 (D.C. Act 24-526) – was signed into law July 27, 2022 and finally took effect Oct. 1, 2022. Unlike the original 2020 Act, which sought to impose

In recent years, employers adapted workplace policies and trainings to conform with changing state laws legalizing medical marijuana use. The landscape is continuing to evolve as many states have now prohibited adverse employment actions for employees’ recreational use of marijuana. New Jersey is one of those states. In February 2021, the New Jersey Cannabis Regulatory Enforcement Assistance, and Marketplace Modernization Act (the “Act”) legalized adult use of recreational marijuana which prohibits employers from taking adverse employment action solely based on

Today (October 13, 2022), the Department of Labor (“DOL”) issued a proposed rule that would provide guidance on classifying workers as employees or independent contractors under the Fair Labor Standards Act (the “FLSA”). The FLSA requires employers to pay non-exempt employees at least the federal minimum wage and overtime pay for all hours worked beyond 40 hours in a work week. The FLSA does not apply to independent contractors. In other words, this proposed rule would be a "practical guide"

On September 27, 2022, California Governor Gavin Newsom signed into law the Pay Transparency for Pay Equity Act, a new pay transparency law imposing increased payroll reporting requirements on large employers and placing additional requirements on employers of all sizes related to salary history inquiries and pay scale disclosures. What Does the Bill Require? Additional Pay Reporting Requirements for Large Employers The new law amends and imposes new payroll reporting requirements for large employers relating to workforce demographics and pay. Under existing law, private employers

The challenge posed to Department of Defense (DOD) contractors of complying with ever-shifting cybersecurity regulations and guidance continues unabated. On July 26, 2022, the Cyber Accreditation Body (Cyber AB) published a highly anticipated “Pre-Decisional Draft V1.0” of the Cybersecurity Maturity Model Certification (CMMC) Assessment Process (Draft CAP), which provides the procedures and guidance for CMMC Third-Party Assessment Organizations (C3PAOs) conducting official CMMC third-party assessments of organizations seeking certification (OSCs). The Cyber AB, formerly known as the CMMC Accreditation Body, is

In a recent decision, the Maryland Court of Appeals reversed lower rulings related to federal preemption of state law and Maryland’s educational malpractice doctrine. The ruling could have significant implications for students bringing negligence claims and educators defending against them. Case Facts and Procedural History Over the course of the 2016-2017 school year, Dorchester County sixth grader—referred to as “S.”—endured several instances of physical and verbal assault at the hands of classmates, resulting in varying injuries. When S. shared with her

The Maryland Department of Health (MDH) recently released its July 2022 Maryland Conrad 30 (J-1 Visa Waiver) Program Policy and Procedures. This policy is effective October 1, 2022 for the 2023 fiscal year. The Conrad 30 (J-1 Visa Waiver) program allows qualified foreign medical graduate (FMG) physicians to apply for a waiver of the 2-year foreign residence requirement. Recipients of a Conrad waiver remain in the United States to provide essential healthcare services in underserved areas of the United States. The

District of Columbia Mayor Muriel Bowser signed two significant pieces of legislation recently to build on the success of the Clean Energy DC Omnibus Act of 2018 and to further help transition the District to a new energy future. Both acts build on and accelerate the District of Columbia’s commitment to obtaining renewable energy and becoming a better environmental steward. The first piece of legislation is the Climate Commitment Act of 2022 (A24-0527) (the “Climate Commitment Act”). The Climate Commitment Act

On May 12, 2022, Governor Hogan signed several bills into law that will affect the formation, ownership and operation of business entities under Maryland law.  Below is a summary of the new laws. Most noteworthy is the creation of a statutory process for the ratification of defective corporate acts.  All changes will become effective on October 1, 2022. Ratification of Defective Corporate Acts During legal due diligence, it is not unusual to discover that a corporation has issued more stock than it had

On September 6, 2022, the National Labor Relations Board (“NLRB” or “Board”) issued a much anticipated proposed rule that would broaden the circumstances under which two companies may be held responsible for labor law violations and union bargaining obligations under federal labor law. The rule has the potential to create labor law obligations and liability for companies that contract with staffing agencies to supply their labor, as well as franchisors.   Two companies are joint employers if they “share or codetermine” employees’ essential

This week, the National Labor Relations Board (“NLRB” or “Board”) ruled that employers may not stop employees from wearing union insignia in the workplace without good reason. This decision, involving Tesla, Inc.’s dress code policy, is the first of what is sure to be a number of precedent-shifting decisions from Biden’s NLRB.  In a 3-2 decision, the Board reaffirmed longstanding U.S. Supreme Court precedent that employees have the right to display union insignia in the workplace, and held that when an employer

In a decision on July 13, 2022, Maryland’s highest court held that the federal Portal-to-Portal Act has not been adopted or incorporated into Maryland wage laws or regulations. As a result, “what constitutes ‘work’ under Maryland law is not limited to what is compensable work under the [federal] PPA and FLSA” and Maryland employers may be required to pay their employees additional wages for time spent under a broader state definition of work that is not otherwise compensable at the

October 1 in Maryland is the time when the leaves are changing, there is a chill in the air, and many of the Maryland General Assembly’s bills that were passed in April take effect. Two upcoming laws should be on employers’ radar: the expanded definitions of illegal harassment and reasonable accommodations for applicants with disabilities. 1. Definitions of Harassment and Sexual Harassment Have Expanded (SB450) Maryland’s antidiscrimination law will vastly expand the liability of employers under state law. Previously, the definition of “harassment”

A federal appeals court this week ruled that “gender dysphoria” qualifies as a disability under the Americans with Disabilities Act (“ADA”). This decision will give broader protection to transgender and other individuals seeking workplace and public accommodations for gender dysphoria.  The lawsuit  was brought by former inmate Kesha Williams, who sued a Virginia prison for violations of the ADA and other civil rights laws. Williams was born male but identifies as female. Prior to her incarceration, she was living as a woman for nearly 15

The Occupational Safety and Health Administration (“OSHA”) recently unveiled a new National Emphasis Program (“NEP”) for outdoor and indoor heat-related hazards. To best protect workers in hot working environments, particularly in a climate of ramped up enforcement, employers are wise to devote considerable attention to understanding heat-related hazards, appreciating OSHA’s planned expansion of heat-related inspections, and preparing workplaces in response to the rollout of the heightened enforcement program. Especially during a summer of record-breaking temperatures, it is never too late

On July 26, 2022, the Montgomery County Council unanimously passed ZTA 22-02, which allows for additional height and development flexibility for research and development (“R&D”) and medical/scientific manufacturing facilities in the Commercial Residential, Life Science Center, Employment Office, and Moderate Industrial zones. For qualifying properties, subject to Planning Board approval, the ZTA allows for additional height and flexibility for R&D and medical/scientific manufacturing facilities as follows: On properties where the maximum zoned height is 100 feet or less, building height for

In a stunning decision that has the potential to change the way independent private schools operate, a federal district judge recently ruled in Conrad v. Baltimore Lutheran High School Association d/b/a Concordia Preparatory School that an education institution’s § 501(c)(3) tax exemption constitutes “federal financial assistance” that brings private independent K-12 schools under the auspices of Title IX. To say that this decision is a “game changer” for private schools is an understatement, as the implications are wide and far-reaching. A similar

For those of you who may have missed this important update, Maryland law now requires employers with 15 or more employees to permit the use of existing accrued paid leave for bereavement purposes. Effective October 1, 2021, Maryland’s Flexible Leave Act (“MFLA”) was amended to allow employees to use paid leave for bereavement purposes related to the death of an immediate family member. For purposes of bereavement leave, “immediate family member” is broadly defined as the employee’s spouse, parent, or

Over the past year, we have reported on the new wave of laws enacted and proposed in various states requiring consumer-like disclosures in commercial financing transactions. These state laws are often titled “Commercial Finance Disclosure Laws.” New York and California are two states that have enacted similar CFDLs. Those laws will not go into effect until regulations are finalized. California recently published final implementing regulations on June 9, 2022, and it is anticipated that New York is not far behind.

More and more, employers have considered using surveillance within the workplace, whether it is to prevent theft, measure productivity, or simply monitor what employees are doing when they are on the clock. While these are legitimate business concerns, employers should be mindful of varying state laws on surveillance and an employee’s reasonable expectation of privacy.  An employer has a legitimate interest in maintaining an efficient and safe workplace operation. However, this interest is not without limitation. One aspect of that interest is

On June 14, 2022, the Montgomery County Council introduced ZTA 22-05, which proposes substantial revisions to Montgomery County’s Sign Ordinance. The intent of the ZTA is to remove inefficiencies from the sign review process and clarify the regulatory status of certain types of signs. Key changes proposed include: Allowing the Department of Permitting Services to approve changes to canopy signs without the need to amend the applicable Site Plan. Providing the Planning Board authority to approve residential entrance signs without further approvals

J-1 exchange visitors, often Foreign Medical Graduates ("FMGs"), who receive graduate medical education or training in the U.S. are subject to the two-year foreign residence requirement under Section 212(e) of the Immigration and Nationality Act ("INA"). This requirement means that, upon completion of medical training, the J-1 physician must return to their country of nationality (or country of last permanent residence) for a period of at least two years in the aggregate before becoming eligible for certain nonimmigrant work visas, such

On June 24, 2022, the U.S. Supreme Court decided Becerra v. Empire Health Foundation and resolved a split between the U.S. Courts of Appeal for the 6th, 9th and District of Columbia Circuits in favor of how the Department of Health and Human Services (“HHS”) determines disproportionate share hospital (“DSH”) payments. The Medicare program accounts for the costs incurred by hospitals that serve a higher proportion of low-income patients by making DSH payments to those hospitals. The Medicare program calculates the DSH payment

Our earlier blog post, “Companies Should Know Benefits and Risks of ESG Reporting,” provided an overview of the Environmental, Social and Governance (“ESG”) metrics, why these metrics are important to companies and shareholders, and what some of the risks are of reporting ESG goals and the results of ESG improvement initiatives. Not surprisingly, over the last few months, it has become even more apparent that ESG initiatives are not just a “flash in the pan.” Companies should treat ESG as

A recent change in Virginia law may impact many individual taxpayers. Effective for taxable years beginning on or after January 1, 2022, individual taxpayers who make estimated income tax payments must submit all payments electronically if: Any estimated tax payment exceeds $1,500; Any extension payment exceeds $1,500; or The total anticipated income tax liability in any taxable year exceeds $6,000. These requirements apply to all payments, including any payments for estimated taxes, extension payments, and any other amounts related to an individual return, made

In our earlier post, Public and Regulatory Attention to Forever Chemicals is at an All-Time High, we discussed the expected and upcoming regulation of per- and polyfluoroalkyl substances (“PFAS”). Another chemical expected to see further federal regulation and enforcement action that should be on the radar of many companies is ethylene oxide (EtO). EtO is a flammable, colorless gas that is used to sterilize equipment and products that cannot be otherwise sterilized using steam or extreme heat, such as medical components,

As is now well known both inside and outside of the legal community, the Supreme Court of the United States recently decided Dobbs v. Jackson Women’s Health Organization, where the Court analyzed a Mississippi law that restricted pre-viability abortions. The Supreme Court upheld the Mississippi statute and overturned the constitutional right to abortion established in the 1973 landmark case, Roe v. Wade. The Court emphasized that the precedent set in Roe and affirmed in Planned Parenthood v. Casey was “egregiously

In a significant regulatory change that will impact real property transactions and loan financings, the Maryland Department of the Environment (MDE) joins a handful of states that requires the reporting of historical petroleum contamination above applicable cleanup standards or action levels if discovered or detected while conducting environmental due diligence investigations. The revised regulation at COMAR 26.10.08.01.B took effect on June 13, 2022. The regulation now imposes upon the environmental consultant or person conducting an environmental site assessment and/or the owner of

On May 13, 2022, the Miles & Stockbridge Labor, Employment, Benefits & Immigration practice group presented its twentieth annual Hot Topics in Employment Law seminar to clients from throughout Maryland and beyond. Topics covered included remote work; tax issues, FMLA, and federal and state leave laws; and the myriad issues raised on a day-to-day basis with Human Resources professionals, including coronavirus and mental health concerns, and more. Here are some highlights: Hidden Dangers of Remote Work Meg Manchester presented the potential tax consequences

On May 4, 2022 a Temporary Final Rule (TFR) published by the US Citizenship and Immigration Service (USCIS) of the Department of Homeland Security (DHS) increased the automatic extension period for certain categories of work authorization to up to 540 days. This is a welcome relief for certain categories of foreign nationals who are at risk of losing work authorization due to USCIS’s processing delays.  Below is a summary of this important rule: Who: This rule applies to foreign nationals whose employment

The newly imposed deadline is fast approaching for Government Contractors required to develop annual Affirmative Action Plans (AAPs) to certify that they have in fact created such plans. Supply and service federal contractors and subcontractors who meet the designated jurisdictional thresholds for creating AAPs will need to register and certify by June 30, 2022 via the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) online Contractor Portal that they have created annual AAPs under all of the laws that

Per- and polyfluoroalkyl substances (“PFAS”) are everywhere these days. And not just in consumer products that we use every day or in drinking water and soils, but also in the news. This is because the science around PFAS tells us that these “forever chemicals” represent an emerging concern. The short-term and long-term risks are still being evaluated, but studies show that exposure at certain concentrations can be detrimental to human health and the environment. The evolution of laboratory techniques so

Maryland will join the nine states and the District of Columbia in enacting its own paid family and medical leave. Maryland Sen. Antonio L. Hayes (D-Baltimore City) and Del. Kris Valderrama (D-Prince George’s County) sponsored the Time to Care Act of 2022 (the “Act”).  On March 31, 2022, Senate Bill 275 (the Act) passed the legislature and was submitted to Governor Hogan, who ultimately vetoed the bill on April 8, 2022. However, on April 9, 2022, legislators in the Maryland General Assembly

Maryland will join the nine states and the District of Columbia in enacting its own paid family and medical leave. Maryland Sen. Antonio L. Hayes (D-Baltimore City) and Del. Kris Valderrama (D-Prince George’s County) sponsored the Time to Care Act of 2022 (the “Act”).  On March 31, 2022, Senate Bill 275 (the Act) passed the legislature and was submitted to Governor Hogan, who ultimately vetoed the bill on April 8, 2022. However, on April 9, 2022, legislators in the Maryland General Assembly

The Supreme Court has recently taken the challenge of assessing the scope and breadth of workplace arbitration provisions under the Federal Arbitration Act (“FAA”) in Viking River Cruises, Inc. v. Moriana, and Southwest Airlines Co. v. Saxon, both of which stand to have far-reaching impacts for employers seeking to resolve disputes with employees outside of court. The Viking River Cruises case involves a controversy between Viking and its employee Angie Moriana. Ms. Moriana signed an arbitration agreement in which she and

On March 24, 2022, Washington’s Silenced No More Act (formally known as Engrossed Substitute House Bill 1795) was signed into law by Governor Jay Inslee. As a result, Washington has become the second state to declare certain nondisclosure and nondisparagement provisions in employment and independent contractor agreements illegal. California passed its own version of the Silenced No More Act last year. The Washington Silenced No More Act is scheduled to take effect on June 9, 2022. Once enacted, the law will

U.S. Citizenship and Immigration Services (USCIS) published a final rule on March 30, 2022 that will increase access to its premium processing service, under which applicants for certain immigration benefits can obtain expedited processing by paying additional fees. Through the new rule, USCIS seeks to address the budget shortfalls, backlogs, and ever-increasing processing times that have plagued the agency and frustrated applicants, especially during the Covid-19 pandemic. USCIS intends to introduce the increased access to premium processing in the following

Mandatory arbitration agreements for all employment claims will no longer be enforceable under a newly passed law. On March 3, 2022, President Biden signed the Ending Forced Arbitration Act (the “Act”), which invalidates previously agreed upon arbitration clauses to resolve sexual harassment or sexual assault disputes, a bill that had previously passed with wide bipartisan support in the House and Senate. Now, regardless of when an arbitration agreement was signed, mandatory arbitration will not be enforced for claims that arise

On February 24, 2022, the Fourth Circuit restored a $1,186,975.00 arbitration award for a North Carolina securities wholesaler (“Warfield”) who alleged that his former employer ICON Advisers Inc. (“ICON”) unlawfully fired him without cause. Warfield v. Icon Advisers, Inc., No. 20-1690, __ F.4th__, 2022 WL 552029, (4th Cir. Feb. 24, 2022). North Carolina, like most states in the United States, is an at-will employment jurisdiction. At-will employment means that an employer can terminate an employee at any time for any

Last month, we reported on Maryland Senate Bill 825 and its companion House Bill 1211. The Senate Committee on Finance recently proposed material changes to Senate Bill 825, and the bill passed the Senate as modified. House Bill 1211 has since been withdrawn. As introduced, Senate Bill 825 titled “Consumer Credit – Commercial Financing Transactions” contains legislation substantially similar to the Commercial Finance Disclosure Law (CFDL) passed in New York last year. (N.Y. Fin. Serv. Law § 801 et seq.). Patterned

It is standard practice today for real property purchasers to conduct an Environmental Phase I Environmental Site Assessment (“Phase I ESA”) or otherwise satisfy the All Appropriate Inquiries (“AAI”) requirement “in accordance with generally accepted good commercial and customary standards and practices” prior to completing a property transaction. Fulfilling the AAI requirement helps real property purchasers to qualify for certain defenses to liability for cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) as a contiguous, bona

The rise in demand for clean and renewable energy is driving the need for available rooftop space to employ solar energy systems. Because development costs have drastically decreased and the regulatory climate has become even more favorable over the last few years, we have seen a significant increase in commercial building owners and energy developers seeking ways to access and utilize solar energy resources. This can be accomplished in a variety of ways. The most traditional model is for property owners

Spent lead ammunition at outdoor shooting ranges remains a significant environmental topic, as accumulated lead can pose a threat to human health and the environment if best management practices are not implemented in a timely fashion to minimize the impact. Lead contamination is a known issue in the shooting community, remains an issue at ranges in many states, and has resulted in several recent major, sometimes multi-million dollar, remediation efforts. In 2021, the owners and operators of a Maryland shooting

You may have heard the term “ESG” before. It has been used with increasing frequency for a few years, but the term and ESG-minded business practices have gained more traction over the last year or so. ESG stands for three factors—environmental, social, and governance. The ESG factors can be broken down to a set of non-financial metrics and standards that a company’s operations try to achieve and that socially conscious investors use as a framework to identify material risks and

Highlights This Miles & Stockbridge alert provides a summary of the latest sanctions and developments regarding the ongoing situation in Ukraine. In response to Russia’s continued war operations and military attacks throughout Ukraine, the U.S. government and its allies imposed many more sanctions and new export control restrictions in the past week, specifically targeting Russian financial institutions, Russian state-owned enterprises, Russian elites,  and several of Russia's critical industrial sectors. In response to the Russian invasion and continued war operations throughout Ukraine, the U.S.

This is an update to our prior blog posts regarding Federal and Maryland State tax deadlines. The Comptroller recently announced that Maryland individual taxpayers who pay estimated quarterly taxes may defer payments for the first and second quarters of tax year 2022 until July 15, 2022. This announcement aligns with the Comptroller’s earlier announcement extending the State’s individual income tax filing and payment deadline for tax year 2021 to July 15, 2022. Details regarding the State’s automatic extension for filing 2021

Yesterday (February 24th) as part of the broader response to Russia’s invasion of Ukraine – the White House announced strict export controls as part of the Biden Administration’s strategy to “squeeze Russia’s access to finance and technology for strategic sectors of its economy for years to come.” (President Biden’s remarks are found here.)  Those controls are part of a Final Rule “Implementation of Sanctions Against Russia Under the Export Administration Regulations (EAR)” (unpublished PDF version is found here) which, although

Earlier this month, Maryland State Senator Benjamin K. Kramer introduced Senate Bill 825 titled “Consumer Credit – Commercial Financing Transactions.”  Although not obvious from the bill’s title, it contains legislation substantially similar to the Commercial Finance Disclosure Law (CFDL) passed in New York last year. (N.Y. Fin. Serv. Law § 801 et seq.).  Patterned after New York’s CFDL, the Senate proposal would require certain providers of commercial financings to disclose consumer-like loan information, similar to certain federal Truth-in–Lending Act disclosures

(Click here to read about revisions for 2023.) On January 21, 2022, the Federal Trade Commission (“FTC”) announced the annual revisions to the applicable thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”). These revisions were published in the Federal Register on January 24, 2022 and will apply to all transactions closing on or after February 23, 2022. The new minimum size of transaction threshold has been adjusted upward from $92 million to $101 million. Under the

Federal supply and service contractors and subcontractors have long been required to create and maintain written affirmative action plans (“AAP”) if they meet certain contracting thresholds. Unless and until a contractor was audited by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”), however, there was no real mechanism for the government to confirm that contractors were in compliance with these obligations. Even though contractors are required to certify compliance in order to contract, OFCCP’s experience through

Nearly one year ago to the date, I wrote in my blog post that the “the path to qualifying in [for the O-1A visa classification] is far from transparent.” At that time, I noted that the request for evidence (“RFE”) rate was on an upward swing in this temporary, non-immigrant visa classification. Today, we are pleased to discuss the Biden Administration’s recent steps to increase clarity and predictability for foreign nationals seeking this classification, with a focus upon those in

On November 17, 2021, DoD published a notice of proposed rulemaking in the Federal Register, which formally announced the launching of the Cybersecurity Maturity Model Certification (CMMC) 2.0 framework. Among other things, version 2.0 streamlines the framework from 5 levels to 3 levels, scales back the requirement that all 300,000 contractors within the defense industrial base (DIB) obtain third party certification, and provides DoD additional flexibility by allowing for the limited use of Plans of Action & Milestones (POA&Ms) and

The federal False Claims Act results in a host of interesting relator claims. This one caught my eye. In United States of America v. Intermountain Healthcare, Inc., Case No. 2:20-cv-00372-TC-CMR (U.S. Dist. Ct. D. Utah 1/28/2022), the relator alleged that anesthesiologists participating in his medical group often spent time during surgeries playing on their phones or other personal electronic devices. Some allegedly watched football, others paid bills. Naturally, the relator alleged that the anesthesiologists were not paying attention to their

Medical providers often are left confused by the incredibly complex statutory and regulatory body of law implemented by the Centers for Medicare and Medicaid Services (CMS). Without further administrative guidance, providers are left to their own conclusions with regard to what CMS intended. Unfortunately, sometimes these decisions lead to expensive and time-consuming False Claims Act litigation brought by relators, who disagree with the provider’s interpretation. In a recent decision, the Fourth Circuit offers some well-deserved protection from False Claims Act actions

Federal Corporate and Individual Income Tax Deadlines The federal filing deadline for 2021 for calendar year end corporate income tax returns (IRS Form 1120) and individual income tax returns (IRS Form 1040) is Monday, April 18, 2022 for most taxpayers. This is a result of Washington D.C.’s Emancipation Day holiday on April 15th. By law, for tax deadline purposes, the IRS recognizes the District of Columbia’s legal observation of holidays in the same manner as federal holidays. For those taxpayers who

In late 2020, the IRS issued a notice confirming imminent proposed regulations that would allow certain tax strategies to avoid the individual $10,000 state and local tax (“SALT”) deduction limitation of the Tax Cuts and Jobs Act (“TCJA”, P.L. 115-97 (Dec. 22, 2017)). (Notice 2020-75). This notice cited a 1958 revenue ruling that allowed a partnership to subtract a local tax in calculating its net income to its partners, thereby holding that partners who use the standard deduction without itemizing

We reported last year on New York’s newly enacted commercial finance disclosure law and the legislature’s quick pivot thereafter, expanding the law’s reach to all loans up to $2,500,000 - a change from the previous limitation of $500,000. As we discussed in our prior post, the commercial finance disclosure law (CFDL) requires certain providers of commercial financings to disclose consumer-like loan information, similar to certain federal Truth-in–Lending Act disclosures that are made to consumers in consumer loans. Since our last report,

Why Maryland Collectors of Consumer Debts Need to Be Concerned About Convenience Fees A recent Fourth Circuit Court of Appeals decision may have sweeping implications across the consumer debt collection industry in Maryland. In Alexander v. Carrington Mortgage Services, LLC, the Fourth Circuit held that a mortgage loan servicing company violated the Maryland Consumer Debt Collection Act and the Maryland Consumer Protection Act by charging debtors a convenience fee for making a one-time payment online or by phone, when the agreement

When can a data breach can get worse? When the process of notifying victims creates a second breach. Take the example of a cancer treatment center that recently paid $425,000 to settle allegations that included a faulty notification process following a breach. The story provides an important lesson. One Breach Leads to Another It began with a spear phishing attack. Employees at the facility fell victim to the attack and their email accounts were compromised. The result: protected health information and other

As we reported last year, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), among other things, required the Consumer Financial Protection Bureau (CFPB) to adopt regulations governing the collection of certain small business lending data. Section 1071 of the Dodd-Frank Act amended the Equal Credit Opportunity Act (ECOA), as follows: “in the case of any application to a financial institution for credit for [a] women-owned, minority-owned, or small business, the financial institution shall – (1) inquire whether

On January 19, 2022, Maryland Comptroller Peter Franchot announced an extension for the State’s individual income tax filing and payment deadline for tax year ending 2021. The announcement was made via a virtual news conference with a news release following shortly thereafter. Instead of tax filings and payments being due on April 18, 2022, the new automatic deadline is July 15, 2022. Taxpayers will not need to request an extension; instead both resident and nonresident taxpayers shall receive the automatic

After hearing oral argument on January 7, 2022, on January 14, 2022, the Supreme Court issued a  ruling staying the Biden administration’s vaccine or testing mandate for large employers. As many doubtless know, on September 9, 2021, the Biden administration announced a sweeping six-pronged plan aimed at addressing the pandemic, which included a requirement that all employers with 100 or more employees have their employees vaccinated or tested weekly for COVID-19. In setting forth his plan, the president charged the Occupational Safety and Health

It happens so often. An individual voluntarily talks with law enforcement agents in an effort to appear cooperative, but the prosecutor later labels the statements as incriminating “admissions.” Whether made before or after arrest, such statements prove compelling evidence. For example, during a recent trial, the prosecutor successfully argued to the jury that a Harvard professor unquestionably made false statements to government agencies because “the defendant himself has said that he did” during an interview. Example of the Harvard Professor Federal agents

What You Need to Know The injunction on the ETS has been lifted and the rules are currently in effect OSHA has offered a brief non-enforcement holiday for violations OSHA will not enforce regulations until January 10 OSHA will not issue citations for employers taking good faith steps to get into compliance prior to February 9 Petition for a further stay has been filed with the SCOTUS Friday evening, the 6th U.S. Circuit Court of Appeals delivered a welcome decision to the Biden Administration and dissolved

With the new collection agency rule of the Consumer Financial Protection Bureau (“CFPB”) having taken effect on November 30, 2021,1 we thought we could help round out your understanding of the collection agency laws by providing an overview of the licensing of collection agencies by the states. Every state does not license, register, issue permits, or require some kind of “approval-related filing” (herein, a “license”) for collection agencies. Thirty-four states now license collection agencies, with California being the newest state to license

On November 15, 2021 (the “Effective Date”), President Biden signed into law the Infrastructure Investment and Jobs Act (the “Act”) to invest in our nation’s infrastructure and competitiveness.  The federal government regularly passes transportation bills to fund traditional road, bridge, and mass transit projects. However, the Act dwarfs those efforts in size, at over one trillion dollars, and redefines infrastructure for the modern era.  Climate change heavily influences the spending guidelines of the Act due to its undeniably large impact on

Updates and negotiations for President Biden’s tax plan continue to filter through Congress. The House Ways and Means Committee recently passed the Build Back Better Act (the “Act”), and it is now on its way for the Senate’s consideration. This is an update to our prior blog post about the tax plan released by House Democrats in September. We have noted the differences between the two proposals accordingly. Corporate Tax Provisions Corporate AMT. The Act imposes a 15% alternative minimum tax on the

On November 12, 2021, Stephanie Baron, Kirsten Eriksson, Suzzanne Decker, Veronica Jackson, and Paolo Pasicolan of Miles & Stockbridge’s Labor, Employment, Benefits, & Immigration Practice presented a webinar about the OSHA’s recent Emergency Temporary Standard (“ETS”). Here’s what you missed if you were unable to attend: Challenges to OSHA’s ETS As you may have heard in the news, there have already been several challenges to the legality of the ETS. The 5th Circuit issued a temporary injunction against enforcement of the ETS,

On October 25, 2021, the Equal Employment Opportunity Commission (EEOC) issued guidance for employers and employees regarding religious objections to COVID-19 Vaccine Mandates. With many employers implementing COVID-19 vaccine requirements, (discussed in our October 8, 2021 blog post), employees may be requesting religious accommodations. As such, this updated guidance is helpful for employers seeking to ensure compliance with Title VII. Title VII, in part, prohibits employment discrimination based on religion. This includes a right for job applicants and employees to request

On November 4, 2021, the U.S. Department of Defense (DoD) Office of the Under Secretary of Defense for Acquisition and Sustainment (OUSD(A&S)) announced Version 2.0 of the highly publicized Cybersecurity Maturity Model Certification (CMMC). This updated version seeks to simplify the model and reduce compliance costs by streamlining the program and scaling back the requirement that all defense contractors obtain third-party certification of their cybersecurity capabilities. Under CMMC 2.0, contractors at the lower CMMC levels will be allowed to self-certify.

After much anticipation, on November 4, 2021, the Occupational Safety and Health Administration (OSHA), issued its long-awaited Emergency Temporary Standard (ETS), requiring mandatory COVID-19 vaccination or weekly testing for private employers with 100 or more employees. Shortly after the ETS was issued, a lawsuit was filed to enjoin the enactment and enforcement of the ETS.  The Fifth Circuit Court of Appeals ruled to temporarily enjoin the ETS.  As the case proceeds employers should keep watch for updates.  In the interim, we

On October 12, 2021, the Occupational Safety and Health Administration (OSHA) delivered a draft of the emergency temporary standard (ETS) requiring COVID-19 vaccination or weekly testing of workers for private employers with 100 or more employees to the White House for final review and approval. The ETS is being issued in response to President Biden’s six-pronged Action Plan, announced on September 9, 2021, aimed at addressing the nation’s most recent surge of coronavirus cases. As part of his Action Plan, Biden specifically

The Department of Justice (DOJ) recently overturned the prior administration’s limitations on the use of regulatory guidance in False Claims Act (FCA) litigation. Now, DOJ attorneys may rely on guidance documents “in any appropriate and lawful circumstances.” How should compliance programs respond to the resurgence of the regulators in the ongoing FCA wars? Background Former Attorney General Jeff Sessions initiated the limitation on the use of regulatory guidance in the prior administration with his Memo dated November 16, 2017. His mandate prohibited “Improper Guidance

In the absence of a federal law requiring disclosures be provided to small businesses, regulators in California in 2018, and now New York, have jumped into the void. With the Enactment of the New York Commercial Finance Disclosure Law (“CFDL”) on December 24, 2020, New York regulators have moved forward to propose certain disclosure regulations for those providing commercial financing to small businesses. In one of her first actions upon assuming her position, the Acting Superintendent of the New York

As an employer, you might be thinking about implementing a mandatory vaccine policy for your workforce. There are many issues to consider when developing a mandatory vaccine policy, and it is hard to keep up with fast-developing federal, state, and local requirements. Before putting a policy into place, what are some of most pressing issues that you should be thinking about? State Law Considerations It is important to consider the state(s) where you have employees. Several states, including Florida and Texas, passed

On September 24, 2021, the Safer Federal Workforce Task Force issued COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (the “Guidance”). This highly anticipated Guidance outlines the Covid-19 protocols for government contractors that were announced on September 9 in Executive Order 14042 (Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors) (“Order”), which was covered in a recent M&S Industry Alert. These new protocols will be enforced through a contract clause that must be included in all

The Maryland Court of Special Appeals held on September 7, 2021 that Maryland public school teachers cannot be held liable in negligence for the injuries of students under their supervision at the hands of other misbehaving students. Gambrill v. Board of Dorchester County, et al., No. 0886, September Term 2019 (September 7, 2021). The Court upheld the trial court’s summary judgment decision in favor of the Board of Education of Dorcester County related to the treatment of a sixth grade

Update (October 26, 2021): The Biden Administration has announced that the vaccination requirement for international travelers to the United States described in this post will go into effect on November 8, 2021. The vaccination requirement will apply to travelers arriving both at airports and land border crossings. Limited exceptions will apply, most notably for children under 18 years of age. The Biden administration has announced that it will lift current regional pandemic-related travel restrictions on foreign nationals in early November. The

Big tax changes are on the way! President Biden, the House, and the Senate all seem to have their own agenda, but the proposal introduced by the House Ways and Means Committee (the “Proposal”) is a good starting point for predicting what may be in our future. Corporate and Business Tax Reforms Corporate Tax Rate: One of the Proposal’s most prominent provisions is a graduated rate structure for the currently flat 21% corporate income tax. Effective for taxable years beginning after December

Last month, the California Department of Financial Protection and Innovation (the "DFPI") published a notice inviting comments for its second rulemaking regarding the rules that will be promulgated under the new California Debt Collection Licensing Act (the "DCLA"). The DCLA was enacted pursuant to Senate Bill 908, and will become operative on January 1, 2022. Although the DFPI has not yet promulgated rules for the DCLA, the DFPI has started to accept applications for a debt collector license. With California joining

On September 9, 2021, President Biden issued an Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (“Order”). The Order seeks to “promote economy and efficiency in procurement” by requiring compliance with new COVID-19 protocols, which will be announced on September 24. The Order was issued on the same day as the President’s widely-covered speech announcing vaccine mandates for federal employees and businesses with 100 or more employees (see companion blog post, available here). Accordingly, although the Order

On September 9, 2021, President Biden announced a sweeping six-pronged plan aimed at addressing the nation’s most recent surge of coronavirus cases fueled by the formidable delta variant. As part of that plan, Biden declared expansive measures, including vaccine mandates that are projected to impact over eighty-million employees in private sector businesses, and have far reaching impacts for employers across multiple industries. As such, employers should be mindful of the following policies to be implemented under Biden’s Action Plan in

Whistleblowers who report perceived illegal activity by an individual, agency, or organization have long been heralded as heroes, serving both the public and private sectors by producing evidence of wrongdoing despite great personal risk. Accordingly, whistleblowers are afforded heightened protections that prohibit an employer from retaliating against an employee for reporting alleged wrongdoing. However, a recent decision from the D.C. Circuit demonstrates that whistleblowers are not shielded by a super power of invincibility.  Any adverse action taken by an employer against

J-1 exchange visitors who received graduate medical education or training in the U.S. are subject to the two-year foreign residence requirement under Section 212(e) of the Immigration and Nationality Act (INA).  This requirement means that, upon completion of medical training, the J-1 physician must return to his/her home country (or country of last permanent residence) for a period of at least two years in the aggregate before being eligible for certain nonimmigrant work visas, such as H-1B, or legal permanent

It’s no secret that the Health Insurance Portability and Accountability Act of 1996 (HIPAA) exists to protect the privacy of patients and their sensitive health information. However, understanding the importance of HIPAA compliance and the potential consequences of violations also can help protect the health care providers who care for them. With this in mind, we are pleased to share a recap of five key areas important for health care providers of all shapes and sizes. The HIPAA Security Rule places

Effective July 1, 2021 Virginia employers became subject to a new state overtime law: the Virginia Overtime Wage Act (VOWA) that makes overtime violations and employee misclassifications more costly for employers than the federal Fair Labor Standards Act (FLSA). Like the FLSA, the new Virginia law obligates employers to pay 1.5 times a non-exempt employee’s regular rate of pay for all hours worked in excess of 40 hours in each workweek. However, the VOWA is more onerous on employers (and

On August 13, 2021, the Occupational Safety and Health Administration (OSHA) updated its “Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” The guidance was originally released on January 29, 2021, and was updated once previously on June 10, 2021. The new OSHA guidance follows the U.S. Centers for Disease Control and Prevention’s (CDC) recent update to the “Interim Public Health Recommendations for Fully Vaccinated People,” which encourages fully-vaccinated people to wear masks in all “public indoor

Well, summer is more than half over, and although the initial pandemic has nearly run its course, a new COVID variant appears to be on the rise. Before we hunker down and mask up to fight off this stronger DELTA version of COVID, we urge the mortgage finance community and state regulators to permanently apply the valuable lessons learned from the initial COVID convergence and allow licensed mortgage loan originators (“MLOs”), under proper conditions and safeguards, to originate residential mortgage

In March of 2021, China’s most important annual political meetings took place as thousands of delegates to the National People’s Congress (NPC), the national legislature, and the Chinese People’s Political Consultative Conference (CPPCC), the top political advisory body, convened for a week at the Great Hall of the People in Beijing. Commonly known as the lianghui – or “Two Sessions” – this year’s elite gatherings in Beijing were particularly significant. The Chinese leadership not only set the national socio-economic and

On July 9, 2021, President Biden executed a broad Executive Order 14036 (“EO”) entitled Promoting Competition in the American Economy. Among other things, the EO will potentially have a great impact upon non-compete agreements. According to the Fact Sheet explaining the EO, the EO is designed to “promote competition in the American economy, which will lower prices for families, increase wages for workers, and promote innovation and even faster economic growth.” In terms of non-compete clauses, the EO is designed to make

The COVID-19 pandemic changed the way many employers view remote work. Those who had a positive experience may be considering making telecommuting a permanent part of their workplace, but must be aware of the dangers lurking for employers who fail to take into consideration employment and tax compliance associated with remote work. Many states have overlooked temporary remote arrangements necessitated by the pandemic, but will not excuse compliance if remote work continues going forward. Many aspects of the employment relationship are

On July 9, 2021, President Biden executed an Executive Order (EO) on Promoting Competition in the American Economy. This EO impacts the Intellectual Property (IP) transactions and portfolios as discussed below. The EO directly mentions the information technology sector, the prescription drugs/healthcare sector, and the telecommunications sector as being in need of additional regulation. The EO states that the: information technology sector has long been an engine of innovation and growth, but today a small number of dominant Internet platforms use their

The deadline for employers to submit and certify 2019 and 2020 EEO-1 Component 1 Data to the Equal Employment Opportunity Commission (EEOC) is Monday, August 23, 2021. Covered employers therefore have a little over one month to complete and submit an EEO-1 Report containing their respective workforce data in accordance with the reporting requirement. The original deadline of July 19, 2021 was extended to August 23 by the EEOC in late June 2021. What is required? Pursuant to Title VII of the

On July 01, 2021, the United States Patent and Trademark Office (USPTO) published a Notice requiring prophetic examples and working examples to be distinguished, at least, by using different tense in order to satisfy the written description and enablement requirements and comply with Applicant’s duty of disclosure. 1. What’s the difference between prophetic examples and working examples? Prophetic examples are experiments that Applicant described in a patent application but did not actually conducted. Therefore, the results described in prophetic examples are predicted

After more than a year of widespread unemployment, 2021 summer travelers saw establishments of all kinds advertising employment openings. With the expiration of pandemic-related federal and state unemployment benefits, many workers are returning to work. On July 2, the Bureau of Labor Statistics reported that employment is up. The jobs report tells us that the U.S. added 850,000 jobs in June, the largest increase in 10 months, though unemployment remains higher than normal at 5.9%. With pandemic restrictions mostly gone

Since vaccines have become readily available, employers have been grappling with whether they should mandate vaccines for employees. Most companies have chosen to “strongly encourage” employees instead of mandating, and many companies have even provided incentives such as gift cards or additional benefits as one way to encourage vaccinations. Earlier this year, one Texas employer, Houston Methodist Hospital, however, established a mandatory vaccination policy. In opposition to the mandatory policy, over one hundred employees of the hospital sued, alleging that the

On June 21, 2021, the Occupational Safety and Health Administration (“OSHA”) published its first mandatory COVID-19 workplace safety rule, which as discussed below, also includes a surprising paid leave component for vaccination, vaccination side effects, and employees that contract COVID-19. The long-awaited Emergency Temporary Standard (“ETS”) applies only to employers in certain healthcare-related work settings and is the first time since the start of the pandemic that OSHA has imposed regulatory requirements relating to COVID-19 workplace safety.  Before the issuance

In my last post, “Real Estate Alphabet Soup: Y Is for Yard”, I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” and completes the recipe with the final ingredient, the letter Z. I once heard a marketing consultant suggest that everyone should have a brief “elevator speech” for responding to inquiries about what you do for a profession and, in my case, what areas of law I practice. So my short

In February, we outlined some immediate and anticipated changes in the business immigration environment after the Biden Administration took office. Now that several months have passed and the Administration has had time to implement its policies, it is worth revisiting these issues. Regulatory Changes In its waning days, the Trump Administration introduced a number of regulations that would have restricted employment-based immigration programs in various ways. Upon taking office, the Biden Administration instituted a 60-day freeze on all pending and proposed regulations,

Under federal law, all employers (including public, private, government and not-for–profit employers, and employment agencies) are required to report certain data about new employees hired within 20 days of the employee commencing work to the National Directory of New Hires (NDNH). No business is exempt from reporting. Employers must also report re-hires or employees who return to work after 60 days of being laid off, furloughed, separated, granted a leave without pay or terminated from employment. The goals of new-hire reporting

In early 2021, pursuant to INA § 212(f) the President of the United States issued a proclamation continuing the suspension of entry of certain travelers located abroad in an effort to control the spread of COVID (the “novel coronavirus” or “COVID-19”). We have previously discussed COVID-related travel and visa issuance restrictions issued in 2020 here (IV ban) and here (NIV ban). The landscape of restrictions has changed dramatically over the last 16 months. At this time, there are multiple COVID-related geographic

On May 6, 2021, in a much-anticipated move, the Biden Administration announced a final rule withdrawing the employer-friendly independent contractor test published in the last few weeks of Donald Trump’s presidency. The withdrawal is effective immediately. As discussed here, defining workers as employees versus independent contractors under the Fair Labor Standards Act (“FLSA”) can have significant implications on employers. The FLSA requires that employers provide minimum wage and overtime pay to employees, whereas independent contractors enjoy no entitlement to same.

There’s a legal answer and a practical one. Because we’re lawyers, let’s start with the legal answer. Yes, an employer can offer employees incentives to get vaccinated. But doing so potentially creates a wellness program. And wellness programs are subject to several federal laws—HIPAA, the ADA, and GINA, and possibly Title VII (religious discrimination) and the FLSA—which make legal compliance tricky. Under HIPAA, a vaccine incentive is likely to be considered a health-contingent wellness program. This kind of program is required to,

In my last post, “Real Estate Alphabet Soup: X Is for X-factor” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter Y. Y is for “Yard.”  Not a “yard” in the sense of a precise linear measurement, but rather, a “yard” in the sense of the open area situated around buildings and structures. Although, of course, there are precise measurements required to determine the location, boundaries and area

On April 27, 2021 President Biden issued an executive order requiring federal contractors and subcontractors to pay a $15 minimum wage to workers on federal contracts and to federal contract workers with disabilities, and directing the incremental elimination of the tipped sub-minimum wage for federal contractors by 2024. When the New Minimum Wage Goes into Effect Starting January 30, 2022 all federal agencies will need to include a $15 minimum wage in new contract solicitations, and the new minimum wage must be

A recent federal appeals decision is sending shockwaves throughout the financial services sector. In Hunstein v. Preferred Collection & Mgmt. Services, Inc., the Court of Appeals for the Eleventh Circuit held that, under the federal Fair Debt Collection Practices Act (FDCPA), businesses and individuals operating as “debt collectors” are prohibited from communicating debtor information to third-party service providers and vendors (such as mail processors) hired to send dunning correspondence or other communications “in connection with the collection of any debt.” In

On March 9, 2021, the United States District Court, Northern District of California issued a ruling in Handloser v. HCL Technologies Ltd., 19-cv-01242-LKH, 2021 WL 879802 (Mar. 9, 2021), applying the 2011 Supreme Court standard established in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011), for individuals to properly assert a Rule 23 class for Title VII of the Civil Rights Act of 1964 discrimination claims. The named plaintiffs filed their complaint against HCL Technologies Ltd., an Indian consulting

The Supreme Court’s latest personal jurisdiction opinion – Ford Motor Co. v. Montana Eighth Judicial District Court – seems to raise more questions than answers regarding the contours of specific jurisdiction. A curious result, given the eight-member panel 1 unanimously agreed that Ford was subject to specific jurisdiction in the forums – Montana and Minnesota – where the underlying suits were filed. Writing for the five-member majority, Justice Kagan reached this conclusion by recognizing that specific jurisdiction may exist where a defendant’s

Under the American Rescue Plan Act of 2021 (ARPA), which was passed by Congress on March 11, 2021, the cost of health insurance coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) is fully subsidized from April 1, 2021 until September 30, 2021 for individuals who lost their health coverage due to an involuntarily termination or a reduction in hours. The ARPA requires employers to notify eligible individuals about the new COBRA subsidy by May 31, 2021.

One of the best-known features of bankruptcy law is the automatic stay, which prevents a variety of actions to collect debts and to take possession or control of anything considered “property of the estate.” However, one thing that may not be considered property of the bankruptcy estate is the S-corporation (“S-corp”) status of a corporate debtor. Although at least two Bankruptcy Appellate Panels have found that the S-corp status of a debtor is property of the bankruptcy estate, the Third

The Office of Inspector General (OIG) and the Centers for Medicare & Medicaid Services (CMS) jointly published final rules that expand upon and modify regulatory safe harbors and exceptions to the Anti-Kickback Statute and the Ethics in Patient Referrals Act (the Stark law), respectively. This article will address each rule and focus on the exceptions and safe harbors applicable to value-based arrangements. Stark Law Final Rule: Value-Based Arrangements The Stark law prohibits physicians from referring patients to receive certain designated health services

In my last post, “Real Estate Alphabet Soup: W is for Warranties” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter X. I knew when I started to stir up this “alphabet soup” that the letter X would prove to be a challenging ingredient to mix into the soup. And now that I have reached this step in the recipe, that challenge still stands, but I’ll do my

In March, we reported on a new law enacted in New York at the end of last year, Senate Bill 5470-B that imposes certain Truth-in-Lending Act modeled disclosure obligations on those making or brokering certain commercial loans of $500,000 or less. We also reported on the existing New York Licensed Lenders Law that imposes a licensing obligation to make commercial loans of $50,000 or less with an annual interest rate in excess of 16 percent. We further indicated that we

As various COVID-19 vaccines become more readily available, employers continue to struggle to address issues relating to the impact of a vaccine on their workplaces.  Real legal and practical risks remain for unwary employers.  In recent surveys, only a small percentage of employers are currently planning to mandate a vaccine for employees to return to work; a much higher percentage intend to encourage or incentivize vaccination; but many are still working on their plan.  This four-part blog post addresses some

The Small Business Restructuring Act of 2019, Pub. L. 116-54, 133 Stat. 1079 (Aug. 23, 2019) (“SBRA”) became effective February 19, 2020.  SBRA, among other things, created a new Subchapter V under Chapter 11 of Title 11 of the United States Code, designed to provide business debtors a more streamlined bankruptcy process for reorganization.  The streamlined process was expected to reduce the time and expense of small business reorganizations when compared to the current Chapter 11 process.  Subchapter V is

The question of whether a state mortgage finance licensing obligation arises to acquire and hold mortgage loans or mortgage loan servicing rights has often generated confusion and raised questions among mortgage finance companies buying residential mortgage loans or mortgage servicing rights. Such uncertainty as to whether a state’s mortgage lender or servicer law applies to license such activities is also shared by certain state regulators. Based on our analysis, few state mortgage finance licensing laws expressly extend the licensing obligation to purchase,

On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (ARPA, or the “Act”), which created certain additional benefits for employees about which employers should be aware. Extension of FFRCA Credits The Families First Coronavirus Response Act (FFCRA), originally passed into law on March 14, 2020, required companies with fewer than 500 employees to provide paid leave to employees who were unable to come to work for a number of COVID-19 related reasons. Employers were then entitled to

The American Rescue Plan Act of 2021, signed on March 11, 2021, requires employers to fully subsidize COBRA for certain eligible individuals. Eligible individuals consist of employees and their spouses and dependents who lost coverage in November 2019 or later due to the employee’s involuntary termination of employment (other than for gross misconduct) or reduction of hours. No subsidy is required for employees who voluntarily terminate employment or those who become eligible for Medicare or other employer’s group health plan. Employers

On March 12, 2021, the Occupational Safety and Health Administration issued a National Emphasis Program (“NEP”), signaling a renewed focus on COVID-19 under the Biden Administration. A NEP is a temporary program that focuses OSHA's resources on particular hazards and high-hazard industries based on an evaluation of inspection data, injury and illness data, National Institute for Occupational Safety and Health (NIOSH) reports, peer-reviewed literature, inspection findings, and other available information sources. The recently issued NEP is viewed as a response to

On March 9, 2021, the House of Representatives passed the PRO Act by a vote of 225 – 206. It now heads to the Senate. The Act’s fate in the Senate is uncertain; however, President Biden has voiced his support for the bill. The PRO Act, if passed, would make sweeping changes to the National Labor Relations Act (NLRA) and tilt the playing field decidedly in favor of organized labor. One area of significant change is with regard to the coverage

To date, the licensing and disclosure obligations for lenders and brokers of commercial loans, (including commercial mortgage loans and non-real estate-secured commercial or business purpose loans) have not received the attention of most state legislators or regulators. Few states impose a licensing obligation to make any type of commercial loans1 and there are no state laws that impose significant disclosure obligations to make commercial loans but that may be changing in 2021. As California and New York lead the way

Earlier this week, the Center for Medicare & Medicaid Services (CMS) revised its previous guidance concerning nursing home visits, and—in much welcome news to residents and their loved ones—is instructing nursing homes to allow indoor visits effective March 10, 2021. Because the population of nursing homes is particularly at risk for COVID-19 infection, CMS first severely restricted visits in long-term care settings on March 13, 2020, in the early stages of this pandemic. In guidance released in September 2020, CMS updated its

China employs its Thousand Talents Program (“TTP”) to recruit overseas academic and scientific talent to work in China by promising research funding from the Chinese government and, occasionally, compensation. TTP has drawn increased scrutiny from the U.S. government, specifically the FBI and the Department of Justice, over purported concerns of intellectual property theft or espionage. However, a closer review of the actual charges brought to date by these government agencies reveals the crux of the matter has related to disclosures.

In my last post, “Real Estate Alphabet Soup: V is for Variance” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter W.” W is for “Warranties”. A “warranty” is an assurance by one party in a transaction to the other party of the existence of a fact upon which the other party may rely. The “warranty” is intended as a promise that certain matters are true. If a

In response to the many disruptions caused by the COVID-19 pandemic many states have made accommodations for certain licensing requirements across various industries. Last month, in our blog post “Relief from Branch Office Licensing,” we generally reported on the actions taken by many state mortgage finance regulators to temporarily allow licensed mortgage companies and their licensed mortgage loans originators (MLOs) to originate residential mortgage loans from the MLO’s unlicensed home or some other remote unlicensed location. To provide that guidance,

The temporary shutdowns in response to the pandemic dealt a major blow to businesses as well as their employees. Since last March, many employers have been forced to shutter their businesses and lay off their workforce. One of the hardest hit sectors has been the coronavirus-sensitive leisure and hospitality industry. The industry alone accounts for 39% of all jobs lost to the pandemic. With the introduction of a vaccine and government restrictions loosening up, businesses are starting to reopen, and

Last year, when COVID-19 first hit the country nationwide, many state regulators were quick to act, and temporarily allowed licensed companies and their licensed mortgage loan originators (“MLOs”) to originate residential mortgage loans from their home or another alternate location without the home or the alternate location being licensed as a branch office of the licensed company. During the past year, vaccines have been developed and approved to combat COVID-19. Although the vaccines are working, getting everyone vaccinated is taking time,

Since the beginning of the COVID-19 situation, Americans have rethought day-to-day tasks that were common before the pandemic. In the same nature, the United States Internal Revenue Service (“IRS”) recently issued a temporary deviation permitting taxpayers and representatives to use electronic or digital signatures when signing select IRS forms that once required a handwritten signature (the “Deviation”). Specifically, IRS Form 8038 (“Form 8038”) is among the list of forms that the Deviation applies to. Issuers of tax-exempt private activity bonds use

On December 27, 2020, the Taxpayer Certainty and Disaster Tax Relief Act of 2020 (TCDTR Act) amended the employee retention credit (ERC) provisions of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Among other changes, the ERC is now available from January 1, 2021 through June 30, 2021. Below is a description of the ERC available under the CARES Act and a list of the modifications now in place under the TCDTR Act. ERC under the CARES Act The ERC

The first two weeks of the Biden Administration have seen a flurry of activity indicating it will move away from the more restrictive immigration environment of the Trump era, including for employment-based immigration programs. This post summarizes some of the early actions the Biden Administration has taken. Regulatory Freeze The Biden Administration instituted a freeze on all pending and proposed regulations for a 60-day period of review. In its last several months, the Trump Administration had issued or proposed a series of

Maximizing the use of goods, products, and materials produced in the United States under the Buy American Act (BAA) is a bipartisan issue. In our previous post, “Ensuring the Future is Made in All of America by All of America’s Workers” (located here) we wrote about Executive Order 14005, signed by President Biden on January 25, 2021.  Among other things, EO 14005 directs the Federal Acquisition Regulatory Council (FAR Council) to consider proposing a rule that increases the thresholds for

In my last post, “Real Estate Alphabet Soup: U Is for Unities,” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “V.” V is for “variance.” In the realm of real estate and, more specifically, zoning law, a “variance” is an exemption from the application of certain zoning ordinances or regulations, thereby permitting a use which varies from the regulations otherwise permitted under the zoning ordinance. A “variance” may

On January 25, 2021, President Biden issued an Executive Order on Ensuring the Future Is Made in All of America by All of America’s Workers. The order is part of his “Build Back Better Recovery Plan” to strengthen American manufacturing and has potentially far-reaching effect. The order will tighten the federal government’s requirements to buy American products, support American jobs and rationalize the enforcement of the country’s patchwork of “Made in America” laws. Companies that supply goods and services to the

As discussed in our blog “Virginia Takes the Lead in Adopting Workplace Safety Regulations for COVID-19,” in July 2020, Virginia became the first state to enact a temporary COVID-19 emergency workplace rule set to expire on January 27, 2021. The Virginia Safety and Health Codes Board approved a permanent rule on January 13, 2021, that will essentially make the temporary rule permanent, with some changes. The permanent rule must be reviewed by Governor Northam and, if no revisions are requested

The O-1A is a nonimmigrant classification that allows employers and agents to temporarily employ individuals who have “extraordinary ability” in the areas of science, education, business, or athletics in the United States. It initially allows up to three years of employment in the US, and it can be extended in one year terms. The category is reserved for those who have “sustained national or international acclaim and recognition” and are acknowledged as “one of the small percentage who have arisen to

On January 8, 2021, the Department of Homeland Security (“DHS”) published a final rule that would dramatically change how H-1B cap petitions are selected in the annual “lottery.” Under this final rule, the current random selection process would be replaced with a system that gives priority to workers whose offered salary is in the highest wage levels for their occupation and geographic location. The new rule will go into effect 60 days after publication—March 9, 2021—and U.S. Citizenship and Immigration

On January 6, 2021, the office of the Maryland Comptroller announced extended filing and payment deadlines for certain Maryland business taxes and quarterly estimated income tax returns and payments. The extension will allow certain business taxes and estimated income tax returns and payments that would be due in January, February and March 2021 to be deferred until April 15, 2021. The action is similar to an extension granted last year to businesses during the early stages of the COVID-19 pandemic.

In response to 2020’s continued accounts of brutality and discrimination against Black people, and the corresponding wave of demands for accountability and racial justice, organizations across the country began implementing additional measures aimed at achieving equity in the workplace. In line with these initiatives, many organizations opted to provide various forms of diversity, equity, and inclusion training for their employees. These trainings often cover topics including unconscious bias, systemic racism, and white privilege. Trump’s Executive Order Seemingly in an effort to taper

On December 27, 2020, the Consolidated Appropriations Act, 2021 (the “Appropriations Act”), was signed into law following weeks of negotiations by members of Congress and Executive branch officials. The Appropriations Act combines an omnibus spending bill for the 2021 federal fiscal year with $900 billion in stimulus relief due to the ongoing effects of the COVID-19 pandemic in the United States. Division N, Title III, of the Appropriations Act is the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues

On January 1, 2021, the National Defense Authorization Act became law after Congress overrode the President’s veto. As highlighted below, Congress enacted a variety of key provisions that create significant and sweeping reforms to statutes and regulations designed to combat money laundering and terrorism financing. 1. Requiring Entities to Report “Beneficial Ownership” Congress determined that “malign actors” and “money launderers” conduct financial transactions through corporate structures that conceal their identities “much like Russian nesting ‘Matryoshka’ dolls.” In order to pierce these facades,

The Consolidated Appropriations Act of 2021 (CAA) was signed into law on December 27, 2020, after receiving overwhelming bipartisan support. The Act, in addition to providing appropriations for various government departments, as well as coronavirus stimulus, made a number of changes to the Bankruptcy Code (Title 11 of the United States Code). Landlords of commercial properties should be aware of certain changes directly impacting their rights under the Bankruptcy Code. The amendments addressed below, however, are temporary and, absent further

In my last post, “Real Estate Alphabet Soup: T Is for Tenancy” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “U.” U is for “Unities”. Under the common law there are four “unities” that are required in order to create certain forms of tenancy.  As a bit of a refresher, you may recall from my last post that some of the forms of taking “tenancy” or title

Every so often, the extent of state laws providing for the licensing of collection agencies needs to be re-examined.  As every state, including two of the most prominent states, California and New York, historically had not licensed collection agencies,1 the state licensing of collection agencies has not been given as much attention as has been given to the state licensing of other consumer finance activities.  This changed in September 2020, when the California legislature, shortly before adjournment, enacted Senate Bill

On December 15, 2020, the District of Columbia Council unanimously passed one of the strictest bans on employee non-compete agreements in the country, prohibiting nearly all such restrictions on employment both during and after an employee leaves employment with a DC employer. The Ban on Non-Compete Agreements Amendment Act of 2020 (the “Act”) prohibits any DC employer from requesting or requiring an employee to sign a non-compete agreement. The Act defines a “non-compete” to include any provision that limits an employee’s

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), among other things, required the Consumer Financial Protection Bureau (CFPB) to adopt regulations governing the collection of certain small business lending data. Section 1071 of the Dodd-Frank Act amended the Equal Credit Opportunity Act (ECOA), as follows: “in the case of any application to a financial institution for credit for [a] women-owned, minority-owned, or small business, the financial institution shall – (1) inquire whether the business is a women-owned,

On December 27, 2020, President Trump signed a $900 billion COVID-19 relief bill, providing for, among other things, a $300 per week supplemental unemployment benefit, direct payment checks of up to $600 per adult and child, $284 billion in Paycheck Protection Program (“PPP”) loans, and $25 billion in rental assistance.   So what effect will this relief bill have on the paid leave mandated by the Family First Coronavirus Response Act (the “FFCRA”)?  As detailed in a blog post on March

Small Entity Government Use License Exception (Effective date: January 20, 2021) The United States Patent and Trademark Office (USPTO) is amending the rules of practice in patent cases to clarify and expand exceptions to the rule pertaining to government use licenses and their effect on small entity status for purposes of paying reduced patent fees. The rule change is designed to support independent inventors, small business concerns, and nonprofit organizations in filing patent applications and to encourage collaboration with the Federal

As news of a COVID-19 vaccine increased during the late fall, employers were anxiously awaiting EEOC guidance as to whether they could require employees to get vaccinated. While it will be several more months before the vaccine will be available to the general public, employers are thinking ahead and have been looking for guidance about their ability to require vaccination. In addition, health care employers and employers in essential businesses will be among the first to have to make these

On November 18, 2020, the United States Court of Appeals for the Fourth Circuit upheld a decision that retailer Lowe’s Home Centers LLC (“Lowe’s”) did not violate the Americans with Disabilities Act (ADA) when it removed a disabled store manager from his position and declined to reassign him to a similarly situated vacant managerial position.   The Plaintiff, Charles Elledge, was a long time employee of Lowe’s and had worked in a demanding position managing multiple store locations and working long

The “empty chair” defense, where the defendant denies responsibility for the plaintiff’s injuries and blames a person absent from trial (i.e. the “empty chair”), can be extremely effective in tort actions. The Court of Appeals of Maryland has rightly observed that “[t]he more the jury hears that the negligence of a third party caused the injury, the less likely the jury may be to find that the named defendant was negligent in causing the injury.”  Am. Radiology Servs., LLC v.

In my last post, “Real Estate Alphabet Soup: S Is for Survey,” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “T.” T is for Tenancy. A “Tenancy” is a right to hold title to property and can take several forms of title or ownership. A “Sole Tenancy,” by definition, is an interest held totally and solely by one individual tenant. The most common forms of joint ownership

Sometimes, a retirement plan is required to distribute a missing participant’s account balance into a state’s unclaimed property fund. Until recently, it was unclear whether this distribution is subject to withholding of federal income tax and how this distribution is supposed to be reported to the IRS. The IRS finally cleared up both issues by ruling that (1) the total amount distributable (i.e., the entire account balance) is subject to withholding of federal income tax, and (2) any distribution of $10

A recent opinion by the United States Bankruptcy Court for the Western District of North Carolina kept alive a bankruptcy trustee’s fraudulent conveyance claims based on, in part, the Internal Revenue Code (“IRC”) 10-year statute of limitations period to avoid fraudulent transfers—rather than a shorter limitations period under state law. The case is Mitchell v. Zagaroli et al. (In re Peter Lawrence Zagaroli), Case No. 18-50508, Adv. Proc. No. 20-05000, 2020 WL 6495156 (Bankr. W.D.N.C. November 3, 2020). In Zagaroli, the

On November 18, 2020 the Internal Revenue Service (IRS) released a Revenue Ruling (Rev. Rul. 2020-27) and a Revenue Procedure (Rev. Proc. 2020-51) that discuss the handling of deductions for expenses paid with forgivable Paycheck Protection Program (PPP) loan proceeds in circumstances when either: (i) forgiveness has been applied for, but not granted by the end of 2020, or (ii) forgiveness has not been applied for, but all events have been met to give rise to a forgiveness application in

As the holidays approach, many businesses have employees who travel or attend large family gatherings. Employers who have reopened their doors to working in-person will face questions about how to safely return to work after potential exposure during the holidays. Here are a few likely questions and guidance for employers to help control the spread of COVID-19. 1.  Can employers monitor where employees travel? Yes. According the Equal Employment Opportunity Center (“EEOC”), if the CDC or state or local public health officials

The Justice Department announced on November 10, 2020 that it signed a settlement agreement with Fleetlogix Inc. (“Fleetlogix”) resolving claims that the company discriminated against work-authorized, non-U.S. citizens by requiring them to provide specific and unnecessary work authorization documentation because of their citizenship or immigration status. Fleetlogix, based in San Diego, California, operates offices nationwide that provide cleaning and transportation services to rental car companies. The Justice Department’s underlying investigation in 2019 that led to the settlement showed that Fleetlogix required

Most state mortgage finance, consumer credit, collection agency, sale finance, and money service business licensing laws have a provision that dictates what needs to be done or what needs to be filed in connection with the change in control of a licensee, such as when a licensed entity is going to be acquired by a new owner, when an investor looks to acquire a licensed entity, or when the ownership of a licensee is restructured. All too often the state

Background   On August 8, 2020, a Presidential Memorandum was issued that allowed employers to defer withholding and payment of certain payroll tax obligations of their employees. To implement the Presidential Memorandum, the IRS issued Notice 2020-65 (“Notice”) on August 28, 2020, which gave employers the option to defer withholding of employee-side Social Security taxes from employee paychecks. The Notice allowed for the deferral of such withholding for wages paid from September 1, 2020 to December 31, 2020, if the wages were

In 2017, the Tax Cuts and Jobs Act (the “Act”) added a third minimum set-aside option to qualify a project as a qualified low-income project pursuant to Code Section 42(g)(1)(C)—the Average Income Set-Aside. The Average Income Set-Aside permits the owner to designate rest-restricted units to be occupied by qualified tenants so long as the average imputed income limitation for all the low-income units is 60% or less of the area median gross income (“AMGI”). To calculate the average, the owner

In our Legislative Alert of October 13, 2020, we reported on the California legislation enacted in late September, Assembly Bill 1864, that created the new California Consumer Financial Protection Law (“CCFPL”),1 and we set out certain of the activities that trigger a registration obligation.  As we last reported, the CCFPL, when it takes effect on January 1, 2021, will be administered by the Department of Financial Protection and Innovation (the “DFPI”). The DFPI is the new name of the California

On November 3, 2020, California voters passed Ballot Proposition 24,The California Privacy Rights Act of 2020 (“CPRA”), significantly amending the State’s recently effective California Consumer Privacy Act (“CCPA”), which is now known under the CPRA designation. Passage of CPRA means significant changes to CCPA, including the establishment of a new privacy enforcement agency, new definitions and usage limitations for sensitive data, and expanded breach liability. Businesses accessing and using the personal data of California residents are subject to CPRA and

On September 28, 2020, the New York City Council enacted Int 2032-2020, “Requiring city employers to provide earned safe and sick time to employees.” This local law amended the city’s Paid Safe and Sick Leave law and becomes effective in two parts. On September 30, 2020, the following amendments became effective: Employers must provide domestic workers with 40 hours of paid safe and sick leave; Employers must allow employees to use safe and sick leave as it is accrued; Employers must reimburse employees who

The Equal Employment Opportunity Commission (“EEOC” or “Agency”) has issued new procedural regulations for handling employment discrimination charges. 29 CFR 1601; 29 CFR 1626. The regulations now provide for the digital filing of charge-related documents. The EEOC’s digital charge filing system was piloted in 2015 and has been in place for some time on certain charges. While digital filing is not compulsory, it is now codified as the preferred option for charging parties and respondents to submit documents to the

In my last post, “Real Estate Alphabet Soup: R Is for Real Property” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “S.” S is for “Survey.”  A “survey” or “land survey” is the determination of a three dimensional image of land and positions, using points and distances, as determined by electronic distance measurements. A professional land “survey” is prepared by a trained, licensed professional land surveyor using

Its Presidential election time, and we strongly encourage you to vote on or before November 3rd. If you have not yet done so, please vote, whoever may be your preference. Now that we have addressed our civic duty, we also encourage you to elect to renew any state licenses you hold through the Nationwide Multistate Licensing System (“NMLS”). Regardless of whether you hold a mortgage finance, consumer credit, money service business, collection agency, other state license through the NMLS, the renewal period

A medical device manufacturer learned what might seem an obvious lesson when it paid $18 million to settle a False Claims Act lawsuit brought by its former Compliance Officer: don’t ignore your compliance officer. The federal government received $15.21 million; state governments received $2.79 million; and the whistleblower received $2.65 million of the federal share. The company, Merit Medical Systems, Inc. (MMS), also must pay attorneys’ fees due to the whistleblower’s counsel and enter into a five-year Corporate Integrity Agreement with the

On October 9, 2020, the Equal Employment Opportunity Commission (EEOC or Commission) published in the Federal Register a proposed rule describing amendments it intends to make to the regulations governing the statutory conciliation process. As stated in the proposed rule, the EEOC “… believes that providing greater clarity to the conciliation process will enhance the effectiveness of the process and ensure that the [EEOC] meets its statutory obligations.” Citing Mach Mining, LLC v. EEOC, 575 U.S. 480 (2015), the EEOC

The new California law discussed in this Legislative Alert does not have the earth-shattering significance of Trump versus Biden, or even Godzilla versus Mothra, but tremors have originated on the Pacific coast and are likely to be felt near the Potomac and in all lands in between. Late last month, California Governor Gavin Newsom signed into law California Assembly Bill 1864, creating a state agency that is analogous to the federal Consumer Financial Protection Bureau ("CFPB"), an agency that has been under

As detailed in an earlier blog post, as of May 26, 2020, the U.S. Occupational Safety and Health Administration (OSHA) requires employers to determine whether employee cases of COVID-19 are work-related, and therefore recordable on the employer’s OSHA 300 Log. OSHA has issued guidance to assist employers in making the determination of work-relatedness, which should serve as a starting point in responding to a report that an employee has tested positive for COVID-19. As discussed previously, the determination of work-relatedness

On October 8, 2020, the U.S. Department of Homeland Security (DHS) and the U.S. Department of Labor (DOL) published new regulations that could dramatically tighten the eligibility requirements for H-1B visa petitions and substantially raise the wages that must be paid to foreign nationals in certain visa classifications, including H-1B and many employment-based green card categories. These new regulations are part of the Trump Administration’s wider effort to restrict legal immigration programs and further the goals of the Buy American,

The Department of Justice recently announced the results of its 2020 National Health Care Fraud and Opioid Takedown. This annual DOJ tradition, aimed at targeting and arresting individuals for health care fraud abuse, resulted in the filing of criminal charges against more than 50 doctors and more than 20 health care executives. Prosecutions spanned the country, including more than 50 federal districts and 40 U.S. Attorney’s Offices. FY2020’s efforts represent “the largest amount of fraud ever charged by the department

On September 22, 2020 the Department of Labor  ("DOL") issued proposed regulations explaining how to determine whether a worker should be classified as an employee covered under the Fair Labor Standards Act ("FLSA") or an independent contractor (who is not covered by the FLSA). The proposed regulations would make it easier for companies to classify workers as independent contractors thereby eliminating their claims under FLSA (overtime and minimum wage for non-exempt employees), as well as claims under the Family Medical Leave

In my last post, “Real Estate Alphabet Soup: Q Is for Quitclaim” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “R.” R is for “Restrictive Covenants” which are written promises governing and restricting the use of “Real Property”, which can include the kinds of buildings that may be constructed on it. Restrictive Covenants may be included in a deed or in a separate written document, which is

House Bill 7370 has gained additional support since we last reported on the Protecting Employees and Retirees in Business Bankruptcies Act of 2020 (PERBBA) and related Senate Bill 4089. Support for the bill now totals twenty-eight Democrat sponsors and co-sponsors. On September 29, 2020, House Bill 7370 advanced from the House Committee on the Judiciary to the full House for consideration, with a 20-10 committee vote along party lines. If enacted as proposed, PERBBA would make significant changes to the bankruptcy

In the wake of the killing of George Floyd and other African Americans by police officers, many government contractors have undertaken social justice initiatives and increased training around unconscious or implicit bias. On September 22, 2010 President Trump signed an Executive Order "Combating Race and Sex Stereotyping" extending his ban on governmental agencies providing training that they believe is "divisive" and "promotes sexual and racial stereotyping" to Federal contractors and recipients of Federal grants. The Executive Order also requires posting notice of

U.S. Citizenship and Immigration Services (USCIS) will implement a new fee schedule on October 2, 2020 to account for increased costs in adjudicating immigration applications and petitions. The new fee schedule also ushers in new versions of certain immigration forms, including those for work visa categories, as well as a longer timeframe for premium processing. Fees for USCIS petitions and applications increased most recently in December 2016 and 2019, and they are slated for another increase in October 2020. On August

With just a few weeks left in FY 2020, the OFCCP has published new lists of 2,450 establishments for audit. Federal contractors and subcontractors are highly encouraged to check the lists—one for supply and service contractors (which includes universities/colleges for the first time in three years), and one for construction contractors. The lists can be found here. The CSAL lists reflect a number of changes at OFCCP that are new. First, in a new era of remote audits, OFCCP District Offices

The Center for Disease Control (“CDC”) previously advised that it was not necessary for asymptomatic individuals to be tested even after a known exposure to COVID-19. This guidance drew sharp criticism from many, including the Infectious Disease Society of America. On September 18, 2020, the CDC reversed its course. Now, because of “the significance of asymptomatic and pre-symptomatic transmission,” guidelines state that anyone who has been within 6 feet of a person with COVID-19 for at least 15 minutes should

Gender segregation in bathrooms, which some conservatives have predicted for decades would be undermined by sex discrimination laws, has in fact proven to be a persistent target for civil rights litigation in at least one narrow respect:  when bathroom access by the transgendered is restricted. The United States Court of Appeals for the Fourth Circuit, which hears federal cases brought in Maryland and Virginia, and three other southeastern states, recently re-addressed the subject as it affected a transgendered public school

The Small Business Restructuring Act of 2019, Pub. L. 116-54, 133 Stat. 1079 (Aug. 23, 2019) (SBRA) became effective February 19, 2020. SBRA, among other things, created a new Subchapter V under Chapter 11 of Title 11 of the United States Code. Its purpose was to provide business debtors a more streamlined bankruptcy process for rehabilitating and restructuring debts when compared to a traditional Chapter 11 case. A further goal was to reduce the time and expense of small business

On September 16, 2020, the U.S. Department of Labor published emergency regulations (making them effective as of the day of publication) revising certain portions of the Families First Coronavirus Response act (FFCRA) in response to a decision from a federal court in New York finding certain portions of the previous regulations invalid. The court had struck down four important provisions of the existing regulations relating to: The work-availability requirements Employer consent to intermittent leave The definition of “health care provider” Documentation required for leave The court’s

For those who may have missed it during a pandemic summer, on May 7, 2020 Governor Hogan allowed hundreds of Maryland bills to become law, some of which will have direct implications on employers. A summary of the employment related laws, along with recommendations on how employers can implement them in the workplace, is provided in Miles & Stockbridge’s June 8, 2020 publication titled “Maryland Enacts Host of New Laws”. Each of the laws discussed therein will become effective on

This week we take look at two recent federal decisions concerning the False Claims Act (“FCA”). The first case, Ndoromo v. Barr, is interesting because of the billion dollars in alleged damages. In this case out of the U.S. District Court for the District of Columbia, the pro se plaintiff sued various government officials, including the United States Attorney General, for over $1 billion dollars in damages.  In separate, prior proceedings, the plaintiff was convicted of various criminal charges, including healthcare fraud.

The United States Patent and Trademark Office (USPTO) just issued a warning to be on the alert for “fraudulent emails that appear to originate from the United States Patent and Trademark Office (USPTO) domain, @uspto.gov.” The USPTO goes on to say: “These emails are a scam and do not come from the USPTO. Beware that these messages: Spoof the USPTO email address (e.g., noreply@uspto.gov).  Falsely claim that the USPTO has a new policy requiring separate registration of “clients” and that there is a “penalty”

A look at selected soon-to-be-reported decisions on various False Claims Act issues. This month we can glean three quick lessons: 1) A lesson for corporate executives: If you are the owner/CEO, don’t transfer company funds to your personal bank account, particularly if the funds represent Medicaid payments received from inappropriately submitted claims. A home health care company, with a single owner/CEO and six employees, allegedly submitted claims for reimbursement to the D.C. Medicaid program for services provided to patients without adequate documentation of

With Labor Day upon us, many families are facing the start of a school year with remote or hybrid learning. As a result, many employees must figure out how to satisfy their work obligations while making alternate arrangements for childcare until schools re-open in-person. During this time, employers must keep in mind that the Family First Coronavirus Response Act (FFCRA) may provide paid leave to eligible employees struggling to arrange for childcare as the result of school closures. As detailed in a

The answer, maybe, but it depends on the facts in each case. Merely because a company has its outside legal counsel directly retain a third party service provider for an incident response, i.e., digital forensics, does not guarantee that the forensic breach report provided to the outside counsel can be protected from disclosure under the attorney work product doctrine. In a recent court decision, In re: Capital One Customer Data Security Breach Litigation, E.D. Va., No. 1:19-md-02915, the court refused to

The United States Patent and Trademark Office (USPTO) is increasing many of the patent and trademark fees effective October 2, 2020. On average, the fees are increasing by 5 – 10 percent. Below is a summary of the larger changes and their economic impact on your portfolio.   Current Fees Final Patent Fee Schedule Fees Increase/(Decrease) Percentage Change Description Large Entity Fee Small Entity Fee Micro Entity Fee Large Entity Fee Small Entity Fee Micro Entity Fee Large Entity Fee Small Entity Fee Micro Entity Fee Large Entity Fee Small Entity Fee Micro Entity Fee Patent Application Filing Fees  Basic

A bill recently introduced in the House of Representatives would temporarily expand federal protections under the Fair Debt Collections Practices Act (FDCPA)—the federal statute that limits aggressive debt-collection activities. The House proposal, H.R. 7796 (titled the “Consumer Relief During COVID-19 Act”), is similar to a Senate bill that was introduced in March. Two major differences between the bills, however, are worth noting: First, as its title indicates, the Senate bill, S. 3565 (titled the “Small Business and Consumer Debt Collection Emergency Relief

On August 24, 2020, the U.S. Department of Labor released a Field Assistance Bulletin to provide guidance addressing how employers should track the number of hours worked by employees who are working remotely. While the guidance was issued to respond to current conditions caused by the COVID-19 pandemic, the guidance is a summary of existing law and applies to all remote working arrangements, not just those resulting from the pandemic. Under the federal Fair Labor Standards Act, employers have an obligation

Foreign brand owners can file trademark applications in China as national applications (CNAs) or International Registrations (IRs) under the Madrid Protocol. There are pros and cons to each route, and brand owners may find it difficult to decide on the filing approach. There are no easy answers to this subject, but specification coverage is always one of the key considerations as specification defines the scope of protection of a trademark registration. A better understanding of the unique classification of goods

In July, Maryland’s highest court published two decisions that could impact limited liability companies (“LLC”) and other entities which operate in the State. The first of these decisions, Plank v. Cherneski, provides clear guidance on breach of fiduciary duty claims in Maryland; the second decision, 7222 Ambassador Road, LLC v. National Center on Institutions and Alternatives, Inc., analyzes the ability – or lack thereof – of LLCs to file appeals in Maryland courts when the LLC has forfeited the right

In my last post, “Real Estate Alphabet Soup: P Is for Property” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “Q.” Q is for “Quitclaim”.  A “Quitclaim Deed” is a form of deed which conveys only that right, title or interest which the owner or grantor has, or may have, in the property conveyed, and does not require that the grantor thereby necessarily pass good title to

In September 2019, the California legislature passed, and Governor Gavin Newsom signed into law, Assembly Bill 5 (“AB5”), which established a more stringent test for classifying workers as independent contractors. This so-called “ABC test” requires a hiring entity to establish all three of the following conditions in order to classify an individual as an independent contractor: The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract

With the economic effects of the COVID-19 pandemic, the number of Chapter 11 bankruptcy filings, both large and small, has increased and more are expected. Struggling businesses that filed for bankruptcy relief could not take advantage of Paycheck Protection Program Loans (“PPP Loans”) authorized under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). Debtors became creative in their efforts to obtain and retain PPP Loans, often relying on the timing of filing (or dismissing and refiling) or supplemental

On August 3, 2020, a federal court in the Southern District of New York overturned key provisions of the Families First Coronavirus Response Act (FFCRA)—the federal law requiring certain employers to provide eligible employees with emergency paid sick leave (EPSL) and expanded family and medical leave (EFML) for specified reasons related to COVID-19—significantly broadening employee eligibility to receive emergency leave under the Act. The unexpected decision came in response to a challenge by the state of New York, which sought

Maryland Governor Larry Hogan’s Executive Order 20-07-29-01 (“Executive Order”) expands the statewide requirement to wear Face Coverings, and takes effect at 5:00 p.m. today. One of many expansions applies to persons “engaged in work in any area where: (a) interaction with others is likely, including without limitation, in shared areas of commercial offices; or (b) food is packaged or prepared.” Excerpts from Governor Hogan’s Executive Order on Face Coverings are attached here. Businesses with employees may also wish to take the following

As more and more employees are returning to work, it is no surprise that employers are dealing with an influx of new issues. Guidance from the CDC and other agencies seems to change regularly, and employers may struggle to keep their policies up-to-date with the changes. Since the start of the pandemic, the CDC has provided recommendations for individuals who were infected with the coronavirus to self-quarantine for a period of time.  Employers have used these recommendations to determine when an

On July 27, 2020, a new rule went live, making it easier for retirement plans to communicate with participants electronically. This new rule modernized an existing rule that was becoming obsolete. Existing Rule Employer benefit plans must disclose certain information to participants. Information can be delivered electronically if delivery is calculated to ensure actual receipt. Receipt is presumed if information is sent to participants who have e-mail access at their workplace and who actively consent to electronic delivery, subject to additional conditions. Specifically, electronic

On July 21, 2020, the National Labor Relations Board (NLRB) issued a decision in General Motors LLC, 369 NLRB No. 127 (2020) which fundamentally changed the standard for, “determining whether employees have been lawfully disciplined or discharged after making abusive or offensive statements — including profane, racist, and sexually unacceptable remarks — in the course of activity otherwise protected under the National Labor Relations Act” (Act). Prior to its decision in General Motors, the NLRB had established three different setting-specific tests

New Optional-Use FMLA Forms On July 16, 2020, following a period of public comment, the DOL published new optional-use FMLA forms. The forms were revised by the DOL to make them easier to understand and use.  For instance, the forms now contain fewer questions requiring written responses. Instead, the forms use statements and check boxes. This change is intended to cut down on the time it takes to complete the form and to cut down on the need for follow up

Hackers used a phishing attack to infiltrate the city’s network and then deployed ransomware. On May 26, 2020, after receiving a tip from a dark web specialist, cybersecurity blogger Brian Krebs alerted the city of Florence, Alabama that hackers with a history of deploying ransomware had infiltrated the city’s network by stealing the credentials for the city’s IT manager in a May 6 phishing attack. Grateful for the tip, the city’s system administrator informed Krebs that the city took action to isolate

On July 15, 2020, the Virginia Safety and Health Codes Board adopted the Emergency Temporary Standard, Infectious Disease Prevention, SARS-CoV2 Virus that Causes COVID-19 (ETS), making Virginia the first state to adopt COVID-related workplace safety regulations. The text of the ETS is currently being finalized and will go into effect upon publication, which is expected to occur the week of July 27, 2020. The ETS will remain in effect for at least six months. The ETS is designed to supplement current

The Court of Justice of the European Union (CJEU), the EU's highest court, declared on July 16, 2020, that the EU-U.S. Privacy Shield framework for the transfer of personal data from the EU into the United States is invalid.  This ruling, issued in Data Protection Commissioner v. Facebook Ireland, Ltd., Maximillian Schrems, Case C-311/18 (E.C.J. July 16, 2020) (known more broadly as the Schrems II case), was one of the most highly anticipated court rulings of the year and will

With the COVID-19 pandemic creating a significant upswing in Chapter 11 bankruptcies and with more expected to come, Congress is once again considering substantial changes to the way the Bankruptcy Code addresses worker compensation, retiree benefits and collective bargaining agreements with the Protecting Employees and Retirees in Business Bankruptcies Act of 2020 (PERBBA), introduced recently in both the House and the Senate (House Bill 7370; Senate Bill 4089). PERBBA is the latest iteration of legislation designed to add additional worker

In my last post, “Real Estate Alphabet Soup: O Is for Option” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “P.” P is for “Property”.  The legal term “property” in the world of real estate can include both personal property and real property. “Real Property” includes real estate; specifically, the land and improvements built and situated upon it.  “Personal Property” may include items contained within the improvements

On July 8, 2020, the Supreme Court of the United States issued two new opinions applying First Amendment religious rights to employers. The first case, Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267 (July 8, 2020), overturned the Ninth Circuit in expanding the individuals employed by religious institutions that are exempt from anti-discrimination laws. The second case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, No. 19-431 (July 8, 2020), overturned a nationwide injunction instituted

Update: The two energy companies constructing the Atlantic Coast Pipeline have abandoned their six-year bid to build it. Despite the recent US Supreme Court win we discuss below, the companies cite high costs and regulatory uncertainty behind their decision to discontinue the project. The Atlantic Coast Pipeline is a planned $8 billion, 600-mile natural gas pipeline from West Virginia to North Carolina. Petitioner Atlantic Coast Pipeline, LLC seeks to build the pipeline, which would traverse 21 miles of national forests and

On July 6, 2020, the Small Business Administration (SBA), in coordination with the Department of the Treasury, released data about borrowers who applied for and received money from the Paycheck Protection Program (PPP). Borrowers who received PPP loans of at least $150,000 are mentioned by name; borrowers who received PPP loans under $150,000 are not mentioned by name. Here are the other important details: Borrowers Who Received at Least $150,000: In addition to borrower name, certain other information pertaining to the borrower

Effective July 1, 2020, Virginia’s employment laws are substantially changing to provide broader protections to employees in many areas. We previously summarized the Virginia Values Act (VVA), which goes into effect on July 1, 2020, and subjects employers with more than five employees to new state claims for, among other things, gender identity and sexual orientation discrimination and for larger damage awards. Because of the significance and volume of the new laws going into effect July 1, 2020, we covered the

Effective July 1, 2020, Virginia’s employment laws are substantially changing to provide broader protections to employees in many areas.  We previously summarized the Virginia Values Act (VVA) here which goes into effect on July 1, 2020 and subjects employers with more than five employees to new state claims for, among other things, gender identity and sexual orientation discrimination and for larger damage awards. Because of the significance and volume of the new laws going into effect July 1, 2020, we will

Last night, President Trump signed a Presidential Proclamation imposing entry restrictions on certain foreign nationals in temporary work visa statuses, including H-1B, L-1, J-1 and H-2B, and related categories for dependents, with some exceptions. The restrictions will take effect on June 24, 2020, at 12:01am EDT and will expire on December 31, 2020, subject to possible extensions. Additionally, the Proclamation extends the current restrictions on certain immigrant visa applicants until December 31, 2020. The Proclamation will only impact foreign nationals

On May 23, 2020, Howard County Executive Calvin Ball approved emergency legislation (Bill No. 33-2020) (the “Bill”) passed by the Howard County Council, which prohibits certain rent increases, changes in lease terms and certain other actions by residential and commercial landlords and mobile home park owners. This discussion will focus on the Bill’s provisions regarding commercial landlords and tenants. Prohibitions on Landlords During the Catastrophic Health Emergency declared by Governor Hogan on March 5, 2020 (the “Emergency”), and thereafter for the duration of

On Thursday, June 18, the Supreme Court rejected the Trump Administration’s attempt to end the Deferred Action for Childhood Arrivals (DACA) program for undocumented immigrants brought to the country as children, known as “Dreamers.” The 5 to 4 decision was written by Chief Justice John G. Roberts Jr. and joined by the court’s four liberal justices. The Supreme Court held that the Department of Homeland Security (DHS)’s effort to terminate the DACA program was arbitrary and capricious, and remanded the

According to media and other sources, the Trump Administration will likely issue a Presidential Proclamation instituting additional immigration restrictions by the end of this month. The Proclamation is likely to extend the April 22, 2020, Presidential Proclamation, “Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” which suspended immigrant visa processing for some applicants for permanent residency for 60 days. The new Proclamation is also expected to impose temporary

Last week, the U.S. Equal Employment Opportunity Commission (EEOC) released additional information within its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” guidance. In March 2020, the EEOC began periodically releasing frequently asked questions and corresponding answers about the intersection of the laws it enforces and COVID-19. As the enforcer of workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA), the Rehabilitation Act, Title VII of the Civil Rights Act (“Title

In a seminal 6–3 decision for LGBTQ rights on Monday, June 15, 2020, the Supreme Court of the United States held plainly: An employer who fires an individual merely for being gay or transgender defies the law. The Opinion by Justice Gorsuch, issued more than eight months after the Supreme Court heard oral arguments in the three consolidated cases at the center of this action, provides that an employer who intentionally treats a person worse because of sex—such as by

In my last post, “Real Estate Alphabet Soup: N Is for Notice” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “O.” O is for “Option”.  In both the sale and leasing of real estate there may be an “option” involved. An “option” contract is a binding agreement or contract between the parties in which the property owner agrees that a party shall have the privilege to purchase the

With the onset of COVID-19, there is increased attention on force majeure clauses – what they are, when they can be invoked, how they operate, and how they might change in the future. This is especially true in construction matters, where many projects have been delayed, often due to some combination of the following: government regulations and executive orders implementing quarantines, stay-at-home orders, or other restrictions; decreased workforce due to illness; unavailability of goods and materials; loss of access to

You don’t need a legal blog to tell you that the country is in a state of extreme unrest regarding the killings of George Floyd, Ahmaud Arbery, Breonna Taylor and so many other Black people, at the hands of police and in other racially charged incidents. People in the United States and abroad have engaged in protests about issues related to race in America, including police brutality and institutional racism. In addition to people protesting in the streets, millions more

The U.S. Department of Justice (“DOJ”) is scrutinizing borrowers who have applied for loans through the Small Business Administration’s Paycheck Protection Program (“PPP”), established by the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). To date, the DOJ has filed charges in seven separate cases against defendants accused of fraud in connection with PPP loans, and the number of charges continue to grow. These charges demonstrate the Government’s strong intent to claw back any loan proceeds which were obtained

On May 28, 2020, the U.S. House of Representatives near-unanimously passed the Paycheck Protection Program Flexibility Act of 2020, H.R. 7010 (the “PPP Flex Act” or the “Flex Act”) as national leaders look to provide additional, more expansive support to small businesses impacted by COVID-19. The Senate passed the PPP Flex Act on June 3, and President Trump signed it into law on June 5.  This bill follows multiple rounds of guidance released by the Small Business Administration (the “SBA”),

On May 7, 2020, in accordance with Article II, Section 16(c) of the Maryland Constitution, Governor Hogan allowed hundreds of Maryland bills to become law without his signature. Many of these laws will have direct implications on the workplace that employers should be aware of. A summary of these employment-related laws is provided below. All will become effective on October 1, 2020. Expansion of Employers’ Notification and Reporting Obligations for Workforce Layoffs S.B. 780, referred to as “Maryland’s Mini-WARN Act” (a state

On May 28, 2020, The Secretary of Commerce opened a new investigation to determine the effects on national security from imports of vanadium, pursuant to its authority under Section 232 of the Trade Expansion Act of 1962.  Interested parties are invited to submit written comments, data, analyses, or information pertinent to the investigation, no later than July 20, 2020.  A party potentially impacted in any way – directly or indirectly - by vanadium tariffs should consider submitting comments. Section 232 is

Businesses required by the Occupational Safety and Health Administration (OSHA) to maintain a log of work-related injuries and illnesses—referred to as an “OSHA 300 Log”—must now pay additional attention to whether employee cases of COVID-19 are “work-related” and therefore recordable. As of May 26, 2020, OSHA has announced that its earlier enforcement guidance— exempting employers (except for those in certain high-risk industries) from recording cases of COVID-19 absent obvious indications of “work-relatedness”—will be rescinded and replaced with a revised enforcement

U.S. Citizenship and Immigration Services (USCIS) today announced that it will resume premium processing for Form I-129 and Form I-140 petitions in phases over the next month. On March 20, USCIS announced the temporary suspension of premium processing for all Form I-129 and I-140 petitions due to the coronavirus (COVID-19). Effective June 1, 2020, USCIS will accept Form I-907, Request for Premium Processing Service, for all eligible Form I-140 petitions. Effective June 8, USCIS will accept premium processing requests for: H-1B petitions filed

As MGT Construction 1 executives start pleading guilty to conspiracy to commit wire fraud and bank fraud, every construction company executive should reflect on the duties of disclosure owed to their bonding companies. Inadequate disclosures carry a range of legal risks. The legal risk of securing a performance bond without disclosing material facts typically arises through a claim by the bonding company for concealment of material facts. In such claims, the bonding company could request that sufficient collateral be provided to cover the

On May 8, 2020, the Office of Federal Contract Compliance Programs (“OFCCP”) announced the issuance of a new form that federal contractors must use to ask job applicants and employees to self-identify as disabled. This is the first revision to the form since March 2014, when the regulations implementing Section 503 of the Rehabilitation Act of 1973 were revised, and contractors were required to perform data collection regarding applicants and employees with disabilities. The 2014 regulations require federal contractors subject

On April 11, 2020, Virginia Governor Ralph Northam signed into law the Virginia Values Act (VVA), which will subject employers with more than five employees to state claims for discrimination with increased damages.  The new law, which goes into effect July 1, 2020, also adds gender identity and sexual orientation to the list of classes protected under the Virginia Human Rights Act (VHRA). Prior to the passage of the VVA, the VHRA only applied to employers with more than 5 and

With COVID-19 holding the global economy captive, Congress is attempting to head off what they predict will be an economic tidal wave of evictions, foreclosures and civil judgments by introducing The Small Business and Consumer Debt Collection Emergency Relief Act of 2020 (the “Bill”). Per its Senate sponsors, the Bill would modify and expand the Fair Debt Collections Practices Act or FDCPA (the “Act”)—the federal statute that regulates consumer debt collection practices—to better protect individuals during national emergencies and also

Governor Larry Hogan allowed Senate Bill 780 to become law without his signature on May 7, 2020. The law will become effective on October 1, 2020. This new law significantly revised the existing Economic Stabilization Act (MD Code, Labor and Employment §11-301 – §11-304)(“Act”) and will drastically change Maryland employers’ notification and reporting obligations regarding workforce layoffs. Previously, the Act provided voluntary guidelines for employers who intended to lay off employees regarding the provision of notice to those employees. Under the

On May 13, 2020, the U.S. Small Business Administration (SBA), in consultation with the U.S. Department of the Treasury, provided the following critical guidance on the good-faith certification requirement for Payroll Protection Program (PPP) borrowers (updated FAQ): Any borrower who, together with its affiliates, received PPP loans with an original principal amount of less than $2,000,000 will be deemed to have made the necessity certification in good faith. Borrowers with PPP loans at or above $2,000,000 may still be deemed to have

The COVID-19 emergency has impacted businesses throughout the country, from placing restrictions on reopening to dealing with the nuances of the CARES Act. Another workplace issue that will rise out of this national emergency is how the workers’ compensation system will deal with COVID-19 claims. Workers’ compensation is usually the exclusive remedy for employees injured at work. The system benefits employees by providing injured employees the prospect of swift and sure compensation, without having to prove their employer was at fault.

As shutdown orders expire and businesses reopen, questions arise on the possible liabilities created and the ability to mitigate them. Standards are emerging; some will be second-guessed. Previous modes of operation may continue or be rapidly changed. Trust and loyalty of customers and employees will soon be tested. Rules and recommendations will vary widely based on the nature of the business, its workspace footprints, exposure to the public and availability of necessary resources. What can be offered are not stringent

In a decision some believe may generate more trademark infringement litigation, the U.S. Supreme Court recently ruled that a trademark owner does not have to prove a defendant acted willfully to receive a profits remedy in some cases. On April 23, 2020, on appeal from the Second Circuit Court of Appeals, the Court decided Romag Fasteners, Inc., v. Fossil, Inc.  Under an agreement between Romag and Fossil, Romag made magnetic fasteners used on Fossil’s handbags and other products.  Romag learned, however,

On April 15, 2020, we provided an industry alert giving a summary of the initial structure of the Main Street Lending Program (MSLP). Since that date, the Board of Governors of the Federal Reserve System (the “Board”) has posted Term Sheets and Frequently Asked Questions dated April 30, providing additional clarity on the three facilities comprising the MSLP. This piece provides an overview of the MSLP in light of the additional guidance. MSLP is distinguished from the Payroll Protection Plan

Last month, Virginia’s General Assembly enacted a new law that makes contractors on large construction projects liable for unpaid wages owed to their subcontractors’ employees.  Senate Bill 838, codified at Virginia Code § 11-4.6 and § 40.1-29 has four major effects: It makes the general contractor—and all tiers of subcontractors working on the project—contractually liable to pay their subcontractor’s (at any tier) employees’ wages;  It requires that such payments equal or exceed those required by applicable statutes, such as Virginia’s Minimum Wage

In my last post, “Real Estate Alphabet Soup: M Is for Force Majeure” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “N.” N is for “Notice.”  Every real estate contract or lease should include a paragraph containing “notice” provisions. Notice provisions typically will include the name, address and contact information for where and how any notice should be provided when required under the terms of the contract

On Sunday, May 3, 2020, the Centers for Disease Control and Prevention (CDC) updated their Frequently Asked Questions for General Business and released guidance for Symptom-Based Strategy to Discontinue Isolation for Persons with COVID-19. The new guidance is targeted at assisting employers as they try to navigate the landscape of reopening businesses during the COVID-19 outbreak. When returning individuals to work, the employer should take proactive measures to prevent the spread of the virus in the workplace, including limiting social interaction,

On April 30, 2020, the Internal Revenue Service (IRS) issued Notice 2020-32 (the “Notice”) to address the deductibility of loan amounts received under the Paycheck Protection Program (PPP) of the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). In summary, the IRS stated no tax deduction will be allowed for expenses paid with PPP loan proceeds to the extent such amounts are forgiven under the terms of the CARES Act. This alert outlines the PPP loan forgiveness provision

Until recently, employers had largely ignored unemployment claims other than to contest an occasional claim. Now, however, as employers consider different options to address the impact of the COVID-19 pandemic on their business, they find themselves struggling to understand the system and the impact it may have on their operations. While unemployment rules and regulations will vary on a state-by-state basis, there are some general principles that employers should understand to help them develop the best business plan for their

Governor Larry Hogan, the Maryland Department of Health (MDH) and the state’s long-term care provider community continue to take aggressive steps to combat COVID-19 in nursing homes and other long-term care settings. Most recently, on April 29, 2020, Governor Hogan issued Executive Order Number 20-04-29-01, which amended and restated all previous orders for nursing homes and other senior facilities and imposed new strict compliance requirements. The MDH published a new accompanying Directive and Order further clarifying the requirements from the Governor’s Executive

As indicated in an earlier Miles & Stockbridge Government Contracts blog post, contractor reimbursement language in Section 3610 of the CARES Act raised numerous questions that contractors attempted to answer in the early weeks since the CARES Act’s enactment. Section 3610 permits agencies to provide many federal contractors struggling to stay afloat during the COVID-19 pandemic with financial relief by reimbursing certain paid leave costs, including sick leave. Since enactment, several individual agencies have taken steps to answer many of

One of 2019’s most significant construction cases underscores the importance of strictly adhering to a contract’s written terms.  The case resulted from the FBI’s award to a general contractor a construction contract for a large FBI facility.  Part of the project involved fabricating and installing precast concrete panels on an existing parking garage structure.  The general contractor hired a subcontractor to fabricate and install the precast concrete panels. The FBI required the general contractor to verify and accept the existing parking

On April 22, 2020, President Trump issued a proclamation suspending the entry of certain immigrants for 60 days. The proclamation applies only to a limited group of new immigrants who are currently outside the United States and does not impact foreign nationals who are in the U.S. or who are seeking to enter on temporary visas. However, the proclamation does leave the door open for future restrictions, which may impact those in temporary work visa status such as H-1B, TN

On April 17, 2020, the Centers for Medicare and Medicaid Services (CMS) issued an MLN Matters Special Edition Article with additional guidance for rural health clinics (RHCs) and federally qualified health centers (FQHCs) during the COVID-19 public health emergency (COVID-19 PHE). The Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which was signed into law on March 27, 2020, permits RHCs and FQHCs to furnish distant site telehealth services to Medicare beneficiaries during the COVID-19 PHE. Prior to the CARES

On April 17, 2020, the EEOC updated its guidance initially published on March 17, 2020, entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” to address additional employment concerns in the wake of the COVID-19 pandemic. Notable new topics addressed by the guidance, including issues related to temporary accommodations, undue hardship and returning to work, are discussed below. For a summary of the topics previously addressed by the EEOC in this guidance,

On Thursday, April 23, 2020, the U.S. Small Business Administration (SBA), in consultation with the U.S. Department of the Treasury, added new guidance to their Paycheck Protection Program (PPP) FAQ document, located here, which addresses certain questions regarding PPP loans under the CARES Act. This guidance was issued as Congress passed legislation that adds an additional $310 billion to the PPP. Most critically, SBA addressed the requirement that PPP borrowers certify that “[c]urrent economic uncertainty makes this loan request necessary

CMS continues to issue revised guidance to health care providers to assist them with dealing with the COVID-19 crisis, including blanket waivers of CMS’s conditions of participation (“CoPs”). New guidance published from CMS’s Center for Clinical Standards and Quality/Quality, Safety and Oversight Group expands these waivers to licensed independent freestanding emergency departments by allowing them to enroll as a Medicare/Medicaid-certified hospital and bill for both inpatient and outpatient services. Freestanding emergency departments (IFEDs) are state-licensed emergency departments that are unaffiliated with hospitals.

Atlantic Coast Pipeline, LLC (“Atlantic”) recently won another battle in its quest to construct an interstate natural gas pipeline across West Virginia, Virginia, and North Carolina.  Twenty-seven of its planned 604 miles traversed Nelson County, Virginia.  Nelson County’s zoning ordinance required a facility used to “transport” hazardous materials across a Special Flood Hazard Area obtain a discretionary variance from the Nelson County Board of Zoning Appeals.  Not wanting the pipeline and contending it would adversely impact its floodplain, the Nelson

The coronavirus has had an adverse impact on many businesses and affected their ability to meet financial obligations. To relieve financial strain, business owners have various options to discharge debt, modify loans and transfer property to their lenders. Below are some of the tax issues a business should consider when assessing debt relief options. Note this list is not exhaustive, and the options available will vary depending on a business’s particular situation. Transferring Property to Lender. The tax treatment of a

Effective immediately, U.S. Customs and Border Protection (CBP) is amending the CBP regulations to permit importers to temporarily postpone the deposit of certain estimated duties, taxes and fees. Ordinarily, those estimated duties, taxes and fees must be paid by importers for their merchandise as of the date of its entry, or its withdrawal from warehouse, for consumption. However, for certain merchandise entered in March or April 2020, qualified importers may postpone payment for a period of 90 days from the

Employees concerned about the coronavirus and its impact on their health and that of their family members have been speaking out in the workplace, on social media and in the press. Employees have been raising issues such as social distancing in the workplace, available safety equipment and disinfecting their workspaces. There have been a number of recent articles concerning discipline issued to employees for raising those concerns. Employees’ concerns and discussions about those concerns are likely to increase as businesses

As businesses continue to wait for curves to begin to flatten, there is little doubt that there will be increased pressure to resume operations as quickly as possible. Businesses should begin to consider now how they will comply with best practices to safeguard employees and avoid situations that put their employees at risk. Jeff Johnson’s March 26 blog post touched on OSHA’s emphasis to that date and is a good starting place for professional managers trying to anticipate problems that good

On March 5, 2020, Maryland Governor Larry Hogan proclaimed a state of emergency related to COVID-19. Pursuant to that proclamation, Governor Hogan and the Office of the Comptroller of Maryland (the “Comptroller”) have taken various actions to provide Maryland citizens with tax and reporting relief. Additionally, on March 23, 2020, Governor Hogan authorized $130 million in funding for the Maryland COVID-19 Emergency Relief Fund Programs for Small Businesses (the “Relief Fund”) and $7 million in funding for the COVID-19 Layoff

One of the few good things about a pandemic is that it can trigger the human instinct to share. If you are thinking about adopting or expanding a leave-sharing or PTO donation program, remember to consider the tax consequences to employees. The simplest form of a leave-sharing program is where one employee donates PTO to another employee or an employer-managed PTO bank. The donated PTO can be used by another employee for any reason or for certain reasons specified by the

On April 14, 2020, Maryland Governor Larry Hogan issued Executive Order 20-04-14-02 intended to provide publicly traded Maryland corporations and real estate investment trusts with greater flexibility in holding stockholder meetings by remote communication. Applicable to Maryland corporations and REITs that are subject to the reporting requirements of the ’34 Act, the Executive Order will remain in effect until Maryland’s state of emergency has been terminated and the proclamation of the catastrophic health emergency has been rescinded. The Executive Order will

Last month, the U.S. District Court for the District of Montana granted summary judgment to an environmental group, ruling that the U.S. Army Corps of Engineers violated Section 7(a)(2) of the Endangered Species Act (“ESA”) by failing to formally consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries.  The Court held that the Corps’ re-issuing its Nationwide Permit 12 (“NWP 12”) without complying with the ESA “may affect” protected species or critical habitat. Nationwide permits are available

On April 9, 2020, the IRS issued Notice 2020-23 (the “Notice”), which extends additional tax deadlines to cover individuals, estates, corporations and others. The Notice also provides relief with respect to certain “Specified Time-Sensitive Actions” that are due to be performed on or after April 1, 2020, and before July 15, 2020. For purposes of the Notice, the term “Specified Time-Sensitive Action” includes certain deadlines for taxpayers to identify property and complete a 1031 exchange. It also includes the prescribed

Section 3610 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, enacted on March 27, 2020, provides the possibility of welcome financial relief for many federal contractors struggling to stay afloat during the COVID-19 pandemic. Subject to certain prerequisites and constraints, Section 3610 permits agencies to reimburse, at “the minimum applicable billing rate not to exceed an average of 40 hours per week any paid leave, including sick leave, a contractor provides to keep its employees in a ready

In my last post, “Real Estate Alphabet Soup: L Is for Lease” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “M.” As I write this blog, we are in the midst of the COVID-19 coronavirus pandemic. So I’m working remotely from home and “social distancing” to do my part and civic duty in helping to “flatten the curve” and slow the spread of the virus. When I first

On April 9, 2020, the IRS issued Notice 2020-23 (the “Notice”), which extends more tax deadlines to cover individuals, estates, corporations and others. The notice expands upon tax relief granted in prior IRS notices that postponed certain tax filing and payment deadlines until July 15, 2020. The Notice provides extensions for a variety of tax form filings and payment obligations that are due between April 1, 2020, and July 15, 2020, including estimated tax payments due June 15 and the

Is COVID-19 a disability under the ADA? To qualify as disabled under the Americans with Disabilities act, an individual must be: A person who has a physical or mental impairment that substantially limits one or more major life activities; A person who has a record of such an impairment; or A person who is regarded as having such an impairment.1 According to recent guidance released by the EEOC in a March 27 webinar, it is unknown whether COVID-19 would itself qualify as a disability under

The COVID-19 pandemic is creating havoc on all business sectors, including the commercial real estate industry. Among many challenges are determining safe and secure mechanisms for documenting business transactions and coordination and transmittal of the information needed to consummate them.  This is an appropriate time to revisit the benefits of blockchain, a transparent and secure method of document and information delivery, which has the added benefit of reducing personal interaction between the participants to the transaction. Blockchain, once known primarily as

The Coronavirus Aid, Relief, and Economic Security (CARES) Act and the Family First Coronavirus Response Act (FFCRA) contain provisions to help employers maintain their workforces. Notably, the relief available to employers under both Acts focuses on payroll and extends to certain nonprofit organizations. Below is a description of the relief available to nonprofit organizations under the CARES Act and FFCRA. Paycheck Protection Program Under the CARES Act, the federal government created the Paycheck Protection Program (PPP) to assist small businesses, including nonprofits,

On April 3, 2020, in response to the ongoing COVID-19 pandemic, Chief Judge Mary Ellen Barbera of the Maryland Court of Appeals issued a trio of administrative orders. One of the orders—“Administrative Order on Tolling or Suspension of Statutes of Limitations and Statutory and Rules Deadlines Related to the Initiation of Matters and Certain Statutory and Rules Deadlines in Pending Matters”—is sure to catch the attention, and raise questions, for litigators across the state. What Does the Order Say? Under sections (a)

On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security (or “CARES”) Act, the largest stimulus in American history (the “Act”). The Act expands eligibility and loosens restraints on the Section 7(a) Loan Program of the U.S. Small Business Administration (“SBA”), authorizes up to $349 billion in new Paycheck Protection Program Loans (“PPP Loans”), makes them 100% (rather than 75%) guaranteed and provides for PPP Loan forgiveness in certain circumstances. On April 2, 2020, the

The Coronavirus Aid, Relief, and Economic Security Act (“Act”) contains several business relief provisions, including an employer payroll tax deferral (“Deferral”) and a companion provision allowing an employee retention credit (“Credit”). 1.    Deferral The Act allows for deferral of the employer portion of Social Security tax imposed by I.R.C. Section 3111(a). Deferral does not apply to employee income tax withholding, the employee or employer portion of the Medicare tax, or the employee portion of the Social Security tax. There are no employer eligibility requirements

On Friday, April 3, 2020, Maryland Governor Larry Hogan issued Executive Order 20-04-03-01, which amended and restated his March 16, 2020, Executive Order in its entirety.  In the March 16 Executive Order, Governor Hogan placed temporary prohibitions on evictions for residential real property. The April 3 Executive Order extended that temporary prohibition to commercial and industrial real property. Therefore, until the current state of emergency is terminated and the catastrophic health emergency is rescinded, no Maryland court may grant judgment for

On April 1, 2020, the IRS finalized Form 7200 – Advance Payment of Employer Credits Due to COVID-19 and the accompanying instructions. The Form provides additional guidance for eligible employers to take advantage of refundable tax credits under the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief and Economic Security Act (CARES) Act. Background Employer Relief under the FFCRA. Under the FFCRA, an eligible employer’s costs associated with required paid family and sick leave are offset dollar-for-dollar (up to

On March 30, 2020, the Secretary of the Department of Health and Human Services (HHS) acted pursuant to the declared COVID-19 public health emergency and granted blanket waivers—effective March 1, 2020—of certain provisions of Section 1877(g) of the Social Security Act, otherwise known as the Physician Self-Referral (or “Stark”) Law. The Stark Law prohibits a physician from making referrals for certain designated health services payable by Medicare to an entity with which he or she (or an immediate family member) has

Governor Hogan, in conjunction with the Maryland State Department of Education (MSDE), has taken action to ensure that child care is available and free for essential personnel during the pandemic. Initially, Governor Hogan permitted MSDE to waive certain regulations so that child care centers would have capacity to accommodate children of emergency workers. However, last week, Governor Hogan and MSDE went further and ordered all child care centers to close unless the centers provide services to “essential persons.” The Executive

On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act, H.R. 748 (the “Act”), which contains a host of tax measures as part of a $2 trillion aid package to provide economic stimulus in the wake of the COVID-19 pandemic. While the focus of the legislation is not tax, a large number of tax provisions are included in the Act, which affect both individuals and businesses. Important Note:  The following is a general summary of

The spread of COVID-19 is taking the world by storm with unprecedented and far-ranging consequences. During this extraordinary time, many employers are dealing with difficult issues regarding their workforces amidst office closures, shelter-in-place orders and other disruptions. Below we provide general guidance to common questions and scenarios with respect to workers in H-1B status during this challenging time, although particular cases will require an individualized assessment. 1.    Can an H-1B worker be furloughed or placed in other unpaid leave status? No, an

In response to the significant challenges related to the COVID-19 pandemic, the U.S. Department of Homeland Security (DHS) and the Department of State (DOS) have recently implemented temporary operational changes and immigration-related measures. Below are some of the important updates impacting U.S. employers and their foreign national workers. Suspension of Routine Visa Services by the DOS The DOS is temporarily suspending routine, non-emergency visa services at all U.S. embassies and consulates. Embassies and consulates will cancel all routine immigrant and nonimmigrant visa

The United States Environmental Protection Agency (EPA) has staked out its position on environmental compliance during the COVID-19 pandemic with the issuance of a temporary policy on how it will apply enforcement discretion to violations resulting from the pandemic. While the policy was just issued on March 26, 2020, it will apply retroactively beginning March 13, 2020, and does not yet have an end date. EPA will be assessing the need for the policy on a regular basis and has

In light of the COVID-19 pandemic, Maryland corporations and their boards of directors are reassessing previously authorized and declared distributions (aka dividends) to stockholders. Here’s what you need to know: If the board of directors has “authorized” the distribution, but not made any public announcement or “declared” the distribution, the distribution may be freely rescinded by board action.  If shares of stock receiving the distribution are traded on an exchange and the ex-dividend date has passed, in addition to the state law

Many jurisdictions, including Maryland, the District of Columbia and Virginia, have faced court closures and other logistical issues surrounding the current COVID-19 emergency. This is in addition to proclamations and orders issued by the Department of Housing and Urban Development that have placed a moratorium on foreclosures and evictions for millions of Americans with FHA-insured mortgages for a period of 60 days. This article highlights the temporary changes to the foreclosure and eviction process in Maryland, D.C. and Virginia. Maryland In Maryland,

Unfortunately, many of the regulations governing employers’ obligations to their employees provide little guidance on how to navigate a global health pandemic like coronavirus. This is particularly true for regulations issued by the Occupational Safety and Health Administration (OSHA), which are the primary source of an employer’s obligations to provide a safe working environment, but are ill-suited to address the current health crisis. To provide clarity on the obligations of employers relating to Coronavirus, OSHA recently created a COVID-19 Resource

The U.S. Department of Labor (DOL) yesterday issued its Families First Coronavirus Response Act (FFCRA) “Employee Rights Paid Sick Leave and Expanded Family and Medical Leave under The Families First Coronavirus Response Act” poster for most public employers and private employers with fewer than 500 employees to post in the workplace. The poster informs employees of their rights under the FFCRA. The DOL also posted helpful frequently asked questions concerning the poster. The frequently asked questions clarify that the posting requirement

Effective as of 10 p.m. on March 25, 2020, Mayor Muriel Bowser ordered cessation of all onsite operations of non-essential businesses that cannot be performed at home except for “Minimum Basic Operations.” The Order is effective through April 24, 2020, and prohibits gatherings of more than 10 people in an attempt to prevent the further spread of the coronavirus. Non-Essential Businesses. The order requires the cessation of all non-essential businesses in the District of Columbia other than those that can be conducted

Annual Shareholder Meetings As Virginia corporations navigate this year’s annual shareholder meeting season, many have come face-to-face with the COVID-19 pandemic. The social distancing requirements related to the pandemic will often deter—or prevent—in-person shareholder meetings. At the same time, there is disinformation circulating regarding the availability of virtual shareholder meetings under Virginia law. Here are the key points: Governor Northam’s Executive Order #53 of March 23, 2020, expressly bans all public and private in-person gatherings of 10 or more individuals. This applies

On March 22, 2020, the Centers for Medicare & Medicaid Services (CMS) implemented substantial administrative relief for clinicians, providers and facilities participating in Medicare quality reporting programs, including widely implemented programs like Medicare Shared Savings Program Accountable Care Organizations (ACOs) and the Merit-based Incentive Payment System (MIPS). These measures include extensions of deadlines and delays in reporting requirements for certain quality programs in order to alleviate the administrative burden on health care providers during the COVID-19 crisis. For example, CMS

On March 24, 2020, the Department of Labor issued its first published guidance relating to the Emergency Paid Sick Leave (EPSL) and Emergency FMLA (EFMLA) established under the Families First Coronavirus Response Act (FFCRA). For a full explanation of the FFCRA, please see our prior blog.  The three guidance documents from the DOL are available here, here and here. The most notable piece of information is that the law is going into effect a day earlier than anticipated—on April 1, 2020.

Employers with a unionized workforce are familiar with the general prohibition under the National Labor Relations Act (NLRA) against unilaterally changing terms and conditions of employment that are specifically covered by an existing collective bargaining agreement (CBA). For terms and conditions not specifically covered by an existing CBA, employers also know that they may not make changes without bargaining to an agreement or reaching an impasse over those issues. However, what may an employer do when faced with an unforeseen

On Monday, March 23, 2020, Governor Northam issued Executive Order 53 (“EO53”) ordering the statewide closure of recreational and educational businesses to the public, non-essential retail businesses, all K-12 schools for the remainder of the academic year, banning all gatherings of more than 10 people, and restricting Essential Retail Businesses and Professional Service Businesses to complying with the CDC guidelines. This order went into effect yesterday (Tuesday March 24, 2020, at 11:59 p.m. and will remain in place until 11:59 p.m.

As the Coronavirus (COVID-19) spreads, a growing number of employers are considering terminating or furloughing employees. This has raised a number of Maryland unemployment compensation questions that, although not specifically related to the COVID-19 pandemic, result from its effects on employees and employers alike. This article provides guidance on the most common COVID-19 related unemployment issues. Determining a claimant’s weekly benefit amount (WBA) in Maryland. A claimant’s WBA is approximately 54% of gross weekly wages up to a maximum of $430 per

On March 20, 2020, the United States Trade Representative (USTR) announced that it was accepting public comments on possible modifications to the tariffs imposed on Chinese products as a part of the Section 301 action to address “China’s acts, policies and practices related to technology transfer, intellectual property and innovation.”  See. Although many medical/health-related products were excluded from these tariffs, the USTR is seeking identification of additional products currently subject to the tariffs that may be beneficial to combatting the

On March 23, 2020, the Maryland Secretary of Health issued an Order and Directive (the “Directive”) that addresses a number of different health care issues for the prevention and control of COVID-19. One area addressed is the postponement of elective surgery. The Directive orders all Maryland licensed hospitals, ambulatory surgery centers and other licensed health care facilities to cease all elective and non-urgent medical procedures effective as of 5 p.m. on Tuesday, March 24, 2020, and to not permit any

A key tool in mitigating the risks due to unforeseen events is the force majeure clause contained in many commercial and other types of contracts.  In various states, including Maryland, residential and commercial construction companies have been deemed “essential” and may remain open even when a shelter-in-place order has been executed by a state’s Governor.  So how will COVID-19 affect construction contracts and, in particular, will a force majeure clause contained in a construction clause provide any relief should delays

As Maryland corporations navigate this year’s proxy season, many have come face-to-face with the COVID-19 pandemic. The social distancing requirements related to the pandemic will often deter—or prevent—in-person stockholder meetings. At the same time, there is disinformation circulating regarding the availability of virtual stockholder meetings under Maryland law. Here are the key points: If the bylaws authorize the board of directors to determine the place of a stockholder meeting, Maryland corporations may cause a stockholder meeting to be held as a

To assist our clients with properties in Montgomery and Frederick Counties, and the Cities of Gaithersburg, Rockville and Frederick, with understanding how the Covid-19 related closures may affect their pending and anticipated land use and regulatory entitlement reviews, we offer below a summary of how the various jurisdictions are approaching the situation. This information is current as of March 22, and is subject to change at any point. For further information, or to better understand how these closures may impact

Earlier today, Governor Hogan enacted Amended and Restated Executive Order (20-03-23-01) closing all non-essential businesses in the State of Maryland by 5 p.m. today. Here’s what you need to know: Non-Essential Businesses include all businesses, organizations, establishments and facilities that are not part of the critical infrastructure sectors identified by the U.S. Department of Home Security’s Cybersecurity and Infrastructure Security Agency. If your business is included in a designated critical infrastructure sector, and therefore an Essential Business, it is not impacted

With the novel coronavirus (COVID-19) causing Employers to switch to teleworking or temporarily shuttering their operations, government contractors have special challenges. Some employees of government contractors may not be able to work remotely under the terms of the government contract and others who perform classified work or need access to government networks may not be able to telework. Therefore, due to COVID-19, temporary furloughs of employees working for government contractors are likely. Government contractors should plan now for possible furloughs

On Monday, March 16, 2020, Governor Hogan, in an effort to slow the spread of the coronavirus, by executive order, ordered the closure of all Maryland bars, restaurants, movie theaters, and gyms until such time as the state of emergency, declared by Governor Hogan on March 5, 2020, is terminated and the proclamation of the catastrophic health emergency has been rescinded or until the executive order is otherwise rescinded, superseded, amended or revised by additional orders. During that time, however,

On March 18, 2020, the United States Senate passed the revised “Families First Coronavirus Response Act,” (“FFCRA”) that had been passed by the United States House earlier this week, which President Trump has now signed.  The FFCRA becomes effective within 15 days (April 2, 2020), so employers should immediately begin preparations to ensure compliance with the law. Importantly, the new law does not require that employers provide paid leave for employees who are off work just because of an office closure.

As of March 18, 2020, Maryland regulators have temporarily suspended certain child care licensure requirements in order to expand access to child care for school-age children of “emergency personnel.”  The state has identified “emergency personnel” as employees who work in hospitals and first responders such as fire, police, doctors and nurses.  The State Superintendent of Schools for the Department of Education (the state agency responsible for licensing child care centers) took this action in response to the Executive Order issued

With the numerous changes to working procedures as a result of COVID-19, the impact on the Maryland State Department of Assessments and Taxation (SDAT) is no different. For filings that are unable to be completed online, SDAT is currently working on a plan for arranging appointments and/or scheduling times for the drop-off of documents and filings. SDAT continues to assess its resources and capabilities. Currently, SDAT is closed to the public and that is unlikely to change soon. If SDAT is

Senate Bill 1080 which was cross-filed with House Bill 1663, were recently passed by both the House (March 17, 2020) and the Senate (March 18, 2020). The Bill is on its way to Governor Hogan, who is expected to sign it into law. Among other issues, the Bill expands employees’ eligibility for unemployment compensation due to the impact of the current COVID-19 health emergency. Specifically, the Bill provides that an employee need not separate from employment to be eligible for unemployment

As the marketplace slows in response to the worldwide spread of COVID-19, companies are (or should be) breaking out their contracts and subcontracts to see what they say to protect themselves from current and future problems. Here are the critical provisions. All Contractors and Subcontractors All companies should review their contracts and subcontracts for force majeure clauses. The critical issues related to these clauses are outlined in two articles posted to our Coronavirus Task Force website. The articles can be found here

On March 16, 2020, the United States House of Representatives passed a “corrected” version of the Families First Coronavirus Response Act (FFCRA), which made some notable changes to the provisions impacting employers. The FFCRA’s major requirements for employers relate to paid leave, as follows: Emergency Paid Sick Leave (EPSL).  Private employers with fewer than 500 employees and all public employers must provide 80 hours of paid leave to all full-time employees who need to miss work because of illness or quarantine, or

The Telehealth Services During Certain Emergency Periods Act of 2020 (the “Act”) is part of the larger bipartisan Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020.  The Act gives the Secretary of the Department of Health and Human Services (HHS) the authority to waive certain existing limitations on Medicare coverage and payment for telehealth services furnished to Medicare beneficiaries, making it easier for seniors to receive telehealth services from their homes and through the use of their smartphones. The Act

In the sudden wake of COVID-19, courts across the United States and Europe are closing. Courts have taken steps to prevent the spread of the virus through closing to the public, postponing matters and extending deadlines. But important family and private client needs like divorce, division of and access to family assets, child custody disputes, child abductions, guardianships, emergency support, and domestic violence do not stop now. Even though courts, schools and many businesses are closed, family law emergencies continue—and

As a result of the COVID-19 (coronavirus) pandemic, the Federal Trade Commission’s Premerger Notification Office (PNO) has announced the implementation of a temporary e-filing system for filing and submission of premerger notification documents under the Hart-Scott-Rodino Act (the “HSR Act").  The HSR Act requires parties to proposed transactions that meet certain transaction size and other thresholds to file premerger notifications forms with the Federal Trade Commission (FTC) and U.S. Department of Justice’s Antitrust Division (DOJ), and to observe a mandatory

CMS issued guidance on March 9, 2020, that allows hospitals to set up alternative screening sites on campus and at off-campus, hospital-controlled sites.  The guidance provides the following options:  Alternative Screening Sites On-Campus – The guidance states that the medical screening exam (MSE) that hospitals are required to provide to every patient that presents to the emergency department (ED) is not required to take place in the ED; hospitals may set up alternative sites on campus to perform the MSEs, including

On March 13, 2020, President Trump declared a national state of emergency as a result of the coronavirus (COVID-19) outbreak.  Regardless of the intensity of the emergency from COVID-19 in a particular area, the President’s declaration allows the federal government, under Section 1135 of the Social Security Act, to waive many of the day-to-day requirements imposed on health care providers by Medicare, Medicaid and the Children’s Health Insurance Program. Additionally, health care providers now have an opportunity, either collectively or

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

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

The increased use of agricultural land for utility scale solar generation facilities (solar fields that generate power for sale) has many Maryland counties struggling with how to balance two public interests – renewable energy and farmland. The ideal location for a utility scale solar generation facility (solar farm) is a large swath of flat, cleared land (i.e., farmland). The availability of agricultural land, either through purchase or lease, coupled with Maryland’s renewable energy goals and the community solar pilot project (discussed

As 2018 draws to a close and much of the world is celebrating the holiday season, the immigration world is preparing to enter another H-1B lottery season. For an overview of the H-1B program and H-1B lottery, please see our December 3 blog. Current H-1B Adjudication Trends Until last year, receiving a Request for Evidence (RFE) was the exception rather than the rule and a denial was a rare occurrence. Now, it is fairly common for an H-1B petition to result in the

On December 6, 2018, in an unreported decision, Maryland’s Court of Special Appeals permitted plaintiffs in product liability litigation in Baltimore City Circuit Court to obtain broad discovery into joint defense agreements, communications between a defendant and its consulting expert, and documents in a sealed insurance litigation.  The Court of Special Appeals permitted such discovery because it found the appeal of the defendant, Union Carbide Corporation (“UCC”), to involve issues not ripe for decision under Maryland’s collateral order doctrine. According

Tipsy employees create a slew of risks for employers, and the annual holiday party may be one of the only times in the year when employees have the chance to imbibe together. This doesn’t mean that employers have to be the fun police, but they should take care to minimize risks wherever possible. 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 state. Maryland’s social host

This year, 2017-2018, the Supreme Court issued numerous cases impacting employers. Here is an overview: Janus v. AFSCME: The case disputed the validity of state laws permitting public sector unions to collect “fair share” or “agency” fees from represented nonmembers. Despite precedent upholding agency fee arrangements, the Supreme Court rejected stare decisis and struck down the fee arrangements stating that they violated the First Amendment. The Court held that public sector unions cannot compel nonmembers to pay fees for collective bargaining services of a

The Department of Homeland Security (DHS) published today in the Federal Register a notice of proposed rulemaking that would change how employers file cap-subject H-1B petitions and how USCIS conducts the H-1B lottery process. The proposed rule would require employers to first electronically register with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period. The proposed rule would also reverse the order in which USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption. Background on the H-1B

As attracting and retaining employees grows increasingly critical to a business’s success, the pressure is mounting for employers to ensure accurate and consistent execution of leave policies, sometimes across multiple corporate locations nationwide. However, it is becoming more and more difficult for employers to keep up and comply with the changing regulations regarding employee leaves of absence. With additional state and local leave and paid leave laws coming into effect and with the trend of more jurisdictions considering adopting such

On a day yielding no sunshine, but rather the first snow of the winter season in parts of Maryland, the Maryland Court of Special Appeals reissued its decision inBoard of County Commn. of Washington County v. Perennial Solar, LLC, (citations currently unavailable), as a reported opinion. Perennial Solar may now be used as precedent for the proposition that state law preempts local zoning authority with respect to solar fields. On August 28, 2018, the Court of Special Appeals issued unreported opinion, Board of County

The DOL recently released its Fall Regulatory Agenda, signaling its intent to act on some important issues under the Fair Labor Standards Act (“FLSA”). Three items of note are on the agenda with upcoming dates: changes to the salary level for the overtime exemption; a joint employer rule; and clarification of regular rate and basic rate requirements. FLSA Salary Test In 2016, a Texas court struck down the Obama administration’s changes to the FLSA overtime regulations governing the standard for determining when an

On October 19, 2018, the IRS issued highly anticipated proposed regulations on opportunity zones. The guidance and interpretations in these regulations provide a clearer path for investment in the new “Opportunity Zone” program, a program that incentivizes the movement of capital into those low-income communities in all 50 states, the District of Columbia, and 5 U.S. territories now designated as qualified opportunity zones (“Opportunity Zones”) by offering taxpayers who invest in these Opportunity Zones 3 separate tax benefits – (1) temporary capital gain deferral;

The U.S. Department of Treasury (“Treasury”) is expected to issue regulations providing administrative rules and guidance to clarify the operation and application of the Opportunity Zone program (the “OZP”); such regulations are currently under review by the Office of Management and Budget as of the date hereof. This long-awaited Treasury guidance is expected as early as the end of October 2018. In December 2017, Congress passed the Tax Cuts and Jobs Act, which amended the Internal Revenue Code (the “Code”) to

On October 1, 2018, Maryland Senate Bill 853, also known as Maryland’s General Contractor Liability for Unpaid Wages Act, went into effect, expanding the liability of a general contractor on a construction project under the Maryland Wage Payment and Collection Law. In the paragraphs below, we detail what this means for contractors, subcontractors and their employees.   Generally, the Maryland Wage Payment and Collection Law requires that an employer set regular pay periods and pay employees at least once every two

In the months since the U.S. Supreme Court handed down its landmark decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31,[1] striking down compulsory agency fees for public employees on First Amendment grounds, there has been extensive public discussion of the ruling’s impact on public sector union finances, public employer operations, and even the potential implications for other compelled-fee organizations like bar associations. But there is another aspect of the court’s ruling, which has received

In our July 12, 2018 blog, we discussed a new U.S. Citizenship and Immigration Services (USCIS) policy requiring the issuance of a Notice to Appear (NTA), which initiates removal proceedings against a foreign national, upon the denial of an immigration benefit request where the denial renders the applicant “not legally present” in the United States. As we noted at the time, the new policy marked a potentially significant departure from previous practice and the ramifications were unknown, but concerning. USCIS had

** Important Note ** Small business size status will soon be determined by average revenues for five years, up from three years.  This exciting development will enable many businesses to remain in the small-business Government contracting category for years longer. This blog describes passage of the Small Business Runway Extension Act of 2018 by the House, and the Senate surprised with quick passage.  The bill now goes to the President, whose signature is expected.   Watch here for a future post about the effective

“Supervisory guidance does not have the force and effect of law, and the agencies do not take enforcement actions based on supervisory guidance.” On September 11, 2018, the Bureau of the Consumer Financial Protection, together with the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the National Credit Union Administration and the Office of the Comptroller of the Currency (the “agencies”) issued a joint statement clarifying the role of supervisory guidance (the “Joint Statement”), stating unequivocally that “[s]upervisory

During its 438th session, the Maryland General Assembly passed four bills that affect the Maryland General Corporation Law (the “MGCL”), all of which were supported by the Business Law Section of the Maryland State Bar Association. This update is intended to identify (i) bills that were passed affecting the MGCL in the last legislative session, and (ii) laws that will take effect on October 1, 2018. In the 2018 legislative session, the Maryland General Assembly: repealed the provision requiring articles of transfer; limited

On September 17, the President directed the U.S. Trade Representative (“USTR”) to impose additional tariffs on importers of Chinese goods. The official statement is available here.     To recap, this is the third tranche of tariffs on imported Chinese goods. The first tranche, which we blogged about here, went into effect on July 6, and covered 818 tariff schedule categories. To request an exclusion from the tranche one tariff increase, an importer must file its request with the Office of the USTR by October 9,

For better or worse, when your parents disapprove of the person you’ve chosen to marry, there’s not much recourse in the law (although some might call your parents’ attitude a form of intentional infliction of emotional distress). But according to one New York appellate court, the law does protect employees when their employer disapproves of their spouse. What’s more, it doesn’t even matter whether the employee is actually married as long as the employer believes that to be the case, nor does it matter

The state of Delaware recently enacted an amendment to the Delaware Limited Liability Company Act (the “Act”), effective August 1, 2018, which allows a limited liability company to divide into two or more limited liability companies, with the assets, liabilities and duties allocated among those companies in a plan of division. In order to divide a limited liability company, new Section 18-217 of the Act provides that the original limited liability company must adopt a plan of division and file

They say you can’t stop progress. And growth and development is an inevitable part of progress. The State of Maryland and its more rural counties have made efforts to find some balance to the inevitable growth and development by providing incentives to farmers to preserve agricultural land and our rural areas.  Despite all of the growth and development in Maryland, agriculture still remains an important industry in Maryland, and particularly in some of the less urban metro areas. Fortunately, the

The rains over the past few months of summer piqued the curiosity of some Maryland property owners who now would like to know if: (1) neighbors are liable for flood damage to adjacent or nearby properties, and (2) they are able to redirect water from their properties when doing so adversely impacts other properties. Much of Maryland experienced record breaking levels of rainfall over the course of the summer. While the rains may have caused certain crops to flourish, the

The EU General Data Protection Regulation (GDPR) took effect on May 25, 2018. Potential fines for violating the GDPR include up to four percent of an organization's annual profits or €20 million (approximately $23 million), whichever is greater. Despite the risks associated with failing to meet the GDPR standards, many companies are still working towards compliance.   If you are among this group, it is critical to not give up but, rather, to focus on actively continuing efforts to achieve (and

Does Maryland law require that experts rely upon epidemiology to establish medical causation in a toxic exposures personal injury case? In Sugarman v. Liles, decided on July 31, 2018, the Maryland Court of Appeals strongly implied that this was so, which may have fundamental implications for toxic tort cases going forward in the state.  No. 80, Sept. Term, 2017, 2018 WL 3642143 (Md. July 31, 2018).   The Court of Appeals in Sugarman wrestled with whether a pediatrics and childhood lead poisoning expert witness in

The Delaware Court of Chancery fundamentally altered the M&A litigation landscape when it expressed its skepticism of disclosure-only settlements in the case of In re Trulia, Inc. Stockholder Litigation, 129 A.3d 884 (Del. Ch. 2016). There has subsequently been much written about Trulia and the relative scarcity of disclosure-only settlements in its wake. Of significantly lesser renown, the Court of Chancery further observed in Trulia that adversarial motions for attorneys’ fees, following a corporation’s “mooting” of plaintiff-stockholder disclosure claims through supplementary disclosures, are free of

In the evening of July 13, 2018 (Friday), U.S. Citizenship and Immigration Services (USCIS) posted new policy guidance giving immigration adjudicators marching orders to deny an immigration application or petition without having to first issue a request for evidence (RFE) or notice of intent to deny (NOID) if the original submission lacks sufficient initial evidence to establish eligibility. This new policy guidance, effective September 11, 2018, rescinds USCIS’s June 3, 2013 policy guidance and represents a drastic policy shift, potentially to

The Office of the U.S. Trade Representative (“USTR”) has published the procedures for an importer to request an exclusion from the first round of increased tariffs on Chinese goods, available here. See 83 Fed. Reg. 32,181-32,184 (July 11, 2018).   Our previous blog post, available here, described the tariffs and why they are being imposed, in detail. To have covered goods or materials exempted from the higher duties, an importer has almost 90 days, until October 9, 2018, to file an exclusion request with the

Patents are valuable intellectual property assets that grant their owners a limited monopoly over the sale and use of the patented subject matter for a fixed period of time. The patent permits its owner to recover potentially significant sums of money when their patents are infringed. Damages for patent infringement may include reasonable royalties, lost profits, and in the event of willful infringement, trebled damages. Each jurisdiction with a patent system grants patents that provide protection within that jurisdiction’s territory

Last month, the Environmental Protection Agency (“EPA”) issued an Advance Notice of Proposed Rulemaking (“ANPRM”), entitled “Increasing Consistency and Transparency in Considering Costs and Benefits in the Rulemaking Process.” (83 FR 114; June 13, 2018). The ANPRM is soliciting public comment on whether and how the agency should revise the way it weighs costs and benefits in making its regulatory decisions. Various environmental laws like the Clean Air Act, Clean Water Act, and the Safe Drinking Water Act require a cost-benefit analysis in certain circumstances to

On July 5, 2018, U.S. Citizenship and Immigration Services (USCIS) published new guidance that will generally require that USCIS issue a Notice to Appear (NTA), and thereby initiate removal proceedings, upon its denial of an immigration benefit request where the denial renders the applicant “not legally present” in the United States. This reflects a dramatic change in prior practice that may have far-reaching implications for many.   What Is an NTA? The issuance of an NTA is the government’s method for instituting

The EU General Data Protection Regulation (GDPR) took effect on May 25, 2018. Potential fines for violating the GDPR include up to four percent of an organization's annual profits or €20 million (approximately $23 million), whichever is greater. Despite the risks associated with failing to meet the GDPR standards, many companies are still working towards compliance.   If you are among this group, it is critical to not give up but, rather, to focus on actively continuing efforts to achieve (and

California enacted the California Consumer Privacy Act on June 28, 2018. This law broadly expands the rights of California residents in their personal information collected through online means. The law imposes requirements tied to disclosure of what personal data is collected, how it is used, and with whom a data collector shares this information. Individuals may opt out of having their data sold. Data collectors are also required to provide specific disclosures in connection with security breaches of the data.

A breath of fresh air and a second wind was breathed into dreams and potential plans for a large wind farm in Allegany County, Maryland. The Court of Special Appeals of Maryland in Dan’s Mountain Wind Force, LLC, et. al. v. Allegany County Board of Zoning Appeals, __ Md. App. __, __ A.3d __ (2018)(Case No. 804, September Term 2016; filed April 3, 2018), recently held that the Allegany County Board of Zoning Appeals (the “BZA”) did not properly apply the

On June 4, 2018, the United States Supreme Court issued its long-awaited opinion in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, ultimately siding with the baker who refused to make a wedding cake for a gay couple. Voting 7-2, the majority found that the lower court had inappropriately dismissed the baker’s religious beliefs and in doing so violated his First Amendment right to the free exercise of religion.  However, the majority opinion was narrow and focused largely on the Commission’s

As was widely expected, the United States Supreme Court has held that mandatory agency fees for public sector employees are an unlawful violation of individuals’ free speech rights under the First Amendment to the U.S. Constitution.  The 5-4 majority opinion in Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al., No. 16-1466, 585 U.S. ___ (June 27, 2018), written by Justice Alito, overturned Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), a 40 year-old

If the parents have been deported and the 2,000 separated children are still in confinement in the United States, the crucial question is how to get them reunited with their parents very quickly. The 1980 Hague Abduction Convention is a potential mechanism to get separated children out of detention and home. The 1980 Hague Abduction Convention requires that wrongfully retained children must be returned forthwith to their habitual residence. So, by way of example, if Guatemalan parents have been deported to their home

On June 21, 2018, the Supreme Court of the United States issued a much anticipated decision in South Dakota v. Wayfair, Inc., No. 17-494, which involved a challenge to a South Dakota statute imposing a sales tax collection requirement on Internet retailers who sell merchandise or provide a service in South Dakota, even if the retailer has no physical presence or employees there.  This 5–4 decision has far reaching implications for on-line sales, because it opens the door for any state to

As required by statute and Executive Order, the CPSC published its semi-annual regulatory agenda on June 11, 2018, which summarizes regulatory changes that the CPSC expects to develop or review over the course of the upcoming year.   The June 2018 agenda should be of particular interest to companies involved in the manufacturing, distribution or sale of upholstered furniture, table saws, portable generators and recreational off-road vehicles (ROVs).   More specifically, the agenda highlights the following regulatory issues:   plans to prepare a briefing

Infrastructure investment is part of nearly every government wish list at the local, state and federal level. However, instead of just seeking to finance new infrastructure Washington D.C. has decided to approach the infrastructure issue by first analyzing its current infrastructure, including deferred maintenance. This effort has been viewed favorably by S&P Global Ratings (“S&P”) with a recommendation that other state and local governments conduct the same analysis. The District took a look at infrastructure financing during the development of its

The EU General Data Protection Regulation (GDPR) took effect on May 25, 2018. Potential fines for violating the GDPR include up to 4 percent of an organization's annual profits or €20 million ($23 million), whichever is greater. Despite the risks associated with failing to meet the GDPR standards, many companies are still working towards compliance.   If you are among this group, it is critical to not give up but, rather, to focus on actively continuing efforts to achieve (and maintain)

As instructed by President Trump, the U.S. Trade Representative (“USTR”) has just ordered a 25% ad valorem (according to the value of the article) tariff increase on hundreds of products coming from China. It is an increase, so if the previous tariff on a particular product was 5%, the new tariff will be 30%. The new tariffs are intended to target Chinese products in the aerospace, automobile, IT, communications, robotics, and industrial machine industries (under Harmonized Tariff Schedule of the United States

On June 4, President Trump nominated Peter Feldman as Commissioner of the U.S. Consumer Product Safety Commission. As we previously reported, the recent Senate confirmation of Commissioner Dana Baiocco created a 2-2 split between Democrats and Republicans. If, as expected, Mr. Feldman is confirmed, the Commission will have a Republican majority for the first time in almost 12 years. This will presumably enable Acting Chairman Ann Marie Buerkle to steer the Commission toward policies and practices that reflect her regulatory philosophy.    

Despite last minute veto threats from the White House, the bipartisan Consolidated Appropriations Act of 2018 was signed into law earlier this year. Buried deep in this massive omnibus spending bill is a major win for brownfields revitalization and redevelopment. According to the Environmental Protection Agency (“EPA”), the Brownfields Utilization, Investment, and Local Development Act of 2018 (the “BUILD Act”) provides both efficiency improvements to the administration of the existing program and additional incentives to sustainably redevelop and reuse the estimated 450,000 brownfield sites

During the Obama Administration, the National Labor Relations Board (“NLRB” or “Board”) adopted an aggressive approach to evaluating the legality of – and often striking down – employee handbook policies and rules, to the consternation of employers across the country. These cases involved, what until then, had widely been considered commonplace handbook policies unrelated to activity that is protected under Section 7 of the National Labor Relations Act (“NLRA”), but the Board, applying an expansive interpretation of a case calledLutheran

The United States Senate recently confirmed former Jones Day litigator Dana Baiocco as the newest Commissioner of the Consumer Product Safety Commission. Baiocco replaces former Commissioner Marietta Robinson, and her term runs through October 2024.   As previously reported Baiocco’s original nomination to the Commission was returned by the Senate, along with the nomination of Acting Chairman Ann Marie Buerkle and those of nearly 100 other nominees for various agencies in January of this year, before she was re-nominated by President Trump days

The EU General Data Protection Regulation (GDPR) took effect on May 25, 2018. Potential fines for violating the GDPR include up to 4 percent of an organization's annual profits or €20 million ($23 million), whichever is greater. Despite the risks associated with failing to meet the GDPR standards, many companies are still working towards compliance.   If you are among this group, it is critical to not give up but, rather, to focus on actively continuing efforts to achieve (and maintain)

U.S. Environmental Protection Agency (“EPA”) Administrator Scott Pruitt has made it clear that one of his top priorities during his tenure is to expedite cleanups at contaminated sites across the country. To achieve this goal while facing potential budget cuts, he has made several significant decisions over the last year to overhaul and restructure the Superfund cleanup program fro m within. First, as we discussed in our earlier post, A New Budget, a New EPA Administrator, and New Uncertainty for Superfund Cleanups,

The Consolidated Appropriations Act of 2018, which was signed into law on March 23, 2018, included two provisions affecting the low-income housing tax credit (“LIHTC”) program. One provision temporarily increased the total dollar amount of LIHTC that can be allocated. The other provision added a new minimum set-aside (the “Income Averaging Set-Aside”) that, for the first time, permits units occupied by tenants with incomes greater than 60% of area median income (“AMI”) to qualify as LIHTC units. Although the potential

The Tax Cuts and Jobs Act added a new tax deferral to encourage private corporations to grant more equity awards. If you’re thinking about it, consider whether the juice is worth the squeeze. The Juice One reason private companies don’t grant equity awards is that many employees are unable or unwilling to write a check for the taxes due when shares are issued. Employees with stock options usually prefer waiting until the company is sold or goes public, when their options can be cashed

For over two years, employers and financial institutions (specifically broker-dealers) that managed investments for retirement plans have been dealing with compliance and administration of the Department of Labor (DOL) Fiduciary Rule (the “Fiduciary Rule”), which primarily expanded the definition of “fiduciary” and created new prohibited transaction exemptions under the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code of 1986 (IRC). A more in-depth review of the mechanics of the Fiduciary Rule can be found here and here. The

In a Policy Memorandum issued on May 10, 2018 (USCIS Policy Memorandum), the U.S. Citizenship and Immigration Service (“USCIS”) proposed a substantial change in the manner in which it will calculate periods of unlawful presence for foreign students and scholars in F, J, and M nonimmigrant visa status. As a result, foreign students and scholars need to be more careful than ever to comply with all rules and regulations governing the maintenance of their status in the U.S. to avoid

On April 13, 2018, the United States Court of Appeals for the Federal Circuit issued a decision in Vanda Pharmaceuticals Inc. v. West-Ward Pharmaceuticals Int’l Ltd  upholding the validity of U.S. Patent 8,586,610 (“the ’610 patent”), which claims a method of personalized treatment for schizophrenia. The Federal Circuit further affirmed the district court’s finding of infringement and awarding of injunctive relief that will exclude a generic version of Fanapt® in various strengths for treating schizophrenia from the market until the ’610

The “Opportunity Zone Program” (“OZP”) was enacted as part of the Tax Cuts and Jobs Act of 2017 and is the first new economic development tax incentive program since the New Markets Tax Credits Program was enacted in 2000. OZP is designed to provide a federal tax incentive for investors to reinvest capital gains generated in 2018 into economically distressed areas. The incentive is two-fold: first the deferral, until December 31, 2026, of taxation of the amount of capital gain

For a U.S. person or business that sold to, or bought from, a foreign business or person $500 or more in certain services or intellectual property (“IP”) during the U.S. entity’s fiscal year ending in 2017, June 29, 2018 is the general filing deadline for submitting to the U.S. Department of Commerce, Bureau of Economic Analysis (“BEA”), a mandatory economics survey (Form BE-120). The Form BE-120 is a once-every-five-years survey conducted by BEA, titled “Benchmark Survey of Transactions in Selected

UPDATE:  Effective May 25, 2018, the SBA updated its regulations in an apparent attempt to invalidate the holding in Analytic Strategies. However, because the SBA termed this update a “technical correction,” which is a designation reserved for non-substantive matters, and because the update might not address the entirety of the holding in Analytic Strategies, it is not clear whether the update will result in the case being overturned. Nonetheless, the law in this area has once again returned to a state of uncertainty. It

On April 11, 2018, the Internal Revenue Service published Revenue Procedure 2018-26 (“Rev. Proc. 2018-26”), providing new guidance to issuers on the availability of remedial actions to preserve the status of tax advantaged bonds to cure nonqualified use of bond proceeds. Prior to the issuance of the new Revenue Procedure, the only remedial action available in connection with certain long-term private leases financed with tax-exempt bonds was a redemption or defeasance of the bonds. Now, however, the expansion of the remedial action rules

On March 30, 2018, the U.S. Department of State (DOS) published notices in the Federal Register seeking public comment on its proposal to amend Forms DS-260 and DS-160, which are the forms that must be completed by all immigrant and nonimmigrant visa applicants. The proposed amendments include adding questions that would require the disclosure of the visa applicant’s “identifiers” on a variety of social media platforms over the five year period prior to the completion of the application form. While the DOS

In our previous two posts, addressing bid protests in D.C. and Maryland, we provided the reader with a survey of the authorities and relevant protest procedures for procuring agencies in those jurisdictions. Those articles can be found here and here. To recap, Maryland can be characterized as having a predominantly centralized procurement system, with most purchasing authority being delegated by its Governor-led Board of Public Works, and many protest roads leading to the Maryland State Board of Contract Appeals.   D.C. is somewhat less centralized.

Miles & Stockbridge lawyer Sufen Zhang covers steps employers can take to prepare for a potential enforcement action by U.S. Immigration and Customs Enforcement. The following was published in an alert created by TerraLex, a worldwide network of law firms in which Miles & Stockbridge is the Maryland member firm. What are 3-5 critical action steps employers should take in order to ensure compliance with the US Federal Government in the event of a raid by ICE? In light of the government’s

For the second post in our three part series regarding state-level bid protests in the DMV, we turn our attention to the District of Columbia. In our first post we discussed the authorities and procedures for Maryland procurement protests. That article can be found at this link.   As should be apparent by the end of this series, D.C.’s bid protest process has many features that distinguish it from the Maryland and Virginia protest regimes. For example, whereas the procuring agency itself

The Maryland General Assembly passed legislation in the final days of the 2018 session that was aimed at addressing some of the issues brought to light by the #MeToo movement. The Disclosing Sexual Harassment in the Workplace Act of 2018 (“Act”) addresses two different but related areas. The Act has not yet been signed by Governor Hogan, however, the Act passed unanimously in the Senate and by a margin of 136-1 in the House so the chance of a veto is very

In 2015, Congress passed the Bipartisan Budget Act that created a new Centralized Partnership Audit regime that is effective for income tax returns filed of partnership taxable years beginning after December 31, 2017. These new changes will impact the ways partnerships structure their partnership agreements and the way they interact with the IRS. I.    Reporting Requirements of Partnerships Generally For federal income tax purposes, a partnership is not a taxable entity. Instead, a partnership is a conduit, and the items of partnership

In Encino Motorcars LLC v. Navarro, 2018 WL 1568026 (Apr. 2, 2018) (“Encino Motorcars II”), the Supreme Court recently concluded that “service advisors” in a car dealership were not entitled to overtime pay under the Fair Labor Standards Act (FLSA) because of a statutory exemption for certain “salesmen” in the auto industry. It was the second time the Court had addressed the case on successive reviews of Ninth Circuit decisions reviving the matter after a California federal district court had originally

This is part 1 of a 3 part series discussing state-level bid protests in the DMV.      For a contractor who just expended significant time and money to bid on a DMV state-level government contract, only to watch the award go elsewhere, disappointment is understandable. But, what if the contractor believes that the state agency got it wrong?  How can the contractor challenge the award? The answer is that the contractor can file a state-level bid protest to challenge the procurement result

Online retail giant Amazon recently shortened the list of potential locations for its future second corporate headquarters, referred to as Amazon’s “HQ2”, to twenty locations around the country. Three of those 20 locations for the potential new HQ2 site are located in the Maryland, District of Columbia and northern Virginia region. Regions that made the “short list” for the potential future HQ2 are all anxious to have Amazon select their area for the future HQ2 site, which Amazon estimates will

Last month, with its decision in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018) the Sixth Circuit broadened Title VII protection to include protection for individuals who are transgender or transitioning. The Court did not mince words, holding without question that “discrimination on the basis of transgender and transitioning status violates Title VII.” Harris Funeral Homes follows a recent Second Circuit decision holding that sexual orientation is protected under Title VII, which was reported previously on this blog. The

For a U.S. business enterprise that has or recently had 10% foreign ownership, May 31, 2018 is an important filing date. That Thursday is the general reporting deadline for submitting to the U.S. Department of Commerce, Bureau of Economic Analysis (“BEA”), a mandatory survey (Form BE-12) which details the extent of foreign investment in a U.S. business, or U.S. affiliate/division of a foreign business. This “benchmark” survey occurs every five years. Many U.S. companies do not know or have forgotten about

The corporate rate reductions included in the Tax Cuts and Jobs Act decreased the value of the Low-Income Housing Tax Credit (“LIHTC”) projects because a significant portion of an investor’s return is composed of federal income tax losses. In an effort to restore a portion of the lost value, the Consolidated Appropriations Act, 2018 (the “Act”) included two improvements to the LIHTC program that would (1) increase the amount of LIHTC allocations and (2) create a new minimum set aside test that

On April 3, 2018, in preparation for the discontinuation of the London Interbank Offered Rate (LIBOR; for background on the discontinuation of LIBOR, see our prior blog post), the Federal Reserve Bank of New York (“Reserve Bank”) began publishing three new reference rates. The three new rates are the Secured Overnight Financing Rate (SOFR), the Broad General Collection Rate (BGCR), and the Tri-Party General Collateral Rate (TGCR). The new reference rates, which are based on overnight repurchase agreement (repo) transactions collateralized

Electronic filing of bid protests and the $350 filing fee are finally here. On Monday, April 2, 2018, the U.S. Government Accountability Office (GAO) published a final rule implementing two key changes to the bid protest process that have been anticipated for several months. First, mandatory electronic filing of protests through the new Electronic Protest Docketing System (EPDS) is effective May 1, 2018. Second, as part of implementing EPDS, GAO is implementing a mandatory $350 filing fee to pay for the costs of

Enhanced debriefings are finally here.  On March 22, 2018, Shay Assad, the DoD Director of Defense Procurement and Acquisition Policy, issued a DoD-wide policy directive that, effective immediately, DoD is offering “enhanced postaward debriefings” to unsuccessful offerors.  Def. Acquisition Reg. Sys. Memo. No. 2018-O0011 (Mar. 22, 2018).  Mr. Assad’s policy directive, issued as a class deviation to the Federal Acquisition Regulation, gives practical effect to Section 818 of the National Defense Authorization Act for Fiscal Year 2018.  Accordingly, an unsuccessful offeror to

The U.S. Department of Homeland Security’s Office of the Inspector General (OIG) released a report on March 9, 2018 entitled: “USCIS Has Unclear Website Information and Unrealistic Time Goals for Adjudication Green Card Applications.” While this is not surprising news to those of us who practice in this field, the report highlights a significant problem with the processing time information that the USCIS disseminates to the public.   What Processing Time Information Does the USCIS Publish? The USCIS regularly posts data on

Is Maryland drifting toward Daubert? The Court of Special Appeals of Maryland seemed to confirm (or re-confirm) this as recently as in Sissoko v. State. There, the Court of Special Appeals determined that the trial court properly admitted expert testimony from prosecutors about abusive head trauma in infants.   A quick refresher on Daubert: under Federal Rule of Evidence 702, a court will look at the following factors to determine whether scientific testimony (i.e., both methodology and conclusions) is reliable: (1) whether the technique has been

The DLLR recently issued new guidance concerning the Maryland Healthy Working Families Act for employers. The new guidance takes the form of sample policies and updated or new responses to the previously posted frequently asked questions. The new guidance is helpful and may answer some of the questions employers face as they implement the Act. The new guidance may be found here. The sample policies address three different scenarios: (i) an employer that awards sick and safe leave at the beginning of

The Maryland General Assembly is currently considering House Bill 1390 (“HB1390”). As introduced, HB 1390 will materially impact the utility of the Development Rights and Responsibility Agreement (“DRRA”) for land owners, developers and local jurisdictions.    In a three part blog series that included “Development Rights and Responsibility Agreements: The Give and Take of Development”; “Two Recent Maryland Rulings on Development Rights and Responsibility Agreements”; and “A New Maryland Ruling on Development Rights and Responsibility Agreements – Score Another Round for

On Friday, February 23, 2018, the Texas Supreme Court 1 overturned a lower court’s ruling that attorney-client privilege does not extend to patent agents. The ruling, bound to reverberate throughout the intellectual property industry, may bring relief to entities utilizing patent agents.   At issue was whether patent agents can assert attorney-client privilege to protect their communications with clients made in the context of patent prosecution. The issue arose in a dispute between inventor Andrew Silver and Tabletop Media LLC, which markets a

Federal regulations prohibit “related entities” from filing more than one H-1B petition on behalf of a foreign national unless there is a legitimate business need to do so.  This rule is designed to prevent H-1B petitioners from seeking to exploit the random H-1B lottery system by filing multiple petitions in an effort to increase the chance of having one selected in the annual lottery.   The applicable regulations do not define the term “related entities” other than by example, stating in

With its en banc decision on February 26, 2018 in Melissa Zarda v. Altitude Express, Inc., No. 15‐3775 (2d Cir. Feb. 26, 2018), the Second Circuit Court of Appeals became the second federal appeals court to hold that sexual orientation discrimination is prohibited sex discrimination under Title VII of the federal Civil Rights Act of 1964, which expressly prohibits discrimination based on sex, but not sexual orientation. Last year in Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. Apr. 4, 2017), the

On February 23, 2018, the Miles & Stockbridge Labor, Employment, Benefits & Immigration practice group presented its annual Hot Topics in Employment Law seminar to an audience of nearly three hundred clients and members of the Baltimore business community. The topics covered throughout the seminar included sexual harassment in the #MeToo era, drugs and alcohol abuse in the workplace, and the 2017 year in review. Here are the highlights: Sexual Harassment in the #MeToo Era A 2016 Equal Employment Opportunity Commission (“EEOC”)

Anyone with a social media account has likely recently seen a friend start a side-hustle selling products to their network through a direct sales company. The direct sales industry has experienced a renaissance since the Great Recession and shows no sign of slowing down. Direct sales companies have changed the way many people buy and sell products, and they have allowed many sellers to engage in potentially lucrative work with great flexibility. But are these sellers opening themselves up to

During the brief period in late 2017 when there was a 3-2 Republican majority on the National Labor Relations Board, the Board issued a few decisions undoing some of the most union- or employee-friendly decisions of the Obama-era NLRB. One of those decisions was Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017), in which the Board overruled the Obama Board’s dramatic expansion of the standard for joint employer status. In Browning-Ferris Industries, 362 NLRB No. 186 (2015), the Democrat-majority NLRB under President

U.S. Citizenship and Immigration Services (USCIS) announced that it will accept credit card payments at no additional cost for the USCIS filing fees associated with filing most of its forms. The credit card payment option is now available for 41 fee-based forms processed at USCIS Lockbox facilities, including commonly used forms such as Form I-140 (an employment-based immigrant petition), Form I-130 (a family-based immigrant petition), Form I-129F (a fiancé visa petition), and Form I-485 (an application for adjustment of status).

In a case of first impression in Maryland, the Court of Appeals of Maryland recently held in Waterman Family Limited Partnership v. Boomer, 456 Md. 330, 173 A.3d 1069 (2017) that a newly elected Board of County Commissioners (“BCC”) has the common-law authority to rescind the decision of an outgoing BCC’s approval of a rezoning project. The case arose out of the Town of Queenstown (the “Town”) in Queen Anne’s County (the “County”), on the eastern shore of Maryland when the Waterman

Companies regulated by the Environmental Protection Agency (EPA) have long complained that EPA too often uses guidance documents improperly, both to expand regulatory requirements beyond what the law permits and to avoid judicial review of such expansions. Moreover, regulated parties often argue that EPA rigidly enforces such guidance as binding federal rules, but ignores such guidance when it likes. Without expressly referencing EPA, the Department of Justice (DOJ) has now taken action that will make it harder for such alleged

The U.S. Department of the Treasury’s Bureau of the Fiscal Service (the “Treasury”) announced on February 9, 2018, that the Treasury is resuming the sale of State and Local Government Series (SLGS) nonmarketable Treasury securities, effective February 12, 2018, at 12 p.m. ET. As discussed in our December 7, 2017, alert, the Treasury suspended the sales of SLGS on December 6, 2017. The suspension was necessary to assist with Treasury's management of the debt subject to limit. On February 9, 2018, President Trump signed

Property Assessed Clean Energy (PACE) financings are an alternative financing tool used to finance energy efficiency upgrades or renewable energy projects in residential, commercial and industrial properties. PACE financings allow for the payment of the costs of the energy project over time which is tied to the property, and not to the property owner.   In a December 7, 2017 letter, the U.S. Department of Housing and Urban Development (“HUD”) stated that the Federal Housing Administration (“FHA”) would no longer insure

Employers are abuzz about the upcoming start of the Maryland Healthy Working Families Act, which goes into effect this Sunday, February 11, 2018.  Contrary to some local news reports, efforts to delay this bill have not yet been successful and will still be an uphill battle.   As readers may recall, House Democrats recently won a six-year battle for paid sick leave, which ended with an override of Governor Hogan’s veto. As we reported to you last month, the Maryland General Assembly

A “seriously delinquent tax debt” will affect the ability of a U.S. citizen to use, or apply for, a passport. Section 7345 of the Internal Revenue Code (“IRC”) permits the Secretary of State to deny, revoke or limit a citizen’s passport upon receipt of a certification from the Commissioner of Internal Revenue Service (“IRS”) that the citizen has a seriously delinquent tax debt. Though IRC §7345 was enacted in 2015, the IRS and State Department began implementing these rules in January

In October 2017, the United States Senate voted to invalidate a rule promulgated by the Consumer Financial Protection Bureau (“CFPB”), which would have prohibited financial institutions from using arbitration agreements in which the consumer waives the right to participate in a class action. The rule—which was announced by the CFPB in July 2017 and was not yet in effect at the time it was invalidated—prohibited class action waivers imbedded in consumer arbitration agreements (the “Arbitration Rule”). If the Arbitration Rule

On December 1, 2017, the Court of Appeals of Maryland heard arguments on an appeal from a decision holding that the state’s 20-year statute of repose bars asbestos claims that accrue after the enactment of the asbestos manufacturer exemption of 1991. Duffy v. CBS Corp., 232 Md. App. 602, cert. granted, 456 Md. 53 (2017).   The statute of repose limits liability for injuries which occur from “the defective and unsafe condition of an improvement to real property.”  MD. CODE ANN., CTS.

As a matter of first impression, the Pennsylvania Superior Court recently held that the Fair Share Act applies to strict liability cases involving asbestos exposure. In Roverano v. John Crane, Inc., 2017 PA Super. 415 (Dec. 28, 2017), a three-judge panel concluded that “the Fair Share Act explicitly applies to tort cases in which recovery is allowed against more than one person, including actions for strict liability.” Ultimately, the Superior Court vacated the trial court’s judgment and remanded the case for

By now, most government contractors with DoD contracts are at least aware that there is a DFARS clause requiring compliance with new cyber requirements by no later than December 31, 2017. These DFARS cyber requirements are mandatory for all DoD solicitations (DFARS 252.204-7008) and contracts (DFARS 252.204-7012) other than those solely for the acquisition of COTS items. Even the largest defense contractors have expressed concerns about how they will fully comply with these requirements, and how compliance will be enforced,

There has been a lot of talk in the news about the new tax law known as the Tax Cuts and Jobs Act of 2017, that was passed by Congress and signed into law in late December 2017. While most of the focus of the tax law was regarding the change in corporate and individual tax rates, it also included a new tax credit for employers who provide paid family and medical leave. Employers who wish to take advantage of

Congress’s use of stopgap measures – Continuing Resolutions – to fund the Government create the potential for shutdown of the Government if a Continuing Resolution expires without another funding measure in place. When the Government shuts down, the Government offices which rely upon appropriated funds execute their “orderly” shutdown plans, and the affected Government employees who are not considered excepted (a.k.a. “essential”) will be furloughed. To prepare for such a shutdown, Contractors should take action (before contracting officers leave for

It all started with good intentions. On May 10, 2016, Maryland approved the Contraceptive Equity Act. One purpose of the act is to require Maryland’s health insurers to cover vasectomies without charging deductibles, effective January 1, 2018. Sounds unobjectionable enough, right? Here’s the problem: requiring free vasectomies conflicts with the federal tax requirements of a health savings account (HSA). An HSA (offered in tandem with a high deductible health plan) must have minimum deductibles for coverage, other than preventive care. And there’s a list of what counts as preventive

More and more employers are seeking employees on the internet through targeted advertisements on Facebook. Employers can target these advertisements to certain users based on age, location, interests, experience, among other things, and the advertisements will only be sent to those users that fit the qualifications. Arguably these targeted advertisements help employers to get the advertisements to those potential candidates who will be most interested in or qualified for the job. However, older workers recently have argued that these targeted

Last week, we reported that the General Assembly had overridden Governor Hogan’s veto of the Maryland Healthy Working Families Act, and that employers in Maryland would be required to provide paid sick leave as soon as February 11, 2018. An emergency bill was introduced yesterday to delay the implementation of that Act for 60 days, which would give employers some breathing room to revise and implement their policies. Senate President Mike Miller had previously indicated a willingness to consider a

Highlights: Research study refutes concerns that bid protests delay DoD procurements and debunks other common myths. Congress enacts legislation requiring better debriefings and providing for “loser pays” pilot program. Over the past few years, critics of the bid protest system have claimed that too many frivolous protests inflict unnecessary and costly delays upon acquisitions by the Department of Defense (DoD). As one consequence of these criticisms, the National Defense Authorization Act (NDAA) for Fiscal Year 2017 commissioned a study of the bid protest

H.R. 1, originally known as the “Tax Cuts and Jobs Act,” makes certain changes to mortgage interest and property interest deductions. These changes will affect taxpayers who own real property, including homeowners and companies that own their business properties. Mortgage Interest Deduction Current law provides that “qualified residence interest” is generally allowed as an itemized deduction. Qualified residence interest includes interest paid or accrued on debt incurred in acquiring, constructing, or substantially improving a taxpayer’s residence (“acquisition indebtedness”) and home equity indebtedness.

As employers prepare to send employees their W-2s for last year by the end of the month, cybercriminals are preparing phishing emails under the guise of company executives requesting personal information on employees. The IRS has warned payroll and human resources professionals of the surge in these schemes particularly during the tax season when companies’ guards may be down and such requests may not appear out of the ordinary. These hackers have become more sophisticated in their schemes by researching the names of company

Last year, we reported that Governor Hogan had vetoed legislation that would have required most employers in Maryland to provide paid sick leave.  In one of its first actions in 2018, the General Assembly overrode the Governor’s veto of House Bill 1 (the “Act”) on January 12, 2018.  The law will now go into effect on February 11, 2018, per legislative guidelines.  While the Maryland Chamber of Commerce and others plan to seek an extension of the time for implementation, employers

The Maryland Court of Appeals recently heard and decided a case involving Development Rights and Responsibility Agreements.  In my first blog post on this topic, “Development Rights and Responsibility Agreements: The Give and Take of Development.” I discussed the purposes of and requirements for a Development Rights and Responsibility Agreement (“DRRA”) between a land developer and the local government having jurisdiction over the property. In my subsequent blog post, “Two Recent Maryland Rulings on Development Rights and Responsibility Agreements.” I discussed two decisions by

President Trump wasted no time in re-nominating CPSC Acting Chairman Ann Marie Buerkle for permanent Chairman and for a second term as Commissioner of the agency. Dana Baiocco was also re-nominated for Commissioner. As we recently reported, the Senate returned these nominations to the White House on January 3, 2018, along with those of almost 100 others who had been nominated for various agencies, departments and judgeships. A mere five days later, the White House announced the re-nomination of most of these candidates. Although

U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt says that expediting cleanups at Superfund sites is one of his top priorities. Since 1980, EPA has had the authority to clean up contaminated sites and force parties responsible for the contamination to either perform cleanups or reimburse the government for EPA-led cleanup work through the Superfund program, also known as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).   According to EPA’s website, as of November 2017, 1,736 sites have been placed

Amid the uncertainty plaguing brick and mortar retail establishments, some commercial landlords may find themselves with an extra tool in their arsenals to temporarily stave off tenant vacancies: continuous operations clauses. Conversely, these same clauses may force some commercial tenants to incur operational losses. Continuous operations clauses are covenants commonly found in commercial leases that compel tenants to operate efficiently and profitably by requiring them to conduct regular business at all times during the lease term. Some continuous operations clauses

On January 8, 2018, Senators John Cornyn (R., Texas) and Elizabeth Warren (D., Massachusetts) introduced a bill that, if passed, would require companies to file for relief under the bankruptcy code in a court near its principal place of business or where the principal assets of the company are located. See Senate Bill 2282. The proposed legislation removes language currently contained in 28 U.S.C. § 1408 that permits companies to file for bankruptcy where they are incorporated or where smaller affiliates operate. See 28

On October 3, 2017, the United States Court of Appeals for the Third Circuit held—in a case of first impression—that a manufacturer of a “bare metal” product may be liable for a plaintiff’s injuries caused by later added asbestos-containing materials. Roberta G. Devries and Shirley McAfee were widows of husbands who served in the United States Navy. Each filed a Complaint against a group of manufacturers alleging that their husband contracted cancer as a result of asbestos exposure. Devries alleged that

As previously reported here, Acting Chairman Ann Marie Buerkle has been awaiting U.S. Senate confirmation as permanent Chairman of the CPSC, and Jones Day litigator Dana Baiocco has been awaiting confirmation as the replacement for Commissioner Marietta Robinson. However, a degree of uncertainty has now arisen because last week the Senate returned these nominations to President Trump.   While ordinarily the Senate will hold over a pending nomination to the new Congress, such a nomination will be returned if a senator objects,

On March 7, 2017 and June 27, 2017, respectively, the Montgomery County Council enacted Bills 42-16 and 13-17 to provide a property tax credit for elderly individuals and retired veterans. Individuals eligible to receive the tax credit are either: (i) individuals sixty-five years old or older (birthday on or before June 30, 1953) who have lived in the same dwelling in Montgomery County, which is assessed for no more than Six Hundred and Fifty Thousand Dollars, for at least forty

As mentioned in our last blog post, H-1B petitions filed during 2017 were subjected to a dramatic and unprecedented increase in scrutiny by the U.S. Citizenship and Immigration Service (“USCIS”). As a result, thousands of H-1B petitions that previously would have been routinely approved were subjected to sometimes lengthy and nearly always burdensome USCIS Requests for Evidence (commonly called “RFEs”). Issues raised by the USCIS in these RFEs have included: Is the position a specialty occupation, meaning one that requires a degree

As 2017 and Chairman Phillip Miscimarra’s term drew to an end, the National Labor Relations Board (“NLRB” or “Board”) issued a flurry of decisions overturning several Obama-era NLRB decisions. Because Board members are appointed by the President, the political make-up of the Board (5 members), and its overall view of employer-employee-union behavior, changes on a fairly regular basis. However, the scope of the recent decisions is unusually broad and has resulted in many labor practitioners telling their clients, “Remember when

Uncertainty and speculation have swirled over the last few months regarding whether U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt would replace the Clean Power Plan (CPP) after proposing to repeal the plan in October. Or would the agency simply move forward with repeal without a replacement regulation? Administrator Pruitt has hinted at a replacement rule in interviews and in prepared remarks, but on Monday, the EPA provided the best evidence yet that the agency may be moving to replace

Given the flood of public sexual harassment accusations in recent months, a bipartisan coalition of lawmakers and celebrities have come together to introduce legislation that would eliminate forced arbitration clauses in employment agreements, which advocates say reduce negative exposure for businesses and discourage women from speaking out about sexual harassment and gender discrimination claims. If enacted, the “Ending Forced Arbitration of Sexual Harassment Act” would prevent businesses from enforcing mandatory arbitration agreements with regard to complaints of sexual harassment and gender discrimination

On Friday, December 1, 2017, the U.S. Environmental Protection Agency (EPA) decided NOT to finalize rules to require hard rock mines and mineral processing operations to provide financial assurance to fund future cleanups of their properties under the federal Superfund law (Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)). A link to EPA’s action can be found here. What a Difference a Year Can Make: Brief History of the Rule from Proposal to EPA’s Decision Not to Finalize Exactly a year before, EPA

While it’s holiday season for most of the world, in the immigration world December also marks the unofficial start of H-1B lottery season.   Background on the H-1B Visa The H-1B program allows employers in the United States to temporarily employ foreign nationals in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B specialty occupations may include occupations in a variety of

The General Data Protection Regulation (GDPR), a uniform regulation aimed at protecting customer and employee personal information, becomes enforceable on May 25, 2018. The regulation will be implemented and applied in all 28 EU member countries 1 and will cover all EU data subjects. 2 While GDPR will impact the data collection and usage practices of virtually all businesses having access to the personal data of EU data subjects, many companies remain unprepared to meet their new compliance obligations. GDPR covers all companies having a

The U.S. Department of the Treasury’s Bureau of the Fiscal Service (the “Treasury”) announced on December 6, 2017 the suspension of sales of State and Local Government Series (SLGS) nonmarketable Treasury securities, effective 12:00 noon Eastern Time, December 8, 2017. 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 raising the debt

2017 tax reform efforts may alleviate adverse deemed dividend tax treatment of foreign subsidiary support for the obligations of U.S. parent companies.  Present support is limited to the pledge of 66 ⅔rds of the stock in foreign subsidiaries, but that may change depending on the final Senate bill and the outcome of the conference committee deliberations. Current Law U.S. shareholders owning 10% or more of a controlled foreign corporation (CFC) are required to include in current income for U.S. tax purposes their

Bill O'Reilly. Harvey Weinstein. Kevin Spacey. Charlie Rose. Matt Lauer. It seems that every day the news covers one more explosive incident of sexual harassment in the workplace, with many allegations indicating that the harassment had been occurring for years before action was taken. Companies across the country are wondering:  “How do we keep this from happening to us?” While there is no “silver bullet” to preventing sexual harassment in the workplace, these recent cases demonstrate the importance of creating a

Following President Trump’s inauguration, and in response to his April 2017 “Buy American, Hire American” Executive Order, various agencies of the federal government have announced enhanced efforts to protect U.S. workers from discrimination. For example: U.S. Department of Justice (“DOJ”): In February 2017, the DOJ’s Civil Rights Division launched its “Protecting U.S. Workers Initiative.” This initiative is aimed at targeting, investigation, and bringing enforcement actions against employers that discriminate against U.S. workers in favor of foreign workers. U.S. Department of Labor (“DOL”):

Drug overdoses are now the leading cause of death for Americans under the age of 50. Of the drugs contributing to these deaths, prescription opioids, heroin, and the synthetic opioids, such as fentanyl, have risen dramatically over the past few years, leading President Trump to declare the opioid crisis a national emergency. By now, this grim news is well-known by most Americans, but the opioid epidemic may be hitting closer to home than Maryland-area employers realize. The Center for Disease Control reports that Maryland

On November 8, 2017, Suzzanne W. Decker, a Principal in the Miles & Stockbridge Labor, Employment, Benefits & Immigration practice group, and Sandra McLelland, Managing Counsel at Under Armour, presented a webinar to members of the Association of Corporate Counsel (“ACC”) on preserving the attorney-client privilege in corporate investigations and the extent to which internal communications may be protected by the attorney-client privilege or the attorney work-product doctrine.   Companies routinely perform internal investigations in response to employee grievances, whistleblower complaints

Introduced on November 9, 2017, the Senate Tax Bill would maintain private activity bonds (“PABs”). With this positive development, advocates will press Senate committee members to reverse their decision to terminate advanced refundings as of December 31, 2017. Advanced refundings represent almost 27% of the bond market according to Thompson Reuters. The end of advanced refundings would have a major impact on issuers and the market. Advanced refundings provide flexibility to issuers, and their termination would prevent issuers from taking

For the past several years the United States Supreme Court has sought to clarify the proper exercise of specific personal jurisdiction over foreign corporate defendants. This issue is particularly applicable in mass tort litigation where out-of-state plaintiffs are often grouped together with in-state plaintiffs for a consolidated trial setting. The Supreme Court addressed that concern in the groundbreaking decision Bristol-Myers Squibb Co. v. Superior Court, 137 S.Ct. 1773 (2017). In Bristol-Myers, the Supreme Court ultimately held that state courts could not circumvent the

On November 2, 2017, a bill called the “Tax Cuts and Jobs Act” was introduced to the United States House of Representatives. The bill seeks to simplify and reduce taxation for both individuals and businesses. Of interest to Estate Planners and our clients are the provisions relating to Federal estate, gift and generation skipping taxes. Here is a re-cap of current legislation and the possible future for Maryland residents: Federal and State laws currently impose taxes on transfers from an estate

Some of the potential impacts of the proposed Tax Cuts and Jobs Act (the “Act”), as currently drafted and described in our prior alert are summarized below for consideration. Draw-down bonds with an outstanding amount to be drawn may need to be drawn and/or escrowed prior to the effective date of the Act (currently proposed as December 31, 2017) to avoid potential characterization of post-effective date draws as newly issued bonds. There is some support for the concept that each draw of a draw-down

In my previous article “The Tiny House Craze: Zoning Laws Could Be a Tiny Impediment” I discussed the popular new “tiny house” trend in residential housing options. Along with the “tiny house” craze, another new and growing trend in housing options, particularly in urban areas, is the increasing popularity of the “micro unit.” Whether the popularity and demand is being driven by economic factors and the need for more affordable housing, or by peoples’ preference to downsize to a more simplified lifestyle,

On November 2, 2017, the House Committee on Ways and Means released a draft of its Tax Cuts and Jobs Act (the “Tax Bill”). The Tax Bill proposes to eliminate the federal tax exemption of interest income from all private activity bonds (e.g., exempt facility bonds, qualified 501(c)(3) bonds, qualified small issue bonds, qualified mortgage bonds, qualified redevelopment bonds and qualified veterans’ bonds), all tax credit bonds (e.g., qualified zone academy bonds, qualified energy conservation bonds, and new clean renewable

In February 2015, the Department of Homeland Security (“DHS”) issued a rule permitting certain persons maintaining H-4 nonimmigrant status to apply for and, if eligible, receive employment authorization from DHS.Employment Authorization for Certain H-4 Dependent Spouses, 80 Fed. Reg. 10,284-10,312 (hereinafter the “H-4 EAD Rule”). Eligible H-4 visa holders include those whose H-1B status spouse has an approved I-140 immigrant visa petition or a post-sixth year H-1B visa extension. Following publication of the H-4 EAD Rule, many H-4 visa holders

Human-resource professionals are a notoriously organized and efficient bunch. So it’s no surprise that we are often asked, “How long should I keep benefit plan records?” There’s no simple answer, unfortunately, and a record-retention policy needs careful consideration of the rules underlying the policy. IRS’s Statute of Limitations The IRS advises that you keep records long enough to respond to an audit. A plan is open to IRS audit, according to Section 6501 of the Internal Revenue Code, for three years after the filing

Property Assessed Clean Energy (PACE) Bonds are a financing tool used to finance energy efficiency upgrades or renewable energy projects in residential, commercial and industrial properties. Such projects might include increased insulation, sealing of air leaks, cool roofs and solar panels.   In a typical structure, a state, municipality or state/local agency would issue bonds and use the proceeds to provide loans to various individual homeowners and/or business owners. The property owner would use the proceeds of the loan to pay

The recent controversy surrounding NFL players kneeling during the National Anthem raises an interesting question concerning the protection of the National Labor Relations Act (NLRA) vis-à-vis work-place protests over social issues. Colin Kaepernick began protesting last year over his belief that minorities in this country are not treated fairly. His protest involved him kneeling during the playing of the National Anthem. His protest drew attention, but the attention was mostly focused on him and the San Francisco 49ers. What changed this

Many plaintiffs consider the Circuit Court for Baltimore City to be the asbestos capital of the Maryland courts. After all, the City has its own asbestos litigation rules, docket procedures, and even its own electronic filing system for asbestos cases. Specifically, since 1987, litigants have filed suits and handled discovery and trial dates under a Master Order docketed by the late Judge Marshal A. Levin. In the years following Judge Levin’s Order, plaintiffs’ attorneys have filed tens of thousands of cases

The Internal Revenue Service (the “IRS”) and The U.S. Department of the Treasury (the “Treasury”) proposed regulations on September 28, 2017 to update and streamline the public approval requirement applicable to tax-exempt private activity bonds issued by State and local governments (the “Proposed Regulations”) as imposed under the Tax Equity and Fiscal Responsibility Act of 1982 (“TEFRA Notice”). Issuers must comport with the TEFRA Notice requirement (see section 147(f)) when issuing all types of tax-exempt private activity bonds, as defined in section 141(e). Issuers can opt

It has long been thought that an employer may refuse to hire a foreign worker who: (1) is not currently authorized to work or (2) will require future visa sponsorship to work for the employer.  A new legal theory has developed challenging this traditional thinking. So far, the proponents of this developing legal theory have been beneficiaries of the Deferred Action for Childhood Arrivals (“DACA”) program. DACA beneficiaries (also known as “Dreamers”) have been granted temporary authorization to work, but their

In Private Letter Ruling 201725022 (the “PLR”), the IRS determined that rental income an S-corporation received from its operations is not passive investment income that would subject the S-corporation to termination. In the PLR, the taxpayer was an S-corporation active in the business of acquiring, developing, leasing and managing commercial real estate, primarily medical office suites and clinics.  The taxpayer received rental income in connection with such operations. An S-corporation with accumulated earnings and profits will be subject to the highest level

In the wake of the latest massive data breach, this one involving Equifax, more and more companies are likely wondering what they should do in the event that they are faced with a data breach that exposes the personal data of their employees or customers. Data security incidents involve complex legal issues that must be navigated carefully to reduce the risk of improper (or unnecessary) breach notification, attention from state and federal regulators, and potential class actions related to the

For a creditor, the difference between a perfected and unperfected security interest can mean the difference between full repayment and receiving mere pennies on the dollar (or nothing) in a bankruptcy. On August 30, 2017, a Wisconsin court (United States Sec. & Exch. Comm'n v. ISC, Inc.. 2017 WL 3736796 (W.D. Wis. Aug. 30, 2017)), provided a helpful reminder of the attention to detail that is required when drafting a UCC-1 financing statement (“UCC-1”) to ensure the security interests are

Online service providers have until December 31, 2017, to re-register a designated agent with the Copyright Office if they want to remain eligible for protection from copyright infringement liability under the Digital Millennium Copyright Act’s “safe harbor”. The 1989 Digital Millennium Copyright Act, also known as the “DMCA,” made significant changes to U.S. copyright law, including changes that offer online service providers such as website operators and Internet service providers protection from copyright infringement liability provided they meet certain eligibility requirements. The

Beginning on October 1, 2017, several new laws will go into effect in Maryland governing condominiums and homeowners associations (“HOA”). With so much of new residential real estate being developed as part of an HOA or a condominium regime, these new laws will affect many homeowners in Maryland. HOA Resale Inspection Fee – Under this new bill, an HOA is now authorized to charge a fee of up to $50.00 to conduct an inspection in connection with the resale of a lot

In 2015, a group of consumer groups filed a petition with the U.S. Consumer Product Safety Commission (“CPSC”) seeking to ban under the Federal Hazardous Substances Act the use of non-polymeric organohalogen flame retardants (“ORF”) from children’s products, furniture, mattresses and cases surrounding electronics. The petitioners assert that ORFs migrate from the products and create adverse health effects. CPSC staff reviewed the petition, and recommended rejecting it, concluding that there was insufficient data supporting the health risks asserted in the petition. Despite

Uber and other ride sharing companies have been at the forefront of the “gig economy” where websites and mobile applications (commonly called “apps”) connect workers to customers who need a temporary service. With the rise of the gig economy, one important question still remains unanswered: are those working in the gig economy employees of the company or independent contractors? Why It Matters: For years, Uber drivers have tried to convince a court that they are employees of Uber, rather than independent contractors,

Since 2011, the U.S. Supreme Court has continued to roll back the expansion of personal jurisdiction by lower courts and has set more limitations on where a plaintiff can sue corporate defendants. We have  watched this unfold in the Court’s rulings in Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924-929 (2011) and the seminal case Daimler AG v. Bauman, 134 S.Ct. 746 (2014). On June 19, 2017, the Supreme Court further rolled back jurisdictional expansion in Bristol-Myers Squibb Co. v.

The U.S. Consumer Product Safety Commission (“CPSC”), by unanimous vote, has approved a final rule providing that seven plastics in children’s toys and child care articles will no longer require third-party testing because they do not exceed limits on phthalates. The Consumer Product Safety Improvement Act of 2008 (CPSIA) bans children’s toys or child care articles containing concentrations above 0.1% of certain specified phthalates, and requires third-party testing to ensure subject products are in compliance before they can enter the stream of commerce

Feeling Discouraged About Immigration? You are not alone. Many agree that the U.S.’s current immigration system is in need of comprehensive legislative reform. In the absence of meaningful action by Congress, the strategy of the current Administration appears to be to subtly (and sometimes not-so-subtly) discourage immigration through executive order and agency action. The Secretaries of Labor, State, and Homeland Security have been directed to issue rules to protect the interests of U.S. workers in the administration of the immigration

On September 21, 2017, President Trump nominated Dana Baiocco to replace Commissioner Marietta S. Robinson when her term at the Consumer Product Safety Commission (CPSC) expires on October 26. Ms. Baiocco is a partner at Jones Day in Boston and a seasoned product liability litigator. Ms. Baiocco received a B.S. in 1988 from Ohio University and a J.D. from Duquesne University in 1997. She has experience in mass torts and consumer product litigation, as well as representing clients in CPSC matters.      Ms.

Climate change related cases are on the rise nationwide, just like sea water levels. In fact, according to a United Nations study released in May 2017, the U.S. has three times more climate change litigation cases than the rest of the world combined, and the number of countries with climate change cases has tripled since 2014. In conjunction with the increased number of cases, there has been an uptick in novel legal arguments lodged against governments, government officials, and industry to force

A Country Inn provides a venue for a cozy dinner or event and possibly an overnight stay nestled in a rural setting in Montgomery County. It is a nice, relaxing getaway from the hustle and bustle of the busier parts of Montgomery County. However, the Montgomery County Council is proposing to further limit Country Inn locations. Under the Montgomery County Zoning Ordinance, Country Inns that were not approved before the October 30, 2014 effective date of the comprehensive amendment to the zoning

As I write this article, powerful Hurricane Irma is bearing down on Florida, and Hurricane Jose is close behind it, farther out in the Atlantic Ocean. Hurricane Irma has already devastated parts of the Caribbean Islands, and now threatens Florida. By the time you read this, sadly, there will have been more damage and devastation. And these two storms come on the heels of Hurricane Harvey which just recently wreaked its own havoc on the City of Houston and coastal

On August 31, 2017, U.S. District Judge Amos Mazzant in Plano, Texas abrogated the United States Department of Labor (“DOL”) changes to the Fair Labor Standards Act (“FLSA”) regulations with respect to overtime pay (the “Overtime Rule”). The Overtime Rule would have raised the salary threshold for overtime eligibility to almost double the current threshold. While not absolute, this ruling provides employers a stronger inclination that the Overtime Rule will not survive, alleviating employers from the financial and administrative burden the new

The U.S. Consumer Product Safety Commission (“CPSC”) announced on August 29 it has provisionally agreed with Home Depot U.S.A., Inc. to a $5.7 million settlement of allegations that the retailer unlawfully sold recalled products over a four year period.  The settlement will almost certainly become final once The Commission considers public comments as required by its rules. The CPSC staff alleges in the settlement agreement  that Home Depot “knowingly” sold or distributed approximately 2,816 units of 33 different recalled products from 2012 to 2016,

Last year the U.S. Supreme Court in Kingdomware Technologies Inc. v. United States[1] appeared to have settled a long-standing dispute about whether the U.S. Department of Veterans Affairs must prefer service-disabled veteran-owned small businesses (“SDVOSBs/VOSBs”), instead of purchasing products or services from the General Service Administration’s Federal Supply Schedules. The Supreme Court ruled against the VA, holding that pursuant to the Veterans Benefits, Healthcare and Information Technology Act of 2006,[2] the VA was required to set aside a procurement whenever

Cisco’s midyear report showed that CEO fraud netted cybercrime five times more money than ransomware 1 over the last three years. CEO fraud is a scam in which cybercriminals spoof company e-mail accounts and impersonate executives to try and fool an employee in accounting or HR into executing unauthorized wire transfers, or sending out confidential tax information. The FBI calls this type of scam “business e-mail compromise” and defines BEC as “a sophisticated scam targeting businesses working with foreign suppliers and/or businesses that regularly perform

The IEC 62304 standard 1 specifies life cycle requirements for the development of medical software and software within medical devices. It is a standard that is harmonized between the European Union (EU) and the United States (US). This standard spells out a risk-based decision model on when the use of Software Of Unknown Pedigree (SOUP) is acceptable. The standard was developed from the perspective that product testing alone is insufficient to ensure patient safety when software is involved.   The standard requires all

During the campaign and thus far in the current administration, the President has prioritized the modernization of the Nation’s infrastructure and promised a $1 trillion investment plan to help fund that vision. There is rare bipartisan support in Congress for such a measure, as many agree that our roads, bridges, tunnels, railways, airports, energy, and water systems are in need of repair and replacement. Although no legislation has been proposed to fund such projects, last week the President signed an Executive Order that

This is a question that I often am asked when inventors have been working with us for an extended period of time. In the past, we could use an existing, executed declaration in the family for a new member, but not after changes to the oath and declaration went into effect on September 16, 2012.   The changes to the Oath and Declaration are provided for in 35 U.S.C. §§ 115 and 118. Under the changes, someone other than an inventor

In a recent decision, the U.S. Court of Appeals for the District of Columbia Circuit determined that the U.S. Environmental Protection Agency (U.S. EPA) wrongly invoked its general waiver authority and set the volumes for renewable fuel that must be blended into transportation fuel below the targets called for by Congress. The Renewable Fuel Standard Program The Renewable Fuel Standard (RFS), established by the Energy Policy Act of 2005, is a regulatory program that increases the amount of renewable fuels, such as