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The MSBA is pleased to announce that its July 2021 webinar, How COVID-19 and the New Administration Impact Employment Law Practice in Maryland, has been added to its on-demand CLE library.  Building on the 2021 Maryland Employment Law Deskbook, this four-hour presentation focuses on developments since publication, particularly since the enactment of COVID relief legislation and a change in presidential administrations. Seven experienced labor and employment law attorneys analyze current issues in wage and benefits laws, the FMLA and workplace rights of employees with disabilities, women, members of the LGBTQ community, whistleblowers and foreign workers. Potential pitfalls for employers, opportunities for employees, and practice tips for their attorneys are highlighted throughout the course, which qualifies for 4.0 hours of CLE credit for surrounding MCLE states.  

Devan M. Wang (Lebau & Neuworth, LLC) kicks off the program with a discussion of Biden administration adjustments to the federal wage and hour laws. Wang explains the roll-back of several Trump-era initiatives, including one that replaced a longstanding Department of Labor (DOL) test for distinguishing independent contractors from employees. He also discusses the repeal of an opinion letter that sought to change the rules for compensating tipped employees, redefining how much of their time could be spent doing non-tipped “side duties” at less than minimum wage, and with whom they could be forced to share their tips. Executive orders requiring federal contractors to pay an enhanced “living wage,” and corresponding developments under the state’s prevailing wage law, are also covered, along with several recent court decisions interpreting the Fair Labor Standards Act.  These and other revised rules that have or are about to be rescinded by the DOL are summarized in the materials and discussed in the presentations. 

Program Chair Richard Neuworth next addresses changes to Maryland’s mini-WARN Act, set to take effect October 1, 2021. Like its federal counterpart, this law mandates a series of notifications that must be made in anticipation of plant and office closings, many of which will be implicated by COVID-related business contractions. Neuworth describes how coverage is determined, what constitutes a closing or workforce reduction, the notice requirements, and important exceptions to these laws. He also covers changes to COBRA, FMLA, and ERISA under the CARES Act of 2020 and the American Rescue Plan of 2021, which amended notice requirements, gave terminated employees a second chance to sign up for COBRA benefits, and waived some ERISA appeal deadlines.

Neuworth returns to review state and federal “whistleblower” laws that protect and reward employees and independent contractors who report employer misdeeds. He notes that the potential for claims arising from COVID loan and grant programs, such as PPP and EIDL loans, is real as these programs required the filing of sworn applications and proceed disposition reports, many by financially distressed, first-time government program participants with limited internal controls. Employees can be expected to come forward with information about employer errors in the documentation to obtain whistleblower rewards, and may be protected if they do.

Neil R. Lebowitz (Lebowitz Law Firm) describes how COVID-induced disabilities may result in discrimination claims under the ADA, the state’s Fair Employment Practices Act, local ordinances, and the common law. After surveying the coverage of these laws and some subtle but significant differences between the state and federal regimes, Lebowitz discusses the likelihood of post-COVID claims for employer failures to accommodate mental (as opposed to physical) disabilities, how the 2020 work-from-home experience might alter the analysis of telework as an option when assessing an employers’ obligation to provide reasonable accommodations to disabled employees, and issues that are sure to arise as employers begin to mandate COVID vaccines for their employees.

Darrell VanDeusen (Kollman & Saucier, P.A.) provides a primer on the Family and Medical Leave Act (FMLA) before turning to recent case law developments and COVID-specific concerns. VanDeusen warned attorneys about the potential for claims based on the emergency FMLA (EFMLA) requirements of the 2020 Family First Coronavirus Response Act. While mandatory only through December 2020, the Act imposed new obligations on employers, many not previously covered by the FMLA, to provide paid and unpaid leave and reinstatement for certain employees who were unable to work due to the public health emergency.  The Act also mandated emergency paid sick leave (EPSL) for employees who had to quarantine, or to care for family members who contracted the virus. While the mandates have expired, employers may be subject to claims by employees who did not receive benefits to which they were entitled. Van Deusen also explains the American Recovery Plan’s use of tax credits to replace mandatory EFMLA and EPSL with a voluntary program for employers. 

State and federal prohibitions on sexual discrimination, harassment and pregancy discrimination, and the elements of various causes of action for alleged violations of these prohibitions, are discussed by Ellen Flynn (Smithey Law Group). Flynn offers background on Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, the Maryland Civil Rights Act, and several local anti-discrimination ordinances. She discusses several substantive and procedural issues that might influence an attorney’s selection of causes of action, and how she uses the Deskbook when evaluating and litigating discrimination cases. Special attention is given to the 2021 amendments to Maryland Civil Rights Act that changed the applicable statutes of limitations, and 2020 amendments to the Equal Pay Act of 1963 that ban certain questions about salary history when screening prospective employees, requires employers to provide certain wage information to job applicants, and prohibits employers from forbidding inter-employee discussion about their pay.   

Bernadette Hunton (Kollman & Saucier, P.A.) next discusses employment issues affecting gay, lesbian, bisexual, and transgender employees, particularly after the U.S. Supreme Court decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), confirmed that Title VII protections extend to claims based on sexual orientation and transgender status. Hunton explores the potential reach of Bostock, some local cases to watch, and the unresolved friction between Title VII employment discrimination and countervailing assertions of religious freedom. Hunton also addresses sick leave and disability issues of special concern to transgender employees and their employers under the FMLA and ADA, and concludes with a discussion and some workplace best practices for attorneys to review with their clients. 

The program ends with a discussion of issues regarding the employment of foreign nationals.  Norma Briscoe Hoffpauir (Hoffpauir Law, LLC) walks through the particulars of the H-1B, E-3,  L-1 and related programs, the obligations that each imposes on employers, potential causes of action for employees who allege violations of program requirements (in their own right, under whistleblower protection statutes, or as qui tam actions), and actions that employers can take to avoid liability or minimize their exposure. Hoffpauir also addresses several questions that can arise when an employer can no longer pay a foreign national because of the post-pandemic economic downturn, and provides a series of practice pointers to help ensure employer compliance with work visa programs.   

All presentations are accompanied by PowerPoint slides that provide citations to pertinent statutes, cases, executive orders and regulations, and are separately reproduced for use as  checklists, research tools or reference guides. This on-demand program can be ordered here.