Author: JGL Law

The Maryland General Assembly met this past winter for its annual ninety day session and proposed legislation, heard testimony regarding proposed legislation, and enacted new law. 

This year there were 61 proposed bills regarding Family Law and Domestic Violence, 13 of which resulted in enacted legislation (for a full list of proposed Family Law and Domestic Violence bills, see here).

The enacted legislation ranges from merely ceremonial (for example, House Bill 346 which changes all references in the law to a circuit court and juvenile “master” to “magistrate”) to having a serious impact on individuals seeking a divorce (Senate Bill 472 allows individuals, in certain circumstances, to forgo the one year separation period now required for an absolute divorce if the parties mutually consent to the divorce).

MARYLAND’S INSTANT DIVORCE

Many individuals seeking a divorce in Maryland will be happy to learn of the newest ground for divorce, mutual consent, as a result of Senate Bill 472 (available here). However, there are important limitations on those who may obtain a divorce on this ground, which may rule out many prospective litigants.  In order to obtain a divorce based on mutual consent, the parties cannot have any minor children, the parties must have a written agreement resolving all issues relating to alimony and property (and neither party has filed any pleading to set aside the settlement agreement prior to the divorce hearing), and both parties must appear at the uncontested divorce hearing. 

As financial constraints often prevent the parties from physically separating, this ground for divorce, which is silent as to the general requirement of physical separation, will be very attractive to many individuals with limited funds. However, it is not clear exactly how many people will be able to take advantage of this new ground for divorce, as Senate Bill 472 is not clear on whether the parties must be separated at the time of the uncontested divorce hearing or if the parties can obtain a divorce while still residing under the same roof. 

MARYLAND REDUCES ITS RESIDENCY REQUIREMENT

House Bill 1185, available here, will also be of particular interest to individuals seeking a divorce that may have resided in the DMV area for many years, but are new residents to the State of Maryland. Residents of the DMV are so accustomed to crossing state lines on a regular basis that they may not realize that a move just up the street from Tenleytown in the District to Chevy Chase, Maryland will cause the clock to begin ticking in Maryland regarding the residency requirement for the filing of divorce. Previously, an individual had to reside in the State of Maryland for a year before they could file for divorce. House Bill 1185 allows an individual to file for divorce in Maryland after residing in the State for six months. 

LIMITED ATTORNEY’S APPEARANCE RESURRECTED

Maryland Rule 2-131(b), available here, permits a family law attorney to enter his or her appearance on a client’s behalf for a limited purpose. The new rule would allow litigants to hire an attorney to provide limited services, and therefore, at a seemingly limited cost. This may be most enticing to individuals who would normally not be able to afford to retain counsel to represent them in their divorce litigation. For example, in theory, a client could hire a divorce lawyer to argue a certain motion in a case in front of the court, to attend mediation, or, with leave of court, the attorney may act on the client’s behalf with regard to a specific issue or a specific portion of a trial or hearing. 

However, it is not clear how exactly this type of arrangement would work in practice, especially in the area of family law, where so many of the issues are intertwined (for example, the court’s determination of custody directly impacts the court’s decision regarding the use and possession of the marital home). An arrangement for a limited appearance also has the potential to mislead both the attorney or the client regarding the scope of the attorney’s role and may not be the bargain the client anticipated, if expectations are not clearly defined before the commencement of the representation. The rule requires that the client sign an Acknowledgment of Scope of Limited Representation and that this Acknowledgment be filed with the court along with the attorney’s notice of appearance. Although the rule includes an example Acknowledgment, it would behoove both the attorney and client to create a more detailed and comprehensive agreement to prevent confusion down the line. 

While only time will tell how these legislative changes will impact litigants filing for divorce in Maryland, it appears that the legislation is attempting to ease and expedite what is often a difficult and confusing process for many individuals.

Are you thinking about taking the plunge and renovating your home? Have you been looking around the house thinking, “Wow this floor sure is showing its age,” or “This kitchen used to be fabulous… in 1987,” or “Now that we have the money, why don’t we add that sunroom we always dreamed of”? Maybe you are a young contractor, ready to spread your wings and open your own company. If so, to successfully navigate your exciting new undertaking it is important to understand the nuances of the Maryland home improvement laws.

In the first part of this series on the legal implications of home improvement, I will provide an introduction to home improvement law and discuss the initial contract negotiating phase of a renovation project.

To protect homeowners, the Maryland General Assembly created the Maryland Home Improvement Commission (“MHIC”) and gave it the power to regulate home improvement.[1] What exactly is home improvement? Home improvement is defined as:  “the addition to or alteration, conversion, improvement, modernization, remodeling, repair, or replacement of a building or part of a building that is used or designed to be used as a residence or dwelling place or a structure adjacent to that building” and “an improvement to land adjacent to the building.”[2] Thus, “home improvement” may even encompasses certain “improvements” that may not be obvious, such as installing a permanent hot tub, window tinting, storm windows, and even certain types of cleaning and waterproofing. On the other hand, work done to commonly owned areas of condominium complexes or to buildings that contain more than four residences is not considered “home improvement.”[3]

The MHIC has outlined substantial requirements to protect the homeowner from unscrupulous contractors. The MHIC requires that all contractors be licensed[4] and that all home improvement contracts contain certain language. For example, all contracts must contain the contractor’s MHIC license number[5] and the MHIC phone number.[6] One of the MHIC’s newest requirements compels all home improvement contracts presented after July 31, 2013 to state:

(1) Formal mediation of disputes between homeowners and contractors is available through the Maryland Home Improvement Commission;

(2) The Maryland Home Improvement Commission administers the Guaranty Fund, which may compensate homeowners for certain actual losses caused by acts or omissions of licensed contractors; and

(3) A homeowner may request that a contractor purchase a performance bond for additional protection against losses not covered by the Guaranty Fund.[7]

If a home improvement contract contains an arbitration clause, the clause must comply with specific state regulations.[8] 

When negotiating the terms of your project, be sure to remember that a contractor may not accept more than 1/3 of the contract price as a deposit or down payment and may not require or accept any payment until the contract is signed.[9] Depending on the size of the job, the contract may also lay out what is called a draw schedule. A draw schedule provides certain benchmarks or targets for the contractor. As the contractor achieves these benchmarks, he or she is entitled to additional payment. From the contractor’s perspective, draw schedules are a vital mechanism to provide structured funding for jobs that may otherwise be too costly for the average contractor. From the homeowner’s perspective, the draws keep a contractor moving forward by providing immediate incentive to get to the next phase. Negotiate these targets to efficiently get the job done.

Finally, discuss with the contractor whether “time is of the essence.” While a contract must give a general estimate of time for completion[10] there is generally no penalty if the job drags on. A “Time is of The Essence Clause” provides a firm date for completion. It legally signals that if the job is not substantially complete by a certain date, the homeowner will be damaged in some way. Such a contract term often pairs with a “liquidated damages” provision. For home improvement contracts, “liquidated damages” is a predetermined monetary value of the harm caused by the delay.

Home improvement is an exciting and stressful undertaking. It invariably requires significant investments of time, money, and energy. When presented with a home improvement contract take your time, review it in its entirety and even visit the MHIC website. If you have any questions or need advice contact your attorney.

On June 12, 2015, Jay Holland will participate in a panel discussion at the Maryland State Bar Association’s 2015 Annual Meeting in Ocean City, Maryland. The education session entitled “Blowing the Whistle: Handling Retaliation Cases Under Federal and State Law” explores the various anti-retaliation and whistleblower laws that apply in the workplace. Mr. Holland joins distinguished panelists, Brian Frosh, Maryland’s Attorney General and Ariana Wright Arnold, Shareholder at Jackson Lewis P.C. 

For more information on the event or to register online, visit the MSBA Annual Meeting website.

Oftentimes, the last thing on the mind of someone about to embark on a divorce is how to best posture his/herself in the event of contentious litigation. However, considering this position may be essential to the ultimate outcome of the divorce. Indeed, by commencing divorce litigation, the parties are essentially asking the Court to enter their homes, and decide, among other things, who is the better parent, who has the greater need for economic support, and who owned what property and when.

What makes preparing for divorce particularly unique is that the Court cannot glean these things merely by the claims of the parties, but must do so by reviewing the tangible evidence presented. For this reason, during the divorce process, the parties will engage in discovery whereby each party is obligated to produce documents and answer questions at the request of the other. These documents often include banking and credit card statements, emails, text messages, employment records, and other information. In the event that these documents are not in the possession of the producing party, the requesting party can subpoena them directly from the source (e.g. banks, employers, cellular carrier, etc.).

Each document will tell the Court a story about you and your spouse—whether you’re a big spender, whether your spouse is a hands-on parent, and a host of other personal details. Today’s world of text messaging, tweets, emails and status updates now offers the court a wealth of information about you. While this can be extremely useful in helping you create and dictate your own narrative, these new mediums can just as easily be used against you.

By taking a few simple and easy steps, you can begin to form your own narrative and control, to an extent, how the court may view you in relation to your case. Whether you’ve been considering a divorce for a significant period of time or have been blindsided by some marriage-ending event, the following are ways this digital age can work for you instead of against you:

1. Curb Your Texts and Emails: Even in the most amicable divorce, feelings will likely be running high on both sides. Unfortunately, getting a divorce often brings out the worst in even the most even-tempered people. That bitterness and resentment oftentimes finds its way into day-to-day communication. In today’s world, this means emails and text messages.

Written communications between you and your spouse, or you and your children (if they are old enough to email and text), are generally admissible evidence and can make its way into the court’s record. This is particularly true in matters involving custody. As such, this is not the forum to rant to your spouse about their shortcomings or to admit to all of yours. Written communication should only be for necessary matters. They should also be short and pertinent to the subject of the message.

Communication between you and your spouse should not run contrary to your ultimate goals in the divorce as well. For example, if you are requesting joint custody of your child(ren), but there are emails consistently showing that you and your spouse cannot get along or agree or that you continuously send bitter text messages to him/her, your position will be significantly undermined.

2. Change All of Your Passwords: In relationships, we share many things with our spouses, including personal information such as passwords. After all, what is a password when we share our homes, children and lives? However, as with many other things on this list, this information can and likely will be used against you. A spouse with access to your personal accounts can be more dangerous than any identity-thieving hacker. They can read emails to and from your family law attorney and potential witnesses. He or she can monitor movement in your personal accounts and credit card purchases. In the most extreme cases, they can even falsify text messages and emails, seemingly sent from your phone, email account, or on social media.

Upon realizing and accepting that divorce is inevitable, begin that separation by once again becoming a private person. Your soon-to-be-ex spouse should not have access to your computer, phone, tablet, email, social media accounts and banking/credit card accounts. As an extra precaution you may consider opening a new email account, solely for the purposes of communicating with counsel or your spouse during divorce proceedings.

3. Temporarily Disable Social Media Accounts: We all currently live in a culture where we are constantly available to everyone all of the time. We can share our opinions, major life moments, and day-to-day annoyances almost instantly. This constant need to share every detail of our lives can spell disaster in a divorce. In the same way that a disparaging email to your spouse can make you look uncooperative, a rant on social media, where your audience can be hundreds of mutual friends and acquaintances, will only serve to make you look like the dreaded “bad guy” in the relationship.

While most people can resist ranting about their ex on social media, they are certainly not out of the woods. Social media is also an excellent way for others to track your ongoing actions, even if you remain completely inactive on the site. For example, a spouse seeking pendente lite (temporary) alimony who posts, or gets included in, pictures on Instagram or Facebook of their latest Hawaiian vacation, “checks-in” at high-end restaurants or is pictured wearing a new $300 accessory will undoubtedly hurt their claim of “need”. Even if these were gifts from third parties or a single splurge in an otherwise frugal period, you do not want to draw any negative attention on your spending habits.

As such, it is strongly urged that all social media accounts be temporarily disabled pending the conclusion of the litigation.

4. Do NOT Delete Any Accounts: Although temporarily disabling your accounts is a great way to mitigate your exposure on social media, your accounts are still evidentiary in nature. The destruction of evidence, called spoliation, either in anticipation of, or during litigation may leave you vulnerable to the Court making a negative inference against you, even if what was deleted was relatively minor.

In the event that a social media account cannot be temporarily disabled, the account should not be deleted, but merely allowed to remain inactive. Moreover, for some, it is important that they remain active on at least some social media websites for one reason or another. For example, many use professional websites, like LinkedIn, as a source of networking and job hunting. However, be mindful that any information there that is contrary to representations made to the Court may be used against you. Therefore, you must insure that your profile is an accurate reflection of exactly how you want to be perceived by the Court professionally.

5. Stop All Recreational Drug Use: With the recent decriminalization of marijuana in some jurisdictions, and the outright legality of it in others, recreational use of marijuana, and the societal shift toward how certain drug use is viewed in general, has just recently entered the realm of legal ambiguity. It may be the case that you and/or your spouse used marijuana, either individually or together, without it ever being an issue. However, once litigation has begun, particularly if visitation and/or custody are at issue, your actions and behaviors will be put under the scrutiny of the court. A divorce proceeding is simply not the appropriate arena in which to test whether the local judiciary will be as tolerant as some legislatures.

While some may argue that, at least when it comes to the use of marijuana, we are entering a more liberal era, drug usage, whether illegal, decriminalized or legal should stop immediately upon a filing for custody of visitation. Though your spouse may have never raised the issue before, it is still fair game and will likely only hurt your case if you continue to use it.

In the face of all of the turmoil and stress that comes along with a divorce, you must remember to stop and think before hitting the “send” button. Remember this important rule: never send, post or submit anything you wouldn’t want the presiding judge to later read. 

Eve Shuman, Esquire has practiced family law exclusively since graduating from Cornell Law School in 2010, and is experienced in a wide variety of matters, including prenuptial and postnuptial agreements, divorce, property distribution, child custody, parental access, spousal and child support, and interstate custody disputes.  Ms. Shuman is an attorney in JGL’s Family Practice Group in the Rockville Office.  She may be reached by email at eshuman@jgllaw.com.  

Christopher FitzPatrick, an associate in Joseph Greenwald & Laake’s Medical Malpractice Group, was elected the new President of the James C. Cawood, Jr. American Inns of Court in Annapolis. He will serve as President from July 2016 until July 2017.

An association of lawyers, judges and other legal professionals, the American Inns of Court was established to build and foster professional relationships. Members of the association span a wide spectrum of the legal profession. From law students to Supreme Court justices, members discuss fundamental and current legal issues, share experience and advice, and mentor those who are new to the profession.

As President, Mr. FitzPatrick will continue to further the traditions of the James C. Cawood, Jr. American Inns of Court as they pursue professional development, ethical inquiry and collegial relations.

Greenbelt, Md – Joseph, Greenwald & Laake is pleased to announce that Rama Taib-Lopez has joined the firm as an associate in the firm’s Family Law Practice Group. 

“We are very pleased to welcome Rama to the firm,” said Burt M. Kahn, managing director of Joseph, Greenwald & Laake. “She brings a fantastic combination of compassion and experience to better serve our family law clients.”

Prior to joining Joseph, Greenwald & Laake, Taib-Lopez served as a clerk for a Domestic Relations Magistrate at the Circuit Court for Baltimore City and practiced family law, immigration law, and criminal defense in Annapolis, Maryland.

She earned her bachelor’s and law degrees from the University of Maryland. 

If you own a business, there’s a good chance you’ve been faced with the independent contractor vs. employee dilemma. The decision isn’t always an easy one to make and since an incorrect designation can have significant negative consequences, it’s best not to decide in haste or purely on the basis of economics. Here are some things to consider the next time the issue comes across your desk:  

First, while economics often argue in favor of an independent contractor designation, you do not get to “choose” whether your hire is an independent contractor or an employee. They are one or the other based on the job they were hired to do and the method in which they are required or permitted to do it.

Second, as noted above, the ramifications of improperly designating an employee as an independent contractor can be significant and far reaching. An improper designation can result in the business being held liable for unpaid Federal and state withholding taxes, overtime and minimum wage obligations, all of which could generate penalties and interest. Moreover, an improper designation can affect eligibility for employment benefits and may lead to a disqualification of certain benefit plans.

Finally, there is no single, definitive standard for determining whether someone is an employee or an independent contractor. The analysis can change depending on which governmental agency is involved. For example, the Internal Revenue service has factors they consider determinative which are not necessarily the same factors that will be considered by the state agencies in charge of wage and hour or unemployment matters. While the various factors tend to hover around the same basic central themes, they are not identical. So what’s the conscientious business owner who just wants to get the decision right supposed to do? In Maryland anyway, they might want to consider starting with the test that is used by several state agencies, often referred to as the “ABC Test.” Unfortunately, in this case ABC is not an acronym, so the letters don’t actually help in remembering what’s involved with an independent contractor test. Still, with only three factors to consider, the ABC Test is relatively straightforward, making it a good place to begin. Under the ABC test, you are hiring an employee unless all three of the following are true:

A. The individual performs the job free of control and direction;

B. The individual is engaged in an independent business of the same nature; and

C. The work is outside of the usual course of business of the employer or performed outside of any place of business of the employer.

Since the ABC test takes a conservative approach, if your circumstances satisfy the test, your work is likely done and you can feel confident that your new hire is an independent contractor. If you don’t satisfy all three of the requirements of the ABC Test, it does not necessarily mean you have an employee- employer relationship; but if you don’t meet the standards of the ABC Test, you should not even consider designating a new hire as an independent contractor without analyzing the situation and the applicable law in more detail.

For more information on legal questions effecting your business, contact JGL’s business lawyer, Jerry Miller.

 

Got an innovative idea? Starting a new business?  Decided to incorporate? Now what?!

One of the first decisions a budding entrepreneur encounters when starting a new business is where to incorporate their new venture.  In my corporate and business law practice, I tend to point clients in one of two directions, either their home state (the state where the business operates), or Delaware.  For this article we will assume the home state of the entrepreneur is the State of Maryland.

I frequently hear from clients that their “friend” told them they MUST incorporate their new business in Delaware.  Many entrepreneurs will state they were told Delaware has lower incorporation costs, tax benefits, and a sophisticated body of corporate law. Some of these statements are true, while others depend on your specific situation.

Let’s weed through the noise and analyze the factors for the basis of incorporating a business in Maryland or Delaware.

First, let’s examine the costs.

Costs to Incorporate[1]

State of Maryland

• Initial Fee: $100.00 filing fee plus $20.00 fee for organization/capitalization
• Annual: $300.00 Personal Property Tax

State of Delaware

• Initial Fee: $89.00
• Annual: Minimum of $175.00 Delaware Franchise Tax

Additional Fees if incorporating in Delaware but operating a business in Maryland

State of Delaware

• Annual: $50.00-$219.00 depending on company (Note that Delaware requires an in-state registered agent for filings and to receive service of process)

State of Maryland

• Initial Fee: $100.00 Foreign Business Qualification fee
• Annual: $100.00 Name Registration fee
               $300.00 Personal Property Tax

Examining the fees alone, initially, it may be slightly less expensive to incorporate in Delaware rather than Maryland; however, I encourage my clients to look at the long term picture. The fees a Maryland business that is incorporated in Delaware would pay at the outset are higher considering they must still register with the Maryland State Department of Assessments and Taxation as a “Foreign Business,” receive approval to operate in Maryland and pay a qualification fee of $100.00.   Additionally, on an annual basis, a Maryland business that is incorporated in Delaware must pay Delaware a franchise tax of at least $175.00 as well as Resident Agent fees that range from $50.00 to $219.00. However we are not done yet; in addition to the Delaware fees, annual fees charged by the State of Maryland include a name registration fee of $100.00 and a personal property tax of $300.00.  Many readers may respond with the question, “but don’t I make up for these additional incurred costs as a Delaware corporation by not having to pay Maryland corporate income taxes?” This is a common misconception. Yes, Delaware has no corporate income tax but a business operating in Maryland while incorporated in Delaware will pay and continue to pay Maryland corporate income taxes every year. 

Body of corporate law  

The best argument for incorporating in Delaware is the same reason that the majority of large U.S. corporations, publicly traded or privately held, are incorporated in the State of Delaware: they have a special court system, known as the Chancery Court, with judges that oversee a well-developed body of business law.  Many large corporations prefer this system because they are frequently involved in complex litigation, which in Delaware is decided by Chancery Court judges rather than juries.  Additionally, Delaware’s vast corporate legal precedents (created by previous litigation) are attractive for investors because it has a clear standard for what fiduciary duties a Board of Directors owes to the corporation. However, just because Delaware is a business-friendly state doesn’t necessarily make it right for you.

Thoughts to consider

One of the main considerations for where to incorporate depends on the financing of the new venture.  If an entrepreneur plans on raising money in the near future, you can bet a venture capital company is going to dictate where you incorporate your business. The old adage, “Whoever has the gold makes the rules,” will generally apply with deals involving venture capital companies.  However, if you plan to fund your new business by applying for financing from a bank, by applying for an SBA loan, or by simply bootstrapping as your grow, then incorporating in Maryland may be a better option as you will be able to avoid the additional costs associated with Delaware corporations.

When starting your own business, always think about the logistics of operating a business. For the average business, starting a company in Delaware can be much more burdensome than the benefit is worth.  I would rather have an entrepreneur focus on the business instead of worrying about the additional hassle (and costs!) associated with incorporating in Delaware.  

* Please note that each business situation is different. You should always seek legal advice before making a decision about where to incorporate when starting a business.

Greenbelt, Md – Joseph, Greenwald & Laake is pleased to announce that Matthew E. Kreiser has joined the firm as an associate in the firm’s Labor & Employment Law Practice Group.

“We are very pleased to welcome Matthew to the firm,” said Burt M. Kahn, managing director of Joseph, Greenwald & Laake. “He is an asset to the firm’s Employment Law practice, especially because of his knowledge of the False Claims Act and experience with public policy.”

Before his employment at JGL, Kreiser held a number of positions in public policy development, analysis and advocacy. He has advocated for the interests of hospitals and community-based healthcare providers at both the state and federal levels. He also interned with the United States Sentencing Commission in its office of Education and Sentencing Practice, where he helped analyze issues concerning courts’ use of the Federal Sentencing Guidelines, composing in-depth policy analysis of the problems associated with court-ordered restitution against individuals convicted of possession of child pornography under the Mandatory Victims Restitution Act of 1996.

Kreiser earned his law degree from the University of Miami School of Law and his bachelor’s degree from the Ohio State University.

As a labor and employment attorney, I am often asked by potential clients if they have a viable claim against their employer for being subjected to a “hostile working environment.” And why would they not? Many people feel they are subjected to difficult working conditions, and the word “hostile” is a loaded term, perceived to be attention grabbing and capable of capturing interest. Although it sounds like an all-encompassing claim, the law has very particular requirements to satisfactorily allege that one was, indeed, subjected to an unlawful, hostile working environment.

“Hostile work environment” is not specifically enumerated as a possible claim under Title VII[1] or Maryland’s Fair Employment Practices Act[2], (“FEPA”). Rather, a “hostile working environment” is a legal term of art that both the United States Supreme Court[3] and the Maryland Court of Appeals[4] have held is actionable under Title VII. Title VII makes it unlawful for an employer to discriminate against any individual with respect to their compensation, terms, conditions, or privileges of employment because of an individual’s immutable characteristic (e.g., sex, gender, race, color, etc.), which are enumerated in the statute.[5] “Since an employee’s work environment is a term or condition of employment, Title VII creates a hostile working environment cause of action.[6]”  However, Title VII does not protect all forms of behavior that may create an unpleasant place for one to work.

Ultimately, the issue boils down to whether they were subjected to conduct and behavior in the workplace that Title VII is designed to protect. This is where the “jerk boss” or “rude coworkers” rule comes in to play.[7] “Title VII was not intended to eliminate every instance of vulgarity, rudeness, or insensitivity”[8] in the workplace, so not all instances of objectionable behavior are actionable under Title VII.  For example, in the Fourth Circuit:

• Rude or callous behavior is not necessarily actionable under Title VII;[9]
• “Condescending” or “belittling behavior” (e.g., tone of voice, facial expressions, mannerisms, etc.) and personality conflicts, standing alone, are not generally actionable under Title VII; and
• Comments concerning one’s personal hygiene, appearance, or the qualities of one’s children premised upon inaccurate assumptions about race (a protected characteristic under Title VII)—although crude and ignorant—are not covered under Title VII.[10]

In order to have an actionable claim for an unlawful hostile working environment under Title VII and Maryland’s FEPA statute, one must demonstrate that the workplace harassment, based on the protected characteristic, was (1) unwelcomed; (2) based on the protected characteristic; (3) subjectively and objectively severe or pervasive enough to alter the conditions of employment and create an abusive atmosphere; and (4) imputable to the employer.[11] Generally speaking, prongs one and two are relatively easy to establish, and the courts will also often assume that he or she subjectively perceived their work environment to be abusive.[12] Courts, therefore, often focus on whether the abusive and harassing conduct was objectively and sufficiently severe or pervasive and that the aggrieved conduct was imputable to the employer.

In considering a hostile work environment claim, the Fourth Circuit evaluates all of the circumstances surrounding the conduct, considering: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.[13] The perspective the court takes is that of a “reasonable person” in the potential client’s position.[14] However, the harassment need not be both severe and pervasive; thus, the more severe the conduct, the less pervasive it needs to be.[15] In fact, at least one court in the Fourth Circuit has found that a single incident of harassment that is sufficiently severe can give rise to employer liability.[16]  Additionally, courts in the Fourth Circuit have held that harassing behavior by an employee’s direct supervisor, who has significant authority over the employee’s day-to-day duties and possesses the ability to influence her career, to be objectively more severe than the same behavior by a fellow employee.[17]  

Lastly, a potential employee’s complained of harassment must be imputable to his or her employer to establish liability.[18] An employer is liable for unlawful harassment by the employee’s supervisor or co-worker only “if [the employer] knew or should have known about the harassment and failed to take effective action to stop it.”[19] Once an employer has notice, then it must respond with corrective action designed to end the complained of workplace harassment.[20]

While it may oftentimes be extremely stressful to work in a difficult environment, as can be seen, there is sometimes a divide between common notions of a hostile work environment and whether the courts will deem it to give rise to a cause of action. Because every case is different, careful analysis is necessary to evaluate the merits of whether a case falls under the “jerk boss” rule or is an actionable claim under Title VII.

Joseph, Greenwald & Laake principal, Brian Markovitz, was quoted in Law360 discussing the Sixth Circuit judges unanimous decision on April 20 not to re-hear en banc a three-judge panel’s decision to revive a federal False Claims Act case accusing a Tennessee hospital of overbilling Medicare and Medicaid for unnecessary medial procedures. Joseph, Greenwald & Laake is representing whistleblower Robert Whipple. The article quotes Markovitz as stating, “the ruling made clear ‘the entire Sixth Circuit felt that the decision made by the panel was correct and that this case should go forward on the merits.’”

 

As parents, we are concerned about the safety, health and welfare of our children.  We will do almost anything in order to protect them and provide for their best interests.  We seek the best neighborhoods with the lowest crime rates in order to ensure that our children will obtain the best education possible in a safe environment.  We also select the best doctors to care for our children in times of illness, take financial measures to ensure future success and wealth for our children by maintaining bank accounts on their behalf, or perhaps establishing college savings plans and obtaining a life insurance policy for their benefit in our absence.  However, what is often left out of the equation is the importance of obtaining a will in order to designate who will take care of our children in the future if we are no longer around. 

A last will and testament does not simply serve as a vehicle for the disposal of one’s estate, but it is also the instrument for designating a legal guardian for minor children.  The natural parents of a child are automatically deemed to be the guardians of their minor children.   Therefore, if the mother of the child passes away, typically the father of the child will be granted legal guardianship of the minor child, and vice versa.  However, if the other natural parent is not alive, is simply unwilling to serve, or is proven to be unfit to act as guardian of the minor child, then the court will appoint someone else to serve as the minor child’s guardian. 

If you designate a guardian for your minor children in your will, then the court will give deference to your designation. However, it is important to note your designation is not foolproof.  When you designate a guardian in your legal will you are stating your preference as to who you  would like to care for your child upon your (and presumably your spouse’s) passing, but your preferential designation is ultimately subject to the court’s approval. 

Why doesn’t the court always comply with one’s guardian designation? Practically speaking, people, as well as their circumstances, are always subject to change.   Consider the circumstance where a young couple prepares a will when their child is a newborn and they designate their trusty college roommate as the guardian.   However, a decade later, the trusty college roommate is now a raging alcoholic, leading a life that is less than desirable for raising a child, or is even imprisoned.  If this is the case, and this information is brought to light in the guardianship proceeding, then the Court will make a determination as to the fitness of the designated guardian in the will and does not have to comply with your designation.

Even though the designation is not foolproof, it is well worth the effort to have an estate planning attorney draft your will so that you have peace of mind knowing that you have done everything in your power to identify who you believe to be a proper guardian to care for your children– as opposed to leaving this major decision up to the courts, who are the least familiar with you, your children and your values.