Author: JGL Law

Preparation for Custody Hearings (Part 1)

A Maryland family court making child custody decisions makes two mutually exclusive determinations:  1) legal custody (a determination of which parent may make decisions regarding the health, education, religion and welfare of the child); and 2) physical custody (who the child will reside with).

The trial judge has the authority to determine custody, regardless of whether “joint custody has existed in the past, or award custody to one of the parents, or to a third person, depending upon what is in the best interests of the child.” Taylor v. Taylor, 306 Md. 290, 301, 508 A.2d 964 (1986).

The Court of Appeals in Taylor, 306 Md. at 296, 508 A.2d 964, stated:

Legal custody carries with it the right and obligation to make long-range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child’s life and welfare.

In Taylor, the Court went on to state that “joint legal custody means that both parents have an equal voice in making those decisions, and neither parent’s rights are superior to the other.” In determining the propriety of joint custody, the Court opined that “joint custody is not appropriate in every case. Indeed, it has been suggested that it is appropriate only in a small minority of cases.” Taylor, 306 Md. at 302–03, 508 A.2d 964.  The most important factor in determining whether an award of joint legal custody is appropriate is the capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare. According to the Taylor Court:

[r]arely, if ever, should joint legal custody be awarded in the absence of a record of mature conduct on the part of the parents evidencing an ability to effectively communicate with each other concerning the best interest of the child, and then only when it is possible to make a finding of a strong potential for such conduct in the future.

Taylor, 306 Md. at 304, 508 A.2d 964.

While most matters reviewed and adjudicated in a divorce proceeding are reviewed as a matter of equity,[1] child custody is based on the “best interests” of the minor child and not a consideration of the parent’s rights.  See Md. Ann. Code, Family Law Article § 1-201(a); Montgomery County Dep’t of Social Services v. Sanders, 38 Md. App. 406, 381 A.2d 1154 (1978); Wagner v. Wagner, 109 Md. App. 1, 37, 41, 674 A.2d 1 (1996).  In other words, while a parent may say, “I have a right to see my child” (an equity argument), that is not consistent with child custody law in Maryland. 

One judge has stated that “[t]he bottom line in any custody dispute is: what is in the ‘best interests’ of the children?; and a judge agonizes more about reaching the right result in a contested custody issue than about any other type of decision he renders. The agony is complicated even more when both parties are dedicated and devoted… .” Leary v. Leary, 97 Md. App. 26, 37, 627 A.2d 30, 35 (1993) (internal citation omitted).  In any divorce or custody action where the custody of a child or children is being disputed, the court has a myriad of factors that it must consider in determining child custody. 

The following is a list of factors that the Court may take into consideration in determining the best interest of minor children to determine custody and access. (There is some repetition in cases where a factor is relevant to different areas of inquiry.)  Of course, each family is different and each custody case is different as well.  An experienced family law attorney will discuss these factors set forth in Maryland case law [2] with you and any application the factors may have upon your case:

1.  Fitness of Parents

Involvement of children in divorce process
Denigration of other parent
Parental alienation of child from other parent
Exposure of children to adulterous behavior
Time requirements of employment
Travel requirements of employment
Inability to hold a job
Frequent job changes
Lack of stability
Frequent changes of address
Irresponsibility – financial and otherwise
Excessive use of alcohol
Use of illegal drugs (CDS)
Abuse of prescription drugs
Violence toward spouse or children
Quick temper
Profanity
Poor housekeeping
Age, infirmity, and disability
History of mental or emotional illness
Suicide threats or attempts
General level of maturity
Educational achievements 
        
2.  Role to Date of Each Parent in Nurturing and Raising The Child

Who shops for food, cooks, cleans, does laundry?
Who makes and takes child to dental and medical appointments?
Who transports the child to school, activities, etc.?
Who attends school and extra-curricular activities?
Who puts child to bed?
Who reads to the child?
Who assists with homework?
Who takes the child shopping for clothing?
Who disciplines the child?
Who participates in religious activities with the child?
Who takes care of the home?

3.  The Relationship of the Child to Each Parent

Is the child fearful of the parent?
Does the child confide in the parent?
Does the child respect the parent?
Does the parent respect the child?
What is the level and extent of communication between parent and child?
How does the child react to discipline from the parent?
    
4.  The Child’s Preference

How old is the child?
Has the child been pressured into a “preference”?
To whom and under what circumstances has the preference been expressed?

5.  The Home, School and Community Environment

Will the child be involved in school activities where he or she will be living?
Little League, ballet, soccer?
Are there kids their age in the community?
Will school or parents be able to meet special needs?
Is the child involved in clubs, e.g. Boy Scouts?
Is the location of the home suitable for children?
What is the location of school child will attend?
Does the school provide special programs?
Are there concerns for safety of the child in the neighborhood or at school?

6.  The Availability of Support Systems of Each Parent

Friends
Religious groups
New spouse and step-children
Grandparents
Other family members
Mental health professionals
Neighbors

7.  The Lifestyle of Each Parent as a Role Model

Occupation and work habits (such as balance between good worker and workaholic)
Involvement in the community
Involvement in church
Abuse or excessive use of alcohol, drugs
Responsibility – who made decisions in marriage?
Social life (hours kept)
Exposure of child to new love interests
Personal cleanliness
Cleanliness of home
        
8.  Accessibility to Extended Family in Each Living Situation

Where are grandparents, aunts, uncles, cousins geographically?
Historical involvement of extended family members

9.  Attitude of Each Parent Towards Visitation

Which parent is more likely to allow child continued contact with the other parent?
Has a party interfered with visitation with the child in the past?
Is there a history of visitation disputes?
Have there been any issues with telephonic visitation or access?

10.  The Age and Sex of Each Child

Boy/Girl
Age
Level of maturity
Relative ages of all children

11.  Stability and Mental Health of Each Parent

Responsibility
Suicide threats or attempts
Depression
Indications of mental or emotional illness
Alcohol or drug abuse

12.  Stability and Mental Health of Each Child

Any special needs of child
Willingness to recognize special needs of child
How can each parent meet special needs

13.  Preservation of Status-Quo

What are the present living arrangement?
How long has this arrangement been in place?
How was the living arrangement created, e.g., agreement between the parties, Court Order, desertion by one party, etc.

14.  Each Parent’s Plans for Day-to-Day Child Care    

Child care arrangements (babysitters)
Daily living patterns (work hours, work-related travel)

15.  Each Parents Goals and Values

Career goals/rehabilitation
Educational goals
Personal goals
Family goals
Priorities 
Church attendance
Involvement in civic activities, charities, etc. 

16.  Willingness & Cooperation to Include Other
        
Is the parent involved in the lives of the children?
Does the parent assist in making decisions (before separation and after)?
Does the parent keep the other informed on activities, failures, achievements?

17.  Potential for Maintaining Natural Family Relations

With grandparents
With brothers & sisters (split custody)
How far apart will the parents be living from each other?

18.  Willingness to Provide Support & Maintenance of Child

Incomes of the parties
Assets of the parties
Which parent can meet special financial needs?
Has other parent been providing support?
Has litigation been necessary to obtain support?
Arrearages incurred due to withholding or non-payment of support?

19.  Prior Voluntary Abandonment or Surrender

Did a parent leave the home without the children?
How often does the parent visit/contact children?

20.  Desire for Cooperative Parenting Agreement Between Parties

Ability, willingness of parents to negotiate outside of court
Ability to be reasonable/fair
Antagonistic attitude 
        
21.  Character & Reputation of Parties/Witnesses

Grandparents, friends, relatives
Teachers, school personnel
Coaches
Neighbors
Parents of child’s friends
Babysitters
Clergymen
    
22.  Involvement of Each Parent in the Child’s Life

23.  Which Parent Is Best Able to Meet Non- Financial Special Needs Of Children

24. Professional Opinions re: Custody

Psychologists previously involved or post-separation
Psychiatrists
Social Workers
To whom is the child most “bonded” psychologically?
Is parent emotionally dependent on the child?
Is child emotionally dependent on the parent?

The Maryland State Legislature is currently considering a bill that would significantly broaden the state’s limited False Claims Act to allow prosecution of cases of non-medical fraud. The bill, if passed, would provide an important and necessary tool to curb fraud committed by private contractors and others who try to cheat the government no matter the type of contract defrauded, according to a leading practitioner representing whistleblowers under the federal False Claims Act.

“There is no reasonable justification for not expanding this law to cover all types of fraud in the state,” said Brian J. Markovitz who will testify on the matter before the state’s House and Senate Judiciary Committees on Feb. 25. “In particular, the new law would allow the government to recover money from non-medical contractors who wrongly bill the government for work that was not performed or was obtained through fraudulent means.”

The state’s current False Claims Act includes only Medicaid and other healthcare related claims. The proposed Maryland False Claims Act (Senate Bill 374) would bring the law in Maryland in line with 20 other states that have similar False Claims laws with the larger scope. The bill also is Attorney General Brian E. Frosh’s top priority for the 2015 legislative session.

The new law would allow anyone with knowledge of fraudulent billing submissions to file lawsuits on behalf of the state. If the case is successful, whistleblowers would receive a portion of funds recovered through the litigation they initiate.  

“This new law could help recoup millions of dollars for the state each year,” Markovitz added. “But, more importantly, it helps bring justice to an often-abused state contracts system and rewards individuals for having the courage to call out the cheaters.”

“Man has long been diversely fascinated with animals.” [1]  Mike Tyson counted pet tigers among his pets, Kristen Stewart and her mother raise wolf-dog hybrids, and Tippi Hedren kept a 400-pound mature lion in her home – allowing it to play by the pool, lounge in the living room, raid the fridge, and even permitted her daughter (Melanie Griffith) to take it to bed. They are hardly alone.[2] Just two weeks ago reports surfaced that former Baltimore Ravens defensive lineman Terrence Cody kept an alligator in his Baltimore County home. In fact, owning exotic pets is nothing new. Almost two centuries ago John Quincy Adams, the sixth President of the United States, lodged an alligator in a bathtub in the White House’s East Room.

While the reasons for keeping wild animals as pets vary, Gary West, an assistant professor of zoological medicine at Kansas State opined that “[p]eople like exotic animals for the ‘wow’ factor.”[3] Mike Tyson has, perhaps, expressed this sentiment best: “I am loaded. This guy on the phone says, ‘You can be driving your Ferrari with your cub in the front seat.’ I thought, ‘Yeah, when I come out, I’m gonna be a cool dude. I’m gonna have a tiger in my car. I’m gonna be a baller.’”[4]

One National Geographic article has expressed the belief that “more exotic animals live in American homes than are cared for in American zoos.”[5] So do exotic pets make good pets? The ASPCA puts it bluntly: “Exotic animals are not good pets.”[6] The South Carolina Department of Parks, Recreation & Tourism says: “Alligators make terrible pets.”[7] 

Tragic reports involve such pets as a black bear in Allentown, Pennsylvania, a python in Oxford, Florida, a mountain lion in Odessa, Texas, and a deer in Waskom, Texas, just to list a few.[8] In Zanesville, Ohio, a couple kept a menagerie of exotic animals, including wolves, monkeys, Bengal tigers, leopards, grizzly bears, and lions. However, one of the owners apparently released the animals from the cages. Some animals were shot with tranquilizer darts and sent to the zoo, but sheriff’s deputies were forced to hunt and kill at least 49 animals. [9]

Given the hazards, almost all states have exotic pet laws regulating the private possession of wild animals.[10] For example, former Baltimore Ravens defensive lineman Terrence Cody was recently charged in the Circuit Court for Baltimore County with unlawful possession of an alligator.[11] In November 2012, Anne Arundel County police discovered a 3-foot long alligator inside a home while executing a search warrant.[12]

In Maryland, the General Assembly found possession of such animals to potentially introduce diseases and dangers to human safety.[13] With certain exceptions, the State bans the possession of specific animals, as well as certain large families of animals, including: foxes, skunks, raccoons, bears, caimans, alligators, crocodiles, members of the cat family other than the domestic cat (and hybrids over 30 pounds), members of the dog family other than the domestic dog (including hybrids), nonhuman primates, and certain family groups of poisonous snakes.[14]  Local pet ownership laws and regulations may be even more broad or restrictive, often requiring certain permits.[15]

If you want to be a baller and own an exotic pet, be sure to consult federal, state, and local law first – not to mention “common sense and ethics.”[16] Failure to do so can not only lead to civil or criminal charges, the results can be disastrous.  

For more than forty years, Joseph Greenwald & Laake has been dedicated to providing high quality legal services to ensure their clients’ long-term success. In recognition of their excellence, the firm has been named to Washington DC’s 2015 U.S. News – Best Lawyers® “Best Law Firms.” The firm’s Family Law and Personal Injury groups received a Tier 1 regional ranking, the Medical Malpractice area was ranked in Tier 2, and the Trusts & Estates practice was ranked in Tier 3.

Each year, U.S. News – Best Lawyers® conducts a thorough evaluation of law firms based on client and lawyer evaluations, peer review from prominent attorneys in their respective field and review of additional information firms provide in the submission process. Ranking eligibility requires a firm to have at least one lawyer included in Best Lawyers for that particular practice area and metropolitan district. JGL had five attorneys named Best Lawyers, qualifying them for the Best Law Firms ranking.

Two attorneys elected as principals

Greenbelt, Md. –  Joseph, Greenwald & Laake, P.A. is pleased to announce that it has promoted Joseph M. Creed and Anne E. Grover from senior counsel to principals. In addition, Darin L. Rumer has been elevated from associate to senior counsel and Allison McFadden has been elevated from staff attorney to associate.

“We are proud to have the opportunity to reward these outstanding attorneys with promotions,” said Burt M. Kahn, managing director. “We are particularly pleased to elect and welcome Joe and Anne as principals. Their dedication to their clients and firm is greatly appreciated, and we look forward to a great future with them.”

Creed is a member of the firm’s Civil Litigation and Labor & Employment groups. He advises and represents individuals and businesses in various civil litigation matters. He is an experienced litigator and appellate attorney, having tried cases and argued appeals in state and federal courts. His practice includes business litigation, professional licensing matters and all aspects of employment law.

Grover, a member of the firm’s Family Law practice, represents clients in a wide range of family law matters, including separation and divorce, child custody disputes, contempt and enforcement proceedings, drafting and negotiating prenuptial agreements, and obtaining protective orders. She has represented clients throughout Maryland, as well as in interstate jurisdictional matters and appeals. Grover is skilled as both a negotiator and a litigator, and brings a sophisticated understanding of financial and tax issues to her analysis of her clients’ needs.

Also a member of the firm’s Family Law practice, Rumer advises clients in family law matters, including child custody and divorce litigation, separation agreements, child support and alimony issues, property distribution issues, domestic violence, and other areas.

McFadden, also a member of the firm’s Family Law practice, represents clients in a wide variety of domestic relations matters, including custody disputes and divorces. She enjoys working closely with her clients to assist them through each phase of their cases, from discovery and depositions through preparation for mediation and trial.

This week in Cunningham v. Feinberg, No. 27 SEPT.TERM 2014, 2015 WL 328991 (Md. Jan. 27, 2015), the Maryland’s Court of Appeals ruled that the Maryland Wage Payment and Collection Law (MWPCL) is a strong public policy for protecting wage earners’ rights. The Court of Appeals relied heavily on the 2011 House Bill 298 that was passed into law, clarifying the MWPCL with an anti-waiver provision that provides that any “agreement to work for less than the wage required under this subtitle is void.” Its inclusion of triple damages and attorneys’ fees demonstrates the serious purpose of the law.

JGL’s employment lawyer, Brian Markovitz, played an influential role in advocating for House Bill 298 and obtaining its passage into law in 2011. Commenting on HB 298 at the time, Markovitz explained, “The intent here is to expressly preclude unscrupulous employers from using employment contracts to circumvent the remedies available in the MWPCL subtitle by applying the laws of other states that provide less protection for their workers and/or by having workers waive these rights.”

HB 298 Made[RETC1]  Important Clarification of Maryland Law

HB 298 provided a simple clarification, yet an important one: It clarified that the Wage Payment and Collection Law reflects a strong public policy of the state that was recognized by the high court. The complement to Maryland’s Wage and Hour Law, the Wage Payment and Collection Law, ensures that employees in the state of Maryland are fully paid all wages required (either as minimum wage, overtime wage or by contract) in a regular and timely fashion. Together, these two statutes provide bedrock workplace protections for all employees, ensuring that they are fully paid the required basic minimum wage and overtime wages when due. Further, where an employer wrongfully withholds a wage not as a result of a bona fide dispute, an employee may recover damages of up to three times the wage that was required or due to be paid – an important incentive to ensuring compliance. However, while the Wage and Hour Law contains language prohibiting agreements to violate its provisions, its counterpart, the Wage Payment and Collection Law, did not, prior to 2011. HB 298 simply corrected this oversight and provides the identical language to the complementary wage statute.

For more information on Maryland’s Labor & Employment laws, contact Brian Markovitz at bmarkovitz@jgllaw.com.

In a recent Baltimore Sun article, Timothy Maloney discusses why his client who won an $11.5M verdict against Prince George’s County will only receive $400,000. A 1980s Maryland law caps the amount of money a person can receive when suing a local government. The case is currently before Maryland’s highest court to determine whether the lower court properly applied the state law. 

The Washington Post also covered the story and examines how the Maryland civil rights case could have a major affect on how victims are compensated in cases involving police brutality and other civil violations. 

The family of a man wrongly shot and killed by a Prince George’s County police officer in 2008 is challenging a state law that limits the amount of damages for which the county can be held liable. The issue in Espina v. Jackson is whether a Maryland law passed in the 1980s can cap how much local governments owe plaintiffs who have successfully sued municipalities.

In finding for the family, the jury in the 2011 case found the county liable for wrongful death and for violating Espina’s due process rights under Article 24 of the Maryland Constitution’s Declaration of Rights. 

Earlier this month, Joseph Greenwald & Laake Principal and attorney Timothy F. Maloney argued that a trial judge erred in cutting the jury’s $11.5 million damages award for the widow and son of Manuel de Jesus Espina to only about $400,000. The trial judge said the cap was mandated under the state’s Local Government Tort Claims Act. “The $200,000 cap has not been addressed in 27 years,” said Maloney. “This is a police killing that could have been avoided. Eleven million is not a runaway verdict in this case.” 

An intermediate court later upheld the decision. Now, the state’s high court has taken up the matter and is expected to rule by August 2015. No payouts of the award have been made while the case is under appeal.

Joseph Greenwald & Laake’s Qui Tam lawyer, Brian Markovitz will be speaking at the Virginia State Building & Construction Trades Council Winter Meeting – 2015. The event will take place at the Richmond Marriott on Saturday, January 24, 2015.

Mr. Markovitz will be discussing the False Claims Act and its application to prevailing wage laws such as the Davis-Bacon Act and the Service Contract Act that govern the wages and fringe benefits a contractor or subcontractor are required to pay workers on certain public works projects. The federal False Claims Act allows any “person,” including unions or individuals, to initiate a civil lawsuit to report to the Justice Department any contractor who fraudulently obtained government money. Working together, the Prevailing Wage Act and the False Claims Act deliver a one-two punch to bad-guy contractors caught skimming from workers’ wages.

For more information on the presentation or if you have questions concerning prevailing wages or the False Claims Act, Brian can be reached at bmarkovitz@jgllaw.com or at 240-553-1207.

To secure to each labourer the whole product of his labour, or as nearly as possible, is a most worthy object of any good government. 
Abraham Lincoln, 1847

President Lincoln rightly believed that workers should get paid what they earn.  But as many of us know, stealing money from workers on government contracts by underpaying them below the prevailing wage[1] is often the industry standard. 

When unions and their members learn of prevailing wage theft, in response, one of two well-intentioned but futile actions usually are taken.  They start a very public protest campaign – either in the newspapers or by physically protesting at the jobsite/headquarters of the offending company.  Or, they file a complaint with the Department of Labor.  Most times, neither action works.  Trying to shame a shameless employer who didn’t pay people properly in the first place does not work.  And, in this government-shutdown, low-morale, underfunded era, the Department of Labor’s resources are so strapped that it often can’t force the bad actors in to compliance. 

Unions, their members, and others need to shift their focus away from repeating failed methods to another one of Lincoln’s great ideas: the False Claims Act, aka Lincoln’s Law.  During the Civil War, Lincoln grew tired of soldiers being harmed by contractors who stole money from the public or provided substandard goods. 

He came up with the idea that he would incentivize people to report crooks by providing those who reported fraud with a finder’s fee from any fraudulently taken monies the government recovered.  And voilà, the False Claims Act was born. 

The modern-version of the False Claims Act allows any “person,” including unions or individuals, to initiate a civil lawsuit to report to the Justice Department any contractor who fraudulently obtained government money.  So, when a contractor lies to obtain public funds by stating to government officials that it paid workers proper prevailing wages, the False Claims Act kicks in.  The False Claims Act also packs a powerful punch – triple damages plus penalties of $5,500.00 to $11,000.00 for each false submission to the government.  In this respect, an unscrupulous contractor can pay much more than what it bilked from its workers, a good deterrent from underpaying workers on the next public job and lying to the government again. 

Just like Lincoln’s version, the modern statute provides the person who reports the fraud with a finder’s fee usually of at least 15% but up to 25% of the money recovered.  So, if the government recovers $1M, the whistleblower gets at least $150k but up to $250k of the money. 

Notably, the percentage of the unionized workforce currently is at or near all-time lows.  Using the False Claims Act can be one way to help turn around these ever declining numbers by providing unions with a vehicle to obtain additional funding by collecting the finder’s fee.  And, as many of us know, unions and their members know who the crooks are – they’ve been trying to organize them or get them to pay people properly for years. 

Lincoln once said, “I don’t think much of a man who is not wiser than he was yesterday.”  So, stop the insanity of doing the same ole thing on prevailing wage and try something new.  File a civil complaint to report the fraud to the Justice Department, really sock it to bad guy contractors by hitting them in their pocketbooks, and get a monetary reward to boot.  All unions and their members have to do is be an outside-the-box-thinker like Lincoln, and of course, get a good lawyer who thinks outside the box too! 

The views expressed herein are the personal views of the author and do not necessarily represent the views of Joseph, Greenwald, & Laake P.A.

David Bulitt was recently featured in Maryland’s The Daily Record, Family Law magazine discussing divorce and the special-needs child. As a family law attorney, Bulitt not only represents parents in child custody cases, but also acts as a best interest attorney for children in divorce cases. 

Discussing the added complexity of divorce cases involving special-needs children, Bulitt explains, “Regardless of their age, these kids have very, very difficult times adjusting to change, and very difficult times moving back and forth. If you don’t really understand or take the time to listen to your clients or do a little research, you’re going to be doing this kid a great disservice.” 

In the article, Bulitt highlights the importance of parents coming to an agreement with a solid parenting plan that provides adequate structure for the special-needs child. Before a parenting plan can be determined, parents need to agree on the basic elements of the child’s everyday life. Bulitt also addresses the lawyer’s role in educating a judge about a child’s particular need in the event that the case ends up in court.

Bulitt goes on to address aspects of a successful mediation process and the balance between the divorcing parents’ wishes and the needs of the child. 

The full article can be found online. If you would like to contact David Bulitt, he can be reached at dbulitt@jgllaw.com.

Last week, the Supreme Court ruled that federal law does not require that warehouse workers who package goods for Amazon be paid for the time they spend going through mandatory security screenings at the end of their shifts. These warehouse workers are required to go through a screening process—which is intended to prevent theft and can sometimes take as long as 25 minutes—before they are permitted to leave for the day. The Court ruled that the workers are not legally entitled to be paid for that time. Predictably, there has been strong reaction to the ruling, with some calling it a slap in the face to America’s blue-collar workers and others calling on Congress to change the law.

Despite the strong reaction, the Supreme Court’s decision in the Amazon warehouse workers case might have little impact in Maryland and other states with similar labor laws. Although the decision is the final word on the issue under federal law, it does not dictate state law. In Maryland, state law would likely require an employer to pay employees for time spent in mandatory security screenings and other mandatory, onsite tasks. This post will give an overview of the Supreme Court’s decision and look at how Maryland state law differs.

The Amazon warehouse workers case

            The case of Integrity Staffing Solutions v. Busk was brought by a group of warehouse workers against their employer, Integrity Staffing Solutions, which provides warehouse staffing nationwide for Amazon.com. The plaintiffs were employed at a warehouse in Nevada, where they processed and packaged goods to be shipped to Amazon customers. The employees claimed that every day they were required to undergo a mandatory security screening procedure before they were permitted to leave the facility at the end of their shifts. The purpose of the screening was to ensure that the employees were not stealing any of the products they were employed to package for Amazon. The employees claimed that they were required to stand in lines, remove items from their persons (such as wallets, watches, etc.), and go through metal detectors. The process could take up to 25 minutes. The employees sued for unpaid wages, arguing that the warehouse was required to pay them for the time spent going through the mandatory security screening and that it had failed to do so.

            In a rare unanimous decision, the Supreme Court ruled that the employees are not entitled to compensation for the time spent going through the required screening process. The Court’s decision was based on the Fair Labor Standards Act (FLSA). Generally, the FLSA requires that employers pay at least the federal minimum wage to employees for all hours worked, as well as overtime pay for hours worked in excess of 40 hours in a week. In another federal statute, the Portal-to-Portal Act, Congress limited the wage-payment requirement, legislating that employers are not required to compensate employees for tasks that are “preliminary to or postliminary to [the] principal activity or activities” of the job.

            This means that, although employers are required to pay employees for all hours they work, they are generally not required to pay them for preliminary or “postliminary” activities, such as commuting to and from work. The Supreme Court has held that the issue of whether an activity is compensable work or noncompensable preliminary or postliminary activity turns on the question of whether the activity is an “integral and indispensable” part of the job. The question under the FLSA is whether the task is an “intrinsic element” of the “principal activities” of the job “and one with which the employee cannot dispense if he is to perform his principal activities.” By way of example, the Supreme Court has held that a meatpacker’s time spent sharpening knives is “integral and indispensible” to the job. By contrast, a poultry plant employee’s time spent putting on and removing protective gear was held not to be “integral and indispensible” to that job.

            In the Amazon warehouse workers case, the Court ruled that the employees’ time spent going through the mandatory security screening process was not “integral and indispensible” to the job. As the Court explained, “Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers.” The Court concluded that the security screenings constitute “postliminary” activities for which the FLSA does not require compensation.

How Maryland law differs

            The FLSA is not the only law that governs wage payment. Like many states, Maryland has its own version of the FLSA, known as the Maryland Wage and Hour Law. Like the federal FLSA, Maryland labor law requires employers to pay employees a minimum wage for all hours worked,[1] as well as time-and-a-half for any hours worked over 40 in a week.[2] Unlike the FLSA, which defines compensable work as tasks that are deemed “integral and indispensable” to the “principal activities” of the job, Maryland law defines it more broadly.

The Maryland Department of Labor, Licensing, and Regulation defined “hours of work” under Maryland law to include time during which an employee “is required by the employer to be on the employer’s premises, on duty, or at a prescribed workplace.” Under this standard, if an employer requires an employee to remain at the employer’s premises or at a prescribed workplace for any reason—which would presumably include security screenings—the time is considered “hours of work” that must be compensated under Maryland law.[3]

Although, according to the Supreme Court, the screening process at the Amazon factory is not an “integral and indispensible” part of the job, it is undisputed that the employees were actually required to undergo the screening before they could leave the warehouse for the day. It would appear that, for purposes of the security screening, the employer required the employees to be “on the employer’s premises” and “at a prescribed workplace.” In that case, the screening process would be considered “hours of work” under Maryland law. Any warehouse located in Maryland with a similarly policy would likely be required to pay its workers for the time spent in the mandatory screening process.

Wage and hour law, like employment law generally, is a complex patchwork of federal and state statutes and regulations. Employer policies that are appropriate under federal law might not comport with state law, or vice versa. Prudent employers will consider not only the FLSA, but also state laws regarding wage and hour policies to ensure compliance.