MSLaw Blog

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