Author: JGL Law

On February 26, 2016, a coworker shot seventeen employees at a Kansas factory, three of whom were killed. While this was a high profile active shooting, unfortunately, it is not the only such workplace shooting.  As investigators piece together the motives for the murders, there is no question that there has been an alarming uptick of active shooting incidents in the U.S. over the past few years.

While the motivation and circumstances of the various incidents may vary, one often-cited factor in such events is mental illness. In this current environment of concerns about workplace shootings, employers might wonder if they can mitigate the likelihood of such an incident by screening employees and potential hires for mental disorders.

In this post, we will examine mental illness in the workplace and provide some helpful insights as to what employers can and cannot do to better serve their workforce.

Workplace Mental Illness Costs Employers

Before we take a closer look at screening employees for mental illness, we need to understand mental illness in more depth and how it affects the workplace.

First, the vast majority of individuals classified as mentally ill are not a threat. According to the National Alliance on Mental Illness (NAMI), 18.5 percent of adults in the U.S. – or 43.8 million people – experience mental illness in a given year. Furthermore, only 4.2 percent of the U.S. population – or approximately 10 million people – will experience a serious mental illness in a given year that substantially interferes with or limits one or more major life activities.

Even in situations where a crime is perpetrated by someone with mental illness, studies have shown that rarely is the mental illness linked to the criminal action. According to a 2014 study by the American Psychological Association, only 7.5 percent of crimes committed by perpetrators with a diagnosis of a serious mental illness were linked to their diagnosis. As the study’s lead researcher, Jillian Peterson, PhD, put it: “The vast majority of people with mental illness are not violent, not criminal and not dangerous.” 

While these facts support the assertion that mental illness is both prevalent and not typically linked to violent acts, employers may have good reason to conduct mental illness checks on their employees. According to the National Institute of Mental Health, providing mental health screenings for depression, and helping those employees, can have an impact on a company’s financials by increasing productivity and reducing costs. The same can be said about detection and early intervention programs related to alcoholism and drug use, which share a strong link with mental illness. In fact, according to NAMI, serious mental illness costs the U.S. economy more than $100 billion each year. 

In light of these facts, employers interested in conducting mental health screenings of employees should approach the topic from the standpoint that mental illness not only takes a toll on the afflicted but also on coworkers, customers and the company itself. The more assistance an employer can provide, the more that employer will be fostering a healthy and productive work environment for all. However, while it may appear at first blush that screenings and mental health assistance make common sense, the impact of disability discrimination laws must be considered.

Mental Health Screenings and the ADA

Companies that do wish to screen employees and potential hires for mental illness should deeply familiarize themselves with the Americans with Disabilities Act (ADA). This federal law affords the disabled, whether due to physical or mental impairment, protections that prevent and punish acts of discrimination in the workplace. Many states and localities have their own legislation that parallels the federal ADA. Make sure to also check your state laws as well to ensure compliance.

In regard to potential hires, the ADA prevents employers from asking questions about disability status during a pre-employment interview. Because serious mental illness is considered a protected disability under the ADA, employers should not conduct any type of screening for mental illness during the interview phase of the hiring process.

However, once a job offer is made, an employer can require a medical examination if it is a requirement for all entering employees. An employer can even request access to an incoming employee’s mental health records, but only if the employer makes the same request of all incoming employees. Failure to treat all incoming employees the same could lead to a claim of discrimination. Information learned from the disclosure of the health records may not be used to discriminate against an employee. The only time an employer can use such information to screen out an incoming employee is if the disability interferes with the requirements of the job and no reasonable accommodation can be made. A reasonable accommodation is a term used within the ADA to refer to a change in the work environment that allows someone with a disability to do his or her job. An example would be offering flexible work schedules to accommodate an ADA-protected employee’s doctor visits.   

For current employees, employers can request disability information only if it is job-related and consistent with business necessity. This means that there must be a reasonable basis that the employee is either unqualified for the job, requires a reasonable accommodation, or poses a direct threat to the health and safety of other employees.

To prove that an employee’s mental health causes a direct threat, employers must demonstrate that the employee poses a significant safety risk – one that cannot be eliminated or lessened by a reasonable accommodation. It also requires that an employer conduct an individualized assessment that relies on medical judgment. Mere suspicion is never enough to take an adverse action. 

So, both pre-employment screening and screening of existing employees without evidence that the employee presents a significant safety risk, could create significant liability for employers. What else can employers do in regard to mental health in the workplace?  

Evaluating Your Current Mental Health Programs

Besides conducting mental health screenings, there are a number of other tactics employers can take that prioritize an employee’s well-being while posing minimal legal exposure. For example, you can evaluate the healthcare services and wellness programs your company already has access to. Review your current mental health benefits offered by your insurance carrier and gauge if they are satisfactory in providing necessary assistance to your employees.

Next, ask your health insurance carrier questions about the behavioral health services offered through your company’s plan. What informational resources does your provider offer, such as online materials about mental illness or self-screening tools? If your employees do choose to seek behavioral health assistance, will they be connected to a provider trained in screening for mental illnesses, such as depression and anxiety? Upon receiving a diagnosis, do your employees have access to ongoing mental health services, including therapy as well as prescription medications? What resources are provided for employees struggling with alcohol or drug addiction?

In addition to evaluating your company’s health benefits, you might also want to look into implementing an employee assistance program (EAP). An EAP provides assistance to employees to help them cope with challenges that could affect their job performance and their well-being. EAPs can serve as an extra source of assistance for such issues as alcohol and drug abuse, work-related stress, and emotional distress.

Developing Additional Mental Health Programs

In addition to relying on health insurance and an EAP to provide services to employees who are suffering from mental illness, employers can do their part to develop their own programs to empower employees to seek the assistance they need.

One best practice is to develop an awareness program that educates employees on the types of mental illnesses and their symptoms. Such a program should be offered by a professional who has experience delivering mental illness awareness programs in workplace settings. In addition, any awareness program should provide employees with information about the company’s mental health resources and how to access them.

Employers should also consider enacting training programs for supervisors and managers that educate them on how to compliantly handle workplace issues that may involve an individual who is mentally ill. As mentioned earlier, mental illness can trigger the protections afforded under the ADA. Failure to comply with the ADA could result in a costly claim against your company.

GREENBELT, Md. – The law firm of Joseph, Greenwald & Laake filed a second civil lawsuit, this one a class action, on behalf of the victims of Deonte Carraway, a school employee-turned-volunteer at Judge Sylvania W. Woods Elementary School who was criminally charged with making pornographic videos of nine and 10-year-old students. The school’s principal, Michelle Williams, is also named as a defendant because she “took no action” despite concerns being raised to her about Carraway by parents and teachers.

“Principals, teachers, employees and school boards are entrusted with the safety of students when they are on school grounds,” said Timothy F. Maloney, the lead plaintiffs’ attorney for these lawsuits. “There are numerous reports that the principal knew of criminal actions against the students of her school and repeatedly did nothing to help them or report this terrible misconduct,” Maloney added.

Maloney reports that students were assaulted throughout the school, including in the auditorium and bathrooms. He also said that victims were also abused outside of the school grounds, including at the Glenarden City Hall.

“As we continue to investigate the devastating breadth of this case, we encourage the parents of these victims and witnesses to come forward,” Maloney said. “The State’s Attorney’s office has confirmed 17 victims, but there could be more.” Maloney added.

Parents and caretakers of victims who would like to learn more about the lawsuits should call 301-220-2200 or email sylvaniawoods@jgllaw.com.

For more than 40 years, Joseph, Greenwald & Laake, P.A. is one of the most trusted law firms serving Maryland, the District of Columbia and Virginia. Known for its commitment to community, confidence and character, Joseph, Greenwald & Laake is the leader in bringing suits against local governments and school systems. The firm represents a variety of clients, including victims, individuals, small businesses and multimillion-dollar corporations. From simple to complex legal needs, the firm is prepared to deliver strategic solutions with high standards. More information is available at http://www.sylvaniawoodsclaims.com.

More than 9,000 Victims Affected by Illegal Kickback Scheme

In U.S. District Court for the District of Maryland, Joseph, Greenwald & Laake, PA and Smith, Gildea & Schmidt, LLC filed a Motion to Approve the Settlement for the amount of $16.2 million on behalf of more than 9,000 consumers alleged to be victims of an illegal kickback scheme involving Genuine Title of Owings Mills, Maryland.

The lawsuit alleged that from 2009 through early 2014, Genuine Title provided kickbacks to Wells Fargo licensed mortgage brokers in exchange for referring borrowers to Genuine Title for title insurance and settlement services. Approximately 9,500 loans originated by the defendant, Wells Fargo, were involved in this settlement. Wells Fargo is responsible for the payment of settlement funds, which will be awarded within 90 days after finality of the settlement.

“Clients at the settlement table had no way of knowing about these kickbacks,” said Timothy Maloney, a principal with Joseph Greenwald & Laake, PA who represented the plaintiffs in this case along with Michael Paul Smith, from Smith, Gildea & Schmidt, LLC. “We are happy this lawsuit brought these practices to light and that we have been able to obtain a significant recovery for consumers of title services.”

Wells Fargo is the first lender to settle in the Genuine Title lawsuits. Joseph, Greenwald & Laake and Smith, Gildea & Schmidt currently have cases against nine banks/mortgage companies, Genuine Title and three of its sham marketing companies.

“It is gratifying to help those who were victimized unknowingly by Genuine Title. These types of back-room deals have no business in the real estate industry,” said Smith, from Smith, Gildea & Schmidt, LLC.

For more information on this case or other litigation matters, please contact Timothy Maloney at tmaloney@jgllaw.com or Veronica Nannis at vnannis@jgllaw.com.

David Bulitt and Rama Taib-Lopez recently addressed modern family law issues in an article they authored for the Daily Record’s Maryland Family Law Update. Entitled Commentary: Obergefell’s far-reaching impact on family law issues involving same-sex couples, the article discusses recent cases where same-sex couples face legal challenges resulting from divorce, including adoption, custody and visitation.

The law’s recognition of same-sex marriages following the U.S. Supreme Court’s ruling in June of 2015, has led to various scenarios that were previously not addressed in family law. Citing a same-sex divorce case, Conover v. Conover, where child visitation was in dispute, Bulitt and Taib-Lopez examine the legal implications of issues resulting from same-sex marriages and divorces. “In the era of marriage equality, Frosh’s opinion, followed by the evocations in Conover v. Conover, reflects the next wave in the area of law surrounding same-sex marriages founded on the principle of equal treatment in all aspects of marriage.”

As we move forward toward equal treatment under the law, the authors agree, “there is still much work to be done, adjusting the laws and adapting how the laws are applied, to accommodate all family types. But, as Nazarian so aptly stated, ‘We have to start somewhere.’”

For more information on family law matters, including divorce, child custody and visitation, contact David Bulitt at dbulitt@jgllaw.com or Rama Taib-Lopez at rtaiblopez@jgllaw.com.

Joseph, Greenwald & Laake, P.A. is pleased to announce that attorneys Matthew M. Bryant and Eleanor A. Hunt have been elevated to senior counsel at the firm.

“We are thrilled to recognize Matthew and Eleanor’s professional development and contributions to our firm,” said David Bulitt, assistant managing director of the firm.

Bryant has represented clients in matters involving employment disputes, professional licensing, civil rights violations and criminal defense. He also has an active appellate practice. Prior to joining the firm, Bryant clerked for the Honorable Kathryn Grill Graeff of the Maryland Court of Special Appeals and the Honorable Michele D. Jaklitsch of the Circuit Court for Anne Arundel County.

Bryant earned his law degree from the University of Maryland School of Law and holds an A.B., magna cum laude, from Kenyon College.

Hunt, a member of the firm’s Family Law practice, represents clients in divorces, adoptions, child custody and visitation disputes, domestic violence proceedings, and child and spousal support matters. Previously, she practiced as a transactional real estate attorney, working on residential real estate settlements, advising homeowners’ associations and condo associations, and drafting residential real estate contracts and leases.

Hunt holds a law degree from The George Washington University Law School and a B.A. from St. Mary’s College of Maryland.

JGL employment attorney, Brian Markovitz, spoke to Fox News yesterday regarding a recent religious and military discrimination case involving a DC police officer. As a practicing catholic and former marine, Officer Joe Tridico was subjected to daily harassment from his co-workers and superiors.

Representing Tridico, Markovitz describes the workplace harassment his client endured while serving in the Washington DC police’s Sixth District department. After praying and making the sign of the cross one day before lunch, he was subsequently mocked by his sergeant who shouted, “Look at him. That’s why he’s so weird. He believes in that weirdo Jesus sh%^.” Markovitz explains that the name calling “morphed itself into a nickname for him, which became ‘weirdo’ and they just continually called him that, and that was a direct reference to his faith and it was triggered by him praying.”

The workplace harassment persisted and “at one point, they hung up a picture of the Pope, John Paul II, right next to his desk and put the word ‘weirdo’ over it” said Markovitz.

The jury found that Tridico was retaliated against by the Sixth District department after reporting the harassment to his superiors. As Markovitz explains, “they essentially didn’t do anything to help him, and what they did eventually is they transferred him to another unit and left the individuals who were harassing him in place.”

Officer Tridico was awarded $20,000 and “was very pleased.  He’s glad he got some vindication,” said Markovitz. 

Since leaving the Sixth District department, Tridico has been transferred and promoted. He now serves in the Third District detective unit.

If you have filed for custody and/or divorce in Maryland, you’ve likely heard the term Best Interest Attorney. In fact, at your initial conference with the Court, the Magistrate conducting the conference may ask you if your case requires any “services.” That is court-speak for the appointment of a Custody Evaluator, Best Interest Attorney or Child Privilege Attorney. As such, you may want to familiarize yourself with the role of a Best Interest Attorney and his or her role in representing your child(ren).

Pursuant to Md. Ann. Code, Family Law Art. § 1–202, in actions concerning a minor child’s custody, visitation, or child support, “the court may: (1) appoint to represent the minor child counsel who may not represent any party to the action; and (2) impose against either or both parents counsel fees.” The appointed attorney may fill various roles, including reporting the children’s preferences to the court, investigating the reasons for the children’s preferences, and making an independent determination of their best interests. See Leary v. Leary, 91 Md. App. 26, 40, 627 A.2d 30 (1993).

One of the rationales for appointing an attorney for children is that they may become “pawns” in their parents’ fight to prevail on issues such as custody, visitation, or child support. See Lapides v. Lapides, 50 Md.App. 248, 250, 437 A.2d 251 (1981). The legislature has vested in trial judges the authority to appoint attorneys, or guardians ad litem, to serve the crucial function of representing children’s rights and interests in their parents’ custody disputes. See Md. Ann. Code, Family Law Art. § 1–202. In another decision, the Court of Appeals (the highest appellate court in Maryland) explained that this is rooted in ensuring the best interest of the child:

In resolving custody disputes, we are “governed by what is in the best interest of the particular child and most conducive to his welfare. This best interest standard is firmly entrenched in Maryland and is deemed to be of transcendent importance.” Ross v. Hoffman, 280 Md. 172, 174–75, 372 A.2d 582, 585 (1977) (footnote omitted). Keeping in mind “the best interest of the child,” we believe the appointment of an attorney to act as the guardian of the child in the instant matter is required. Furthermore, the appointment of a neutral third party would eliminate the very real possibility, as may exist in this case, of one of two warring parents exercising the power of veto for reasons unconnected to the polestar rule of “the best interests of the child.”

Nagle v. Hooks, 296 Md. 123, 128, 460 A.2d 49, 51 (1983) (footnote omitted).

“Thus, it has become the policy of this State, as enunciated in Nagle, that, when the parents are involved in a custody dispute and the child requires representation, the ‘best interest of the child’ may require appointment of a neutral attorney to act as the child’s guardian.” Auclair v. Auclair, 127 Md. App. 1, 16, 730 A.2d 1260, 1268 (1999) abrogated on other grounds by Fox v. Wills, 390 Md. 620, 890 A.2d 726 (2006).

In determining whether to appoint counsel, Maryland Rule 9-205.1(b) “Appointment of Child’s Counsel” states:

(b) Factors. In determining whether to appoint child’s counsel, the court should consider the nature of the potential evidence to be presented, other available methods of obtaining information, including social service investigations and evaluations by mental health professionals, and available resources for payment. Appointment may be most appropriate in cases involving the following factors, allegations, or concerns:

(1) request of one or both parties;

(2) high level of conflict;

(3) inappropriate adult influence or manipulation;

(4) past or current child abuse or neglect;

(5) past or current mental health problems of the child or party;

(6) special physical, educational, or mental health needs of the child that require investigation or advocacy;

(7) actual or threatened family violence;

(8) alcohol or other substance abuse;

(9) consideration of terminating or suspending parenting time or awarding custody or visitation to a non-parent;

(10) relocation that substantially reduces the child’s time with a parent, sibling, or both; or

(11) any other factor that the court considers relevant.
[…]

In Garg v. Garg,[1] the Court of Special Appeals discussed the importance of appointing counsel for the minor child:

The relevance of the child’s position and the fundamental importance of counsel’s role are underscored by the function of the child’s counsel in an acrimonious custody dispute. To that end, Md.Code, F.L. § 1–202 authorizes the circuit court to appoint counsel for a child to provide the court with an “independent analysis” of the child’s position. John O. v. Jane O., 90 Md.App. 406, 436, 601 A.2d 149 (1992). Indeed, “[t]he purpose of § 1–202 is to afford the court an opportunity to hear from someone who will speak on behalf of the child.” Id. at 435–36, 601 A.2d 149 (citation and internal quotation marks omitted). The statute thus recognizes that the interests and positions of the parents in these cases are not necessarily congruent with those of the children, and that the child is entitled to an advocate who will champion the child’s position. See Levitt v. Levitt, 79 Md.App. 394, 403–04, 556 A.2d 1162 (concluding that trial court should have appointed counsel for child in custody modification proceeding, although no party had apparently ever moved for appointment of counsel), cert. denied, 316 Md. 549, 560 A.2d 1118 (1989).

To be sure, [the child] was not a casual bystander in these proceedings. Yet, without the presence of counsel, his voice was not clearly heard. …

Given that [the child] will be profoundly affected by the outcome of the case, fundamental fairness suggests that he should have had a lawyer to articulate his interest and to assist on the critical and complex issues that were determinative of his future. Because [the child’s] interests were not represented below, and the outcome of the case will have a colossal impact on his life and that of his parents, we cannot overlook the failure to appoint counsel for him.

Garg v. Garg, 163 Md. App. 546, 577-78, 881 A.2d 1180, 1198 (2005) rev’d, 393 Md. 225, 900 A.2d 739 (2006) (bold emphasis added) (first alteration in original).

Many times, where there is a highly contested custody dispute, the best interests of the children require appointment of a neutral attorney to act as the child’s guardian and represent their rights and interests. See Auclair v. Auclair, 127 Md. App. 1, 16, 730 A.2d 1260 (1999). In Auclair, a guardian ad litem was appointed to represent the minor children in their parent’s contested divorce. While many parents may lobby to gain the Best Interest Attorney’s favor or his or her ultimate recommendation, the appointment of a best interest attorney is solely for the child’s benefit and support. In re Blaemire, 229 B.R. 665 (D. Md. 1999).

It is never ideal to have children testify. The Court’s appointment of a Best Interest Attorney can meet the objective of considering the children’s preferences without subjecting the child(ren) to the scrutiny of being in court or the later ramifications of believing they may have played a part in the dissolution of their family.

David Bulitt, Esquire is a principal in this firm’s Family Law Group and is often appointed by the Judges of the Circuit Court to represent children. David is an excellent resource to attorneys and colleagues who have further questions regarding Best Interest Attorneys and their role in representing children.

Timothy F. Maloney was recently quoted as an expert source in a Washington Post article regarding the Freddie Gray case. The issue relates to Baltimore police officer William G. Porter being called as a prosecution witness against fellow officers Caesar R. Goodson Jr. and Alicia D. White while awaiting a retrial on charges of involuntary manslaughter. Porter was offered limited immunity for his testimony, which his lawyers say cannot be enforced.

“Maryland lawyer Timothy Maloney said he does not see how Goodson’s trial could move forward with Porter as a witness until judges consider an appeal. Maloney was a member of a commission reviewing the state’s criminal code in the 1980s and raised questions about the constitutionality of the type of immunity prosecutors are offering to compel Porter’s testimony.”

“There are real questions with the enforceability of that promise,” Maloney said of the proposed immunity. “It is a very important question, and it is one that has to be litigated now or never . . . because once he testifies, he loses his right to remain silent.”

Maloney said “transactional immunity,” which is broader, would be more appropriate but would prevent prosecutors from retrying Porter.

Joseph, Greenwald & Laake, P.A. is pleased to announce that 12 firm attorneys have been named Maryland “Super Lawyers” or “Rising Stars” for 2016. In addition, firm partner Timothy F. Maloney also was selected to the 2016 Maryland Super Lawyers Top 100 list.

The firm’s other 2016 “Super Lawyers” are David Bulitt; Jeffrey N. Greenblatt; Andrew E. Greenwald, Jay P. Holland; Burt M. Kahn; Walter E. Laake, Jr.; Timothy P. O’Brien and Steven B. Vinick. Matthew M. Bryant, Anne Grover and Veronica Nannis and are the firm’s 2016 Super Lawyers “Rising Stars.”

Published by Thomson Reuters, Super Lawyers recognizes only the top 5 percent of all Maryland attorneys who embody excellence in the practice of law. Regarded as among the state’s top up-and-coming attorneys, the Super Lawyers Rising Stars must be 40 years old or younger, or have been in practice for 10 or fewer years. Super Lawyers are chosen through statewide surveys of attorneys, independent research and peer reviews by practice area.

Maloney was honored for his work in the General Litigation practice category. He has obtained millions of dollars in recoveries for his clients in a wide variety of complex matters, including civil rights, employment discrimination, whistleblower actions and high-stakes business litigation. He also has successfully taken on the government in numerous high-profile police misconduct and criminal defense cases. Maloney earned his law degree from the University of Baltimore School of Law and holds a B.A. from Georgetown University.

Bulitt, who serves as the firm’s assistant managing director, was recognized for his practice in the Family Law category. He helps clients reach favorable divorce settlements that protect their rights, their assets and their children, as well as other family law matters. He has successfully litigated divorce cases throughout Maryland and the District of Columbia and has served as a court-appointed attorney on behalf of children in custody disputes. Bulitt earned his law degree from the University of Baltimore School of Law and a B.A. from the University of Maryland.

Greenblatt was listed in the category of Family Law. For more than 40 years, he has represented clients in matters including prenuptial agreements, divorce, alimony, child custody, visitation and support, complex marital property division, and domestic violence. Greenblatt earned his law degree from the American University Washington College of Law and holds a B.S. from Syracuse University.

Greenwald was recognized for his work in the category of Personal Injury – Medical Malpractice: Plaintiff. A founding member of the firm, Greenwald has obtained millions of dollars in recoveries for his clients. He is widely recognized as a leading birth trauma and obstetrical malpractice attorney and has been called upon by lawyers in many other states to evaluate and litigate medical malpractice cases. Greenwald earned his law degree from Georgetown University Law Center and also holds a B.S. from the University of Wisconsin.

Chair of the firm’s Labor, Employment, and Qui Tam Whistleblower practice, Holland was named a “Super Lawyer” in the Employment & Labor Law category. He counsels clients in individual and class action cases involving gender and race discrimination and sexual harassment, violations of the wage and hour laws, and wrongful termination. He also has an active qui tam practice, representing whistleblowers in actions under the federal False Claims Act. Holland earned his law degree from the Catholic University of America Columbus School of Law and holds a B.A. from the University of Massachusetts.

Managing director of the firm, Kahn was recognized for his work in the Medical Malpractice category. Over the past four decades, he has distinguished himself as one of the go-to litigators in Maryland and Washington, DC, for cases where law and medicine intersect. He has obtained millions of dollars in compensation for injured clients, often without going to trial. Kahn earned his law degree from the American University Washington College of Law. He also has a B.A. from State University of New York.

A founding member of the firm, Laake was honored for his practice in the category of Personal Injury – Plaintiff. He has more than four decades of experience and has obtained millions of dollars in verdicts and settlements for injured clients. His work also has established many important legal principles that protect the rights of injured people, including the first case in Maryland – in the 1970s – that applied strict liability to a product liability case. Laake holds a law degree from the University of Maryland School of Law and a B.A. from the University of Maryland.

O’Brien was honored for his practice in the category of Estate Planning & Probate. He has more than two decades of experience advising clients on a wide range of estate and trust issues. He has helped families recover estate assets that have been misused, settle tax liabilities with the IRS, and protect assets for future generations. He also assists with the administration of estates, trusts and guardianships. O’Brien holds a law degree from the University of Baltimore School of Law and a B.S. from Frostburg State College.

Vinick was recognized for work in the category of Personal Injury – Plaintiff. He has more than 20 years of experience in representing clients in matters including medical malpractice, personal injury and criminal defense. He has obtained numerous significant verdicts on behalf of his clients and has earned a reputation as a skilled litigator and highly effective courtroom advocate. Vinick holds a law degree, cum laude, from the University of Baltimore School of Law and a B.A., magna cum laude, from the University of Maryland at College Park.

Bryant was recognized for his work in the General Litigation category. He has represented clients in matters involving employment disputes, professional licensing, civil rights violations and criminal defense. He also has an active appellate practice. Bryant earned his law degree from the University of Maryland School of Law and holds an A.B., magna cum laude, from Kenyon College.

Grover was recognized for her practice in the category of Family Law. She has represented clients throughout Maryland, as well as in interstate jurisdictional matters and appeals. Her work has involved separation and divorce, child custody disputes, contempt and enforcement proceedings, drafting and negotiating prenuptial agreements, and obtaining protective orders. Grover earned her law degree, cum laude, from the American University Washington College of Law. She also holds a B.A. from Catholic University of America.

Nannis was honored for her work in the Civil Litigation category. She has represented clients in civil matters involving civil rights, employment law and commercial disputes. She also is a leader in the firm’s qui tam practice, representing whistleblowers who report misuse of government health care funds under the federal False Claims Act. Nannis earned her law degree, cum laude, from the Catholic University of America Columbus School of Law. She also holds a M.A., summa cum laude, from the Catholic University of America and a B.A., magna cum laude, from George Washington University.

Joseph, Greenwald & Laake’s, Jay Holland recently discussed noncompete clauses with Family Practice News. When reviewing employment contract language, Holland stresses the importance of understanding your state’s employment laws, since noncompete rules vary widely from state to state. 

Physicians should consider their, “career and lifestyle goals carefully prior to entering into a noncompete. The first approach should always be an attempt to exclude the noncompete from your prospective agreement if you are joining a practice. If a noncompete is unavoidable, then strive to make it the least onerous possible.” 

In general, he recommends that “noncompete clauses should be no greater in scope than is necessary to protect the business or goodwill of the employer.”

For more information on employment contracts or noncompete clauses, contact Jay Holland at jholland@jgllaw.com or 240-553-1198.

The full article can be found at Family Practice News – Noncompete clauses: Be wary, negotiate early.

 

This week, a judge in Los Angeles, California vacated a $7.1 million verdict in favor of former Los Angeles Times sports columnist T.J. Simers, who claimed that the paper discriminated against him because of his age and disability. Simers alleged that the discrimination began after he suffered a stroke and other health problems in 2013, when he was 62 years old. Among other things, the newspaper cut his column from three times a week to two, and suspended him for alleged ethics violations. The newspaper ultimately took his column away altogether and reassigned him to sports reporting, which Simers considered a demotion. After the demotion, Simers resigned.

Or was he terminated? In a lawsuit against the Times, Simers argued that the newspaper’s actions against him were discriminatory and that his resignation was effectively a termination—a constructive discharge. After a six-week trial in October, a jury agreed with Simers, and awarded him $7.13 million dollars in damages.

Unfortunately for Simers, the judge disagreed. On Monday, the judge vacated a substantial part of the jury’s damages award, and yesterday he vacated the remainder of the award—stripping it down to nothing. According to news reports, the judge ruled that Simers had failed to prove he was constructively discharged, rather than having voluntarily resigned, explaining: “An employee who is demoted is not simply permitted to quit and sue because they do not like the new assignment . . . . While it may be a difficult experience to be criticized and demoted, an employee’s embarrassment and hurt feelings do not transform a resignation into a constructive discharge.”

Simers’ case raises one of the thorniest issues in employment law—the difference between a resignation and a constructive discharge. Generally, there are three ways that an employment relationship can end: (1) resignation, (2) termination, or (3) constructive discharge. A resignation is considered to be a voluntary act by the employee, for which the employer cannot be held liable. A termination is an adverse action by the employer, for which the employer can be held liable if it terminated the employee for an unlawful reason, such as the employee’s age, disability, race, or religious beliefs.

Constructive discharge involves elements of both a resignation and a termination, but is neither. Constructive discharge occurs when an employer discriminates against or harasses an employee so severely that the employee’s working conditions become intolerable. In such a case, if the employee resigns because of the severity of the workplace discrimination or harassment, the law views this resignation as actually being a termination. Even though the employer did not directly terminate the employee, courts have said that the resignation amounts to a “constructive” termination, or “constructive discharge.”

There are sound policy reasons for the constructive-discharge doctrine. If the doctrine did not exist, an employer could avoid liability for discrimination or unlawful harassment by making simply making an employee’s working conditions unbearable, driving the employee to resign.

As Mr. Simers discovered, a constructive discharge can be difficult to prove, however. Maryland courts have said that to succeed on such a claim, an employee must prove that the employer “deliberately caused or allowed the employee’s working conditions to become so intolerable that a reasonable person in the employee’s place would have felt compelled to resign.”[1] Courts have said that “[d]issatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to resign.”[2] As the judge in Simers’ case said, “an employee’s embarrassment and hurt feelings do not transform a resignation into a constructive discharge.”

If, however, the employer’s actions rise to the level that “a reasonable person in the employee’s position would have felt compelled to resign,” the resignation might constitute a constructive discharge.[3] As the Fourth Circuit Court of Appeals put it, “[t]he doctrine of constructive discharge protects an employee from a calculated effort to pressure him into resignation through the imposition of unreasonably harsh conditions, in excess of those faced by his co-workers.”[4]

An employee who is constructively discharged may sue for damages, including back pay and compensation for mental and emotional suffering. Any employee who believes that he or she is being discriminated against or unlawfully harassed faces a challenging legal situation and should immediately consult with an employment attorney.

In a recent Washington Post article, The legal maneuver that allows corporations to pretend that state laws don’t exist, Jay Holland addresses how companies are dodging Maryland Employment laws by including “choice-of-law” provisions in their employee contracts. These provisions essentially allow businesses to pick which state will govern their employment related matters. While this standardizes agreements for companies who operate nationally, it also allows them to protect their own interests.

As Jay Holland stated in the Washington Post article, “These laws — wage and hour laws, discrimination, consumer protection —  are intended to be broadly interpreted, broadly construed, to provide protection to individuals who did not necessarily have the power to individually negotiate their contracts. The courts seem to be losing sight of that, in my view.”

For more information on employee contracts or other employment related legal matters, contact Jay Holland at 240-553-1198 or jholland@jgllaw.com.