Author: JGL Law

In an article published on June 5, 2024, by Washington Family Magazine, Erika Jacobsen White provides guidance about the Pregnant Workers Fairness Act (PWFA) for expecting and working mothers. The article details what the PWFA covers, including the process to determine reasonable accommodations for an employee and what conditions qualify for accommodations. White also explains what happens if an employee can’t perform essential job duties while pregnant as well as what happens if an employer refuses to make accommodations or retaliates.

Read the full article, “Pregnant? Your Employer Must Provide Accommodations,” in The Washington Family Magazine. This article also appeared in MetroKids Magazine, an affiliate of The Washington Family.

Mental Health Privilege & Maryland Divorce Blog Law Series – Part 9

FAQ 3 about Waiver of Mental Health Privilege & Maryland Divorce:
How does geography come into play?

This is a juicy question.  Why?  Because it’s not developed in our appellate case law.

Let’s start with what I mean by geography:  where the mental health provider is located.

This is easily an issue when:

• Either
  • A Maryland resident works in or lives near/on the border of DC, Northern VA, WVA, DE, or PATheir mental health provider is located outside of Maryland
  • The provider is not licensed in Maryland
• Or
  • An out of state litigant receives mental health services in their home state

Next, let’s look at what Maryland privilege statutes have to say:

• §9-109 applies to:
  • Psychologists licensed in Maryland
  • Psychiatrist who are licensed but does not say in Maryland
• §9-109.1 applies to:
  • Professional counselors certified, licensed or exempted from licensure under Maryland law
  • Psychiatric-mental health nursing specialists, who may or may not be licensed in Maryland
• §9-121 applies to:
  • Social workers licensed and certified in Maryland

So, where does that leave privilege?

I’m aware of no appellate case law or statute that tells us.  Which leaves logic (which may or may not apply in court).  Logic tells me that if the provider falls into the statutory categories with similar qualifications, then privilege should apply.

How to know?

• A written stipulation agreed to by all parties
• A motion in limine, which can be filed to affirm admissibility of evidence

Definitely a topic that requires thought & strategy, to avoid surprises at trial.

Mental Health Privilege & Maryland Divorce Blog Law Series – Part 8

FAQ 2 about Waiver of Mental Health Privilege & Maryland Divorce:
Is waiver forever?

No.  Davis v. Petito, 187 Md.App. 487 (2011), sheds some light:

• The court may not retroactively revoke privilege
• Privilege may be revoked from “now” and going forward
• Privilege waiver may end when the trial/case concludes, if not revoked before

Helped by In re BL³ (Md.App., No. 703, September Term 2017, Unreported (January 19, 2018);  predates Rule 1-104):

• A signed waiver for one purpose (such as releasing records to CPS) operates as a waiver in the litigation until revoked

Takeaways

• Revoke privilege at the latest when the trial is done / settlement is reached
• Put revocation in writing
• Share the revocation with current mental health providers, so they are aware

Mental Health Privilege & Maryland Divorce Blog Law Series – Part 7

FAQ 1 about Waiver of Mental Health Privilege & Maryland Divorce:
Can I choose who gets my privileged information?

Let’s start with terminology. 

Our appellate courts have used the terms “limited waiver” & “selective waiver” in ways that suggest these are different (but related). 

Here, by “limited waiver” I mean waiver of some, but not all, information or records held by the therapist (In re Matthew R, 113 Md.App. 701 (1997), Ali v. Hart, No. 0458, September 2022 Term, Unreported (December 8, 2022)). 

I use “selective waiver” to mean both 1) to one person but not another and 2) for one court case/purpose but not another (Hamilton v. Verdow, 287 Md. 544 (1980)).

Limited Waiver

Yes, limited waiver is possible, though not clearly developed in the law.  In re Matthew R suggests that a stipulation (so, agreement or acknowledgement) between parties is necessary & recognized waiver of specific, but not all, records. 

Ali v. Hart recognized a BIA’s limited waiver for “relevant information” (without mention of a stipulation).  Relevance is an overarching expectation in legal matters, so it’s not especially instructive.  The open question:  Will the court recognize a waiver limited to one particular topic?

Selective Waiver

Yes, selective waiver is possible, though even less developed in the law than limited waiver.  Per Hamilton v. Verdow, one can waive for one purpose/type of case, but not others.  One cannot, though, waive for one party, but not another similarly situated one in the same or related case.  Which I infer means one can waive for one case & one party, but not another party in an unrelated case.

The Takeaways

• Limited waiver is possible
• Because the law’s not well developed, waive cautiously, ideally with a written stipulation
• Limited waiver allows disclosure of some but not all privileged records and some but not all information
• Make sure the limitations are specific

I. Introduction

The U.S. Department of Treasury’s Financial Crimes Enforcement Network (FINCEN) finalized an updated reporting rule (the Reporting Rule) implementing Section 6403 of the Corporate Transparency Act (CTA) in September of 2022.[1] The Reporting Rule was created, in large part, to combat money laundering by foreign nationals who use shell and front companies to obfuscate their financial gains. The Reporting Rule requires all “reporting companies” to provide detailed information about their “beneficial owners” with the goal of heightened transparency in the United States’ financial system.

The reporting requirements took effect on January 1, 2024 and require qualifying entities to disclose detailed information about their “beneficial owners” and “Company applicants.” Entities that existed prior to January 1, 2024 must file their Beneficial Ownership Information Report (BOIR) by January 1, 2025. Entities created after January 1, 2024 must submit their BOIR within ninety (90) days of creation. However, the Reporting Rule includes broad exceptions, discussed below, which exempt certain companies from its reporting requirements. Failure to provide the required information can result in significant civil and criminal penalties.

II. The Reporting Rule

a. What is a Reporting Company?

A “reporting company” is defined as a corporation, limited liability company, or other similar entity created by filing a document with the Secretary of State of a respective State, or a similar office with a State or Indian Tribe.[2] Entities created in a foreign country and registered to do business in the United States by filing a document with a Secretary of State, or similar office under the laws of a State or Indian Tribe, are also considered “reporting companies” under the Reporting Rule and are subject to its mandate.[3]

b. What entities are exempt from the Reporting Rule?

The Reporting Rule identifies twenty-three (23) exemptions which except certain entities from its reporting requirements. The exemptions are:

1. Security reporting issuers
2. Governmental authorities
3. Banks
4. Credit unions
5. Depository institution holding companies
6. Money services businesses
7. Brokers or dealers in securities
8. Securities exchange or clearing agencies
9. Other Exchange Act registered entities
10. Investment companies or investment advisers
11. Venture capital fund advisers
12. Insurance companies
13. State-licensed insurance producers
14. Commodity Exchange Act registered entities
15. Accounting firms
16. Public utilities
17. Financial market utilities
18. Pooled investment vehicle
19. Tax-exempt entities
20. Entities assisting tax-exempt entities
21. Large operating companies
22. Subsidiaries of certain exempt entities
23. Inactive entities

c. What information do reporting companies have to provide?

Reporting companies must provide the entity’s full legal name, address, jurisdiction of formation, and taxpayer identification number, or foreign equivalent. Reporting companies are also required to disclose the identity of each of its “beneficial owners.” A “beneficial owner” is “any individual who, directly or indirectly, either exercises substantial control over such reporting company or owns or controls at least 25 percent of the ownership interests of” the reporting company.[4]

An individual exercises “substantial control” of a reporting company if they are a senior officer, have authority to appointment or remove a senior officer, directs or has substantial influence over important decisions regarding the business, its reorganization or dissolution, expenditures or investments, termination of business lines, compensation schemes, execution of contracts, or amendments of governing documents.[5] Individuals who own subsidiaries of a “reporting company” can qualify as a “beneficial owner” based on their ownership share and title, and the obligation to comply with the Reporting Rule is not diluted simply because they do not have a direct ownership in a “reporting company.”

An entity must report the full legal name, date of birth, address, and unique identifying number and image of a US passport, state driver’s license, or other eligible identification document for each of its “beneficial owners.” Entities created after January 1, 2024 are required to provide the same information for its “company applicants,” which are the individuals who filed the documents with the Secretary of State, or similar office, in order to create the reporting company.

Reporting companies must also provide their “FinCEN Identifier” if they have one. A FinCEN identifier is a unique number issued to an individual or reporting company upon request. An individual or reporting company is not required to obtain a FinCEN identifier, but if they do, they may only receive one, single FinCEN identifier. Reporting companies must update their BOIR if relevant information changes between reporting periods.

d. Are there penalties for noncompliance?

The Reporting Rule authorizes significant fines for reporting companies who willfully fail to adhere to the Reporting Rule’s requirements, or willfully attempt to provide false or fraudulent information. This includes civil penalties of up to $500 for each day that the violation continues.[6] The Reporting Rule also authorizes criminal penalties including imprisonment for up to two years and/or a fine of up to $10,000. [7]

III. Conclusion

The Reporting Rule requires a broad swath of entities to report the identity of their beneficial owners and authorizes significant fines for entities that fail to do so. While reporting companies that existed prior to January 1, 2024 have until January 1, 2025 to comply with the Reporting Rule, every company who qualifies should file their BOIR as soon as possible to avoid the imposition of criminal and civil penalties.

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[1] 30 C.F.R. Part 1010.380, 2022-21020.pdf (govinfo.gov).

[2] Id. at § 1010.380; 31 U.S.C. § 5336(a)(11).

[3] Supra, note 1 at § 1010.380(c).

[4] Supra, note 1 at § 1010.380(d).

[5] Id. § 1010.380(d)(1-7).

[6] Id. at § 1010.380(g).

[7] Id.

For most people familiar with the Fair Labor Standards Act, 29 U.S.C. 201 et seq., (FLSA), it is about protections for overtime pay, minimum wages, or prohibitions on child labor. Yet, no less important is the 2023 amendment to the FLSA, signed into law by President Biden, the Providing Urgent Maternal Protections for Nursing Mothers Act, simply known as the PUMP Act.

The PUMP Act requires for most employers (essentially all of them with 50 or more employees) that nursing employees be provided reasonable break times and a private place, that isn’t a bathroom, to express breast milk at work. This right extends until one year after the birth of the applicable child.

As this is a relatively new law, numerous questions are being decided by the courts. These questions include: What is a reasonable amount of time to express milk? How many times can an employee take a break to pump on any given workday? What is a sufficiently private area for the mother to pump?

While not legally required, as employers can make space available on an as-needed basis, having private, secluded space(s) for mothers is a best practice as it sets expectations and allows employers and employees certainty about where to pump.

Employees who believe they have not been afforded their appropriate rights under the PUMP Act can either contact the U.S. Department of Labor’s Wage and Hour Office (1-866-4USWAGE) to file a complaint or file a complaint in court.

Erika Jacobsen White has been selected by The Daily Record as one of Maryland’s Power Players for the 2024 Employment Law Power List.

This group is composed of power players who are leading key organizations, creating change, impacting the community and engaging others to succeed.

Three JGL lawyers will speak at the upcoming National Employment Lawyers” Association (NELA), which will be held June 26-29 in Philadelphia. More than 600 attorneys will be in attendance.

Jay Holland and Erika Jacobson White will speak about their advocacy on behalf of their client who is receiving NELAA’s 2024 Courageous Plaintiff Award.

Michal Shinner who is the Co-Chair of NELA’s Disability Law Practice Group, will participate in a panel about the state of the Americans with Disabilities Act as Amended. Here you can view the complete program agenda.

Mental Health Privilege & Maryland Divorce Blog Law Series – Part 6

This blog series discusses mental health privilege (the confidentiality a client has/clients have with their mental health provider) in contested family litigation (such as divorce and custody).

To recap:

A “privilege” is the legal right to protect a communication from disclosure & to keep information confidential.  Privileged information cannot be used in contested litigation unless the privilege is waived.

Privilege attaches when certain types of professionals provide mental health services.  Not everyone who is a “counselor” or “therapist” qualifies as a privileged provider.  The scope of privilege depends upon the type of provider, and privilege does not protect everything known by or in the records of a mental health provider (except social workers).

The client holds & can waive the privilege.  In family therapy, all participants must waive.  Group therapy (therapy among strangers) is not privileged.

Parents & Spouses

Parents & spouses waive their privilege when they:

• Raise mental health as a claim or defense
• Expressly waive their privilege (this may look like a signed waiver)
• Call their therapist as a witness & offer privileged information into evidence
• Name their therapist as an expert witness
• Intentionally disclose privileged information (Davis v. Petito, 197 Md.App. 487 (2011))

A waiver need not be in writing or a particular form (In re Matthew R, 113 Md.App. 701 (1997)).  Intention to waive must be expressed, whether in word, act, or omission (failure to assert) (Id.).  This means inadvertent disclosure, without intent to waive, is unlikely (though I have yet to find an appellate opinion clearly establishing this).

Privileged records and information are presumptively privileged.  The party asserting waiver has the burden/responsibility to prove that waiver occurred.

Children

A child’s privilege in their parents’ custody case is waived by a Child Privilege Attorney or other child counsel attorney with privilege determination rights.  That attorney may waive the privilege on the record or is allowed to file their privilege decision with the Court.  Intentional disclosure of privileged information by the attorney or with the attorney’s consent/knowledge is also waiver (Davis v. Petito, 197 Md.App. 487 (2011)).

Up next:  Winding down this series with random FAQs.

Mental Health Privilege & Maryland Divorce Blog Law Series – Part 5

This blog series discusses mental health privilege (the confidentiality a client has/clients have with their mental health provider) in contested family litigation (such as divorce and custody).

To recap:

A “privilege” is the legal right to protect a communication from disclosure & to keep information confidential.  Privileged information cannot be used in contested litigation unless the privilege is waived.

Privilege attaches when certain types of professionals provide mental health services.  Not everyone who is a “counselor” or “therapist” qualifies as a privileged provider.  The scope of privilege depends upon the type of provider, and privilege does not protect everything known by or in the records of a mental health provider (except social workers).

This blog focuses on the “who”:  Who holds the privilege and can waive it?

Individual Therapy

A patient, the patient’s authorized representative, or the patient’s guardian if the patient is incompetent, is the one who holds the privilege.  So the privilege-holder decides whether to refuse to disclose their own privileged information and whether a witness shall be prevented from disclosing privileged information.  Potential witnesses could be the therapist/mental health provider, as well as the patient’s spouse, co-parent, or family.

In Maryland, a minor child is considered incompetent to decide privilege waiver.  So, this falls to a guardian.  However, in a child custody case, their parents, who are a child’s natural guardians, also lack capacity because a parent is considered to have a conflict of interest (Nagle v. Hooks, 296 Md. 123 (1983)).  An attorney must be appointed to make this decision on their child client’s behalf.  That attorney is called a Child Privilege Attorney (Rule 9-205.1 and Maryland Guidelines for Practice of Court-Appointed Attorneys Representing Children in Cases Involving Child Custody or Child Access).

Nagle v. Hooks does not apply in every legal situation where parents face a privilege waiver decision for their child.  McCormack v. Board of Education, 158 Md.App. 292 (2004) is a must read about when a conflict of interest arises disqualifying parents from deciding privilege waiver on behalf of their child.

Group Therapy

Group therapy is not privileged (Reynolds v. State, 98 Md.App. 348 (1993)).  So with nothing to waive, there’s no privilege holder.  (Records may be confidential, which is outside the scope of this blog.  Health General §4-301, et seq.)

Family & Couples Therapy

Group therapy should be distinguished from family therapy (though I’ve yet to find Maryland law that does so explicitly) and couples therapy.  Group therapy is among strangers.  So, there’s not the same expectation of privacy as in individual, family, or couples’ therapy.

Family and couples therapy are among family members/people in relationship.  Family therapy is privileged (Board of Physicians v. Eist, 176 Md.App. 82 (2007)), and by extrapolation so is couple’s therapy.

While Board of Physicians v. Eist is not the most explicit of cases, a careful reading leads to the conclusion that all participants in family and/or couples therapy are required to waive privilege.  Meaning if one does not, then no privilege waiver.

The lack of clarity in the law about family and couples therapy plus practicality (we can’t unknow something), point to the importance of not using the same therapist for individual and family or couples therapy. 

The Takeaways

• The patient holds the privilege
• Minor children require a child privilege attorney (or other child counsel attorney with privilege waiver authority) to make a privilege waiver decision on their behalf in their parents’ contested custody case
• All patient participants must waive privilege in family or couples therapy
• Check if the mental health provider’s contract for services excludes him/her from participating in litigation (which may trump privilege waiver)

Next up: the “how”: How mental health privilege is waived.

Mental Health Privilege & Maryland Divorce Blog Law Series – Part 4

This blog series discusses mental health privilege (the confidentiality a client has/clients have with their mental health provider) in contested family litigation (such as divorce and custody).

To recap:

A “privilege” is the legal right to protect a communication from disclosure & to keep information confidential.  Privileged information cannot be used in contested litigation unless the privilege is waived.

Privilege attaches when certain types of professionals provide mental health services.  Not everyone who is a “counselor” or “therapist” qualifies as a privileged provider.  The scope of privilege depends upon the type of provider, and inadvertent disclosure of privileged information is a risk.

This blog explores “the what” – what is not protected by the privilege.

I’ll explore 3 categories of what isn’t privileged:

1. What the privilege statutes say
2. What the case law says
3. What experience says

Privilege Statutes

Each of the 3 privilege statutes creates exceptions to the privilege, with the relevant ones to family law litigation here:

• A judge finds that the patient, after being informed there will be no privilege, makes communications in the course of an examination ordered by the court and the issue at trial involves his mental or emotional disorder
• In a civil or criminal proceeding…the patient introduces his mental condition as an element of his claim or defense
• The patient expressly consents to waive the privilege…

These boil down to:

1. Court-ordered mental health/psychiatric evaluation or testing
2. Mental health as a claim or defense
3. Express waiver

Parental fitness is a claim and defense in every custody case.  Mental health is a facet of fitness.  Never fear – case law is here to clear that up (see below).

More interesting than the stated exceptions…what the statutes don’t say.

§9-109 (psychologist, psychiatrist) and §9-109.1 (psychiatric-mental health nursing specialist, professional counselor) are narrower privileges than §9-121 (social worker), protecting only:

• Communications relating to diagnosis or treatment of the patient or client; or
• Any information that by its nature would show the existence of a medical record of the diagnosis or treatment

So, not everything is privileged.  See below (case law & experience) for examples of unprotected information.

As discussed previously, the social worker privilege is so broad that, to my reading, everything is privileged.  And, as will be discussed, the law does not recognize partial waiver.  So, if one intends to maintain privilege with a social worker, one must be diligent regarding inadvertent disclosure.

Case Law

As discussed above, when interpreting and applying our privilege statutes, our appellate courts make law in result.

Laznovsky v. Laznovsky, 357 Md. 586 (2000), tells us that claims of parental fitness or unfitness in a custody case doesn’t, alone, waive privilege.  (I’d forgotten, or hadn’t appreciated before, that until 1977 Judges could compel mental health records in a custody case without privilege waiver.)  Otherwise put, participation in a custody case, with the inevitable accompanying allegations of parental fitness or unfitness, does not introduce mental condition as an element of a claim or defense that waives privilege.

Other non-privileged information:

• Prescriptions (Reynolds v. State, 98 Md.App. 348 (1993))
• Group therapy (Reynolds v. State, 98 Md.App. 348 (1993))
  • Group therapy should be distinguished from family therapy (though I’ve yet to find Maryland law that does so explicitly) and couples therapy
  • Group therapy is among strangers
  • Family and couple’s therapy are among family members/people in relationship
  • Family therapy is privileged (Board of Physicians v. Eist, 176 Md.App. 82 (2007)) and by extrapolation so is couples therapy
• Dates of service (Shady Grove v. Maryland, 128 Md.App. 163 (1999))
• Statements made to other patients during hospital stay (Reynolds v. State, 98 Md.App. 348 (1993))

Experience

In my experience, the following aren’t privileged either (except for social work privilege):

• Name of provider
• What prompted the patient to seek therapy
• Communications & behavior unrelated to diagnosis or treatment, especially outside of therapy sessions and with non-privileged staff (i.e. scheduling, arrival/departure, payment, appropriateness, etc.)
• Bills (minus diagnosis)
• EOBs/Explanation of benefits (minus diagnosis)
• If a child’s therapy, who dropped off, picked up, and how behaved/what communicated

The Takeaways

• Except for social workers and their expansive privilege, other mental health providers may have both privileged & non-privileged information
• So, they may be able to testify about limited information & produce limited records, even if privilege isn’t waived
• Privilege attaches when both the provider & the service performed are privileged

Up next:  The “who”:  Who holds the privilege and can waive it?

Mental Health Privilege & Maryland Divorce Blog Law Series – Part 3

This blog series discusses mental health privilege (the confidentiality a client has/clients have with their mental health provider) in contested family litigation (such as divorce and custody).

To recap:

A “privilege” is the legal right to protect a communication from disclosure & to keep information confidential.  Privileged information cannot be used in contested litigation unless the privilege is waived.

Privilege attaches when certain types of professionals provide mental health services.  Not everyone who is a “counselor” or “therapist” qualifies as a privileged provider.

This blog explores “the what” – what is protected by the privilege.

Maryland’s 3 mental health privilege statutes* protect the following from disclosure in family law litigation:

Patient-therapist privilege (§9-109*) and Client-psychiatric nursing specialist or professional counselor (§9-109.1):

• Communications relating to diagnosis or treatment of the patient or client; or
• Any information that by its nature would show the existence of a medical record of the diagnosis or treatment
  (language above is paraphrased and slightly different but the gist is the same)

Social worker-client (§9-121*):

• Communications made while the client was receiving counseling
• Any information that by its nature would show that such counseling occurred

The scope of privilege for licensed certified social workers is so much broader that the fact someone is in therapy and name of their LCSW is privileged.  The fact of therapy & name of provider easily creep up in family law litigation:  parents’ calendars, phone records, EOBs/explanation of benefits, credit card receipts, checks, electronic payment accounts.

Key takeaways:

• Not all privileges are created equal
• The type of provider determines scope of privilege
• Inadvertent disclosure is a pitfall with the LCSW privilege (§9-121*)

To keep this blog mercifully short, the next explores what’s not privileged (which gets juicy).

*Md. Code Ann., Cts. & Jud. Proc. (2019 Rep. Vol.)