Author: JGL Law

As a general rule, the states (including Maryland) and the federal government recognize two general categories of working relationships: employer- employee relationships, and independent contractor relationships.  While the majority of persons are employees (and the law presumes as much), employers often miscategorize workers as independent contractors.

Employers do so sometimes unintentionally, but also sometimes intentionally in order to avoid legal requirements such as paying the hourly minimum wage and paying wage taxes.

In recent years, several successful lawsuits have been brought by exotic dancers claiming violations of the federal Fair Labor Standards Act (“FLSA”) and similar state laws.  One such case was brought in Maryland federal court by dancer Ms. Unique Butler against the owner of the Norma Jean Nite Club in Baltimore, Maryland where she danced.[1]  The club provided no compensation to Ms. Butler, but instead allowed her to keep nearly the entirety of her tips.[2]  After her separation from the night club, Ms. Butler sued the company for violation of the FLSA and the Maryland Wage Payment and Collection Law.[3] On November 7, 2013, the Court found as a matter of law that Ms. Butler was an employee as defined by the laws, and not an independent contractor as Defendant argued, making Defendant liable to Ms. Butler for damages.[4]

To determine whether Ms. Butler was Defendant’s employee, the Court applied the well-established “economic reality” factors test.  Those factors include:

1. The degree of control that the supposed employer has over the manner in which the work is performed;
2. The worker’s opportunities for profit or loss dependent on his managerial skill;
3. The worker’s investment in equipment or material, or his employment of other workers;
4. The degree of skill required for the work;
5. The performance of the working relationship; and
6. The degree to which the services rendered are an integral part of the putative employer’s business.[5]

In finding that Defendant exercised a sufficient “degree of control” over Ms. Butler to create an employment relationship, the Court highlighted the following factors: the Defendant’s significant control over the atmosphere of the club, the club’s clientele, and the operation of the club (i.e., advertising, marketing, and managing profits).[6] In light of this, the Court found that the “Defendant exclusively controls the flow of customers, on which Plaintiff depended for her income.” Other factors that different courts have used when analyzing this point include: whether establishments have set behavior guidelines or “codes of conduct” which result in penalties if violated; set prices for lap dances; set work schedules for the dancers; control costume choice; and control music choice.[7]  That Ms. Butler could set her own fee for lap dances, come and go as she pleased, and did not have the “day-to-day aspects” of her performances controlled by the Defendant did not preclude a finding that the Defendant exercised more control over her than she did herself making her economic status “inextricably linked to those conditions over which [Defendant has] complete control.”[8]

In examining the remaining factors, the Court agreed the facts of the case supported the legal conclusion that Ms. Butler was an employee.  The Court noted that none of the dancers at the club, including Ms. Butler, were required to possess skill in order to dance at Norma Jean’s Nite Club.  The lack of skill is indicative of an employment relationship, as independent contractors are generally highly skilled in his or her chosen field.[9]

The Court also found that the services Ms. Butler provided (exotic dancing) was integral to the nature of Defendant’s business as an adult entertainment bar.  Despite the Defendant’s attempt to characterize itself as a “sports bar” and arguing that the existence or non-existence of female exotic dancers was not integral to its business, the Court remarked that “[c]ourts have routinely noted that the presence of exotic dancers are essential, or obviously very important, to the success of a topless nightclub.”[10]

This case is just one in a number of recent wage law suits involving exotic dancers, and it surely will not be the last.  Ms. Butler’s success in her suit does not guarantee that all exotic dancers are “employees” in the eyes of the FLSA, as the existence of an employee-employer relationship must always be determined on a case-by-case basis.  Her victory does, however, demonstrate how important it is that employers correctly categorize workers or face a significant risk of monetary penalties.

As a family law practitioner, there have been numerous occasions when a client or potential new client contacts me and says that they think they have an easy case – that they “have this one in the bag.”  However, slam dunk cases are hard to come by.

Family law, in the State of Maryland, is established by statute (the Maryland Code Annotated, Family Law Article) and case law. And while a specific act, conduct or behavior on the part of one spouse (or opposing party) may appear morally reprehensible or repugnant to the point that you may feel you “have it in the bag”, the Maryland legislature and the judicial system are not always in alignment with that thought.

Take, for instance, the case of pornography addiction and adultery in the context of a custody case.  Dick and Jane have two children.  One evening, while browsing the history on the home computer shared by Dick and Jane, Jane discovers that Dick has been visiting hundreds of pornography websites on a daily basis for the past year.  To add insult to injury, prior to her latest discovery, Dick and Jane were experiencing significant marital difficulties which Jane attributed to the affair that Dick was having with her sister.  Jane is distraught by her discoveries and immediately wants to take steps to end the marriage and feels that based on the combination of Dick’s addiction and his affair, she should easily be able to walk away with sole physical custody of her two minor children – with little or no visitation by Dick.  Do you blame her? What he is doing is morally reprehensible!

From the Court’s perspective, allegations regarding adultery and pornography are a part of their daily docket.  In fact, I would feel comfortable wagering that a majority of the contested cases that are heard by the Court revolve around at least one of these behaviors, if not a combination of the two.

So what does the Court take into account when determining an award of custody? And what weight is given to Dick’s pornography addiction and committing of adultery within the analysis?

The Court’s jurisdiction is based on statute, but the factors that it considers have been refined by the pronouncements of the appellate courts over the years.  Case law has established that custody disputes be resolved by a judge based on a determination of “what is in the child’s best interest.” This is a somewhat amorphous notion and there have been numerous cases in Maryland that have served to define and clarify what this means. (i.e. Montgomery County Dept. of Social Services v. Sanders, 38 Md. App. 406, 381 A.2d 1154 (1977); Taylor v. Taylor, 306 Md. 290, 508 A.2d 964 (1986); and Petrini v. Petrini, 336 Md. 453, 648 A.2d 1016 (1994)).

Pursuant to case law, when a Maryland judge determines who custody should be awarded to, the following factors are to be considered in determining what will be in the bests interests of the child: (1) fitness of the parents; (2) character and reputation of the parties; (3) desire of the natural parents and agreements between the parties; (4) potentiality of maintaining natural family relations; (5) preference of the child; (6) material opportunities affecting the future life of the child; (7) age, health and sex of the child: (8) residences of parents and opportunity for visitation; (9) length of separation from the natural parents: and (10) prior voluntary abandonment or surrender.  However, it is important to note that this is not an exhaustive list and the judge is given broad discretion and can consider any evidence that relates to the child’s physical or emotional well-being.  Furthermore, a custody determination is fact-driven and the judge is required to carefully examine the facts before him or her on a case-by-case basis.

So where does pornography addiction and adultery fit into the Court’s analysis and custody determination?  Both behaviors would fall within the Court’s analysis of the “fitness of the parents” and “character of the parties” but case law has made it clear that the Courts are not permitted to weigh one individual factor more heavily than any other in determining custody.

In fact, in 1977, the Maryland Court of Appeals abolished the presumption that an adulterous parent is unfit.  (Davis v. Davis, 280 Md. 119, 372 A.2d 231 (1977)).  And just because the custodial parent committed adultery does not mean that the scales will tip in favor of the noncustodial parent unless there is a showing that the adulterous relationship has had a detrimental effect on the minor child.  (Swain v. Swain, 43 Md. App. 622, 406 A.2d 680, cert. denied, 286 Md. 754 (1979)).  However, there have been minimal cases in Maryland describing at what level adultery would be considered a detriment to the minor child.  Similarly, there is no presumption that a parent who views or collects pornography is unfit. (Andrews v. Andrews, 242 Md. 143, 218 A.2d 194 (1966)).  Thus, at what level, if any, does a pornography addiction arise to the level of being detrimental to the child?  It is ultimately up to the Court to decide.

The client must also be counseled that the judge who decides their case is a human being, in every essence of the word, and that their decisions are often effected by their human experiences.  Just as all human beings are biased in some manner or another, judges often come into their jobs with biases.  The judge hearing your case may have lost custody of their children or had their access restricted.  They may be paying alimony or had their judicial pension divided.  The judge’s spouse may have committed adultery and they are still hurt by the betrayal.  Or, the judge may be the adulterer and may have completely rationalized their behavior.  They may even have had a close friend or family member who is suffering from the devastation caused by an adulterous spouse.  To think that these experiences do not cloud the lens through which the judge must weigh and consider the factors is shortsighted.

The bottom line is that just because a party behaves in a morally reprehensible manner that does not exclude them from being awarded custody of their child – or winning their case.  Often times, it’s a crapshoot if you go to trial and the client should be aware of this.

Welcome to post number 2 in my primer for the new business owner series. In my last post we discussed doing business as a sole proprietor.  In today’s installment we turn to the limited liability company or LLC.  By a wide margin, LLC’s are the preferred choice of entity for most small business owners.  The benefits of operating as an LLC are numerous and include the following:

1. Limited Liability.  LLC’s provide their owners with the same personal asset protection available to corporate shareholders.
2. No entity level tax.  LLC’s are not taxed as separate entities.  Instead, the income or loss of the LLC’s business is passed through to the owners of the LLC who report it on their tax returns.
3. Flexibility.  Like partnerships, LLCs are contractual in nature.  This provides LLC owners with much greater flexibility when it comes to choosing how to manage the business and share in its profits and losses.
4. Simplicity.  LLCs are not bound by many of the technical requirements associated with operating as a corporation (think organizational minutes, stock certificates, by laws, documenting annual meetings and the like).  Forming an LLC is very simple and requires only the filing of a one page organizational document.

There are of course some potential disadvantages to doing business as an LLC.

1. Employment Taxes.  Employment taxes paid by the active members of an LLC can be higher than those paid by owners of an S corporation.  For this reason, many LLCs make an election to be taxed as an S corporation.
2. Phantom Income.  Owners of an LLC will be taxed on the profits of the LLC even if those profits are not distributed.  This is generally not a problem for the majority owners since they will likely control the timing of distributions of available cash.  Minority owners however should be aware of the possibility that they may be taxed on their share income even if they don’t receive a corresponding distribution of cash.
3. Flexibility.  While the flexibility to structure the management and economics of the business in pretty much any way the owners see fit is a significant benefit of the LLC form of doing business, that flexibility can also get LLC owners into trouble.  Particularly when it comes to their economic deal, complex partnership tax laws could be implicated depending on the specifics of the business deal.

Generally speaking, for the small business owner the advantages of operating as a limited liability company will outweigh the disadvantages, especially for the single owner business.  However, each case is unique and determining whether there are benefits to be gained from operating as an LLC requires a careful review of all of the specific and unique circumstances applicable to the  particular business and its owners.

What was thought by many practitioners and many in the news media to be one of the most significantly restrictive Supreme Court decisions on class actions in recent memory, Wal-Mart Stores, Inc. v. Dukes,[1] may not be so formidable for plaintiffs seeking redress through the class action process.

A limited application of Wal-Mart appears to be a particularly good possibility for those individuals filing in the Mid-Atlantic region covered by the United States Court of Appeals for the Fourth Circuit because of its ruling this week in Scott v. Family Dollar Stores, Inc.[2]  Scott involves fifty-one (51) female managers or former managers at Family Dollar who are claiming sex discrimination.

Like Scott, the Supreme Court’s 2011 Wal-Mart decision concerned the commonality requirement under Rule 23 for class actions and whether it could be satisfied in a sex discrimination case under Title VII.  In Wal-Mart, 1.5 million current and former female employees of Wal-Mart claimed that Wal-Mart’s policy of providing local managers with subjective decision making authority over pay and promotions caused an illegal, disparate impact on its female employees. The plaintiffs also alleged that Wal-Mart’s failure to stop this subjective, discretionary authority was illegal on a class-wide basis.  The Supreme Court rejected the plaintiffs’ claims that a class was present in Wal-Mart.

Many felt that Wal-Mart  sounded the death knell for not only employment class actions but also consumer, antitrust, and any other type of class actions where a defendant or its agents made subjective decisions.  That, in fact, was the position of the District Court in Scott in dismissing the plaintiffs’ case and refusing to allow them to amend their complaint. The district court held that “[t]he Supreme Court made clear in Dukes that, as a matter of law, plaintiffs . . . cannot satisfy the Rule 23(a) commonality requirement . . . as a result of subjective decisions made at the local store levels.” Scott v. Family Dollar Stores, Inc.[3]

In Scott, the Fourth Circuit explicitly rejected this argument and held “Wal-Mart did not set out a per se rule against class certification where subjective decision-making or discretion is alleged.” The Fourth Circuit found that the district court was “clearly erroneous” by not allowing the complaint to be amended and then analyzed under Rule 23. The Fourth Circuit went further and noted that “Wal-Mart is limited to the exercise of discretion by lower-level employees, as opposed to upper-level, top-management personnel,” meaning that subjective decisions by upper-level management could be the basis for a class if tied to a company policy.[4]    “Thus, to satisfy commonality, a plaintiff must demonstrate that the exercise of discretion is tied to a specific employment practice, and that the ‘subjective practice at issue affected the class in a uniform manner.’”[5]    “To expound,” the Fourth Circuit pointed to, among other examples, Family Dollar’s “salary range policy [that] sets mandatory minimum and maximum pay for Store Managers,” but provides “exceptions above the range–granted by the corporate Vice Presidents– [that] are often granted more in favor of men[,]” such that, if the plaintiffs could show this to be true, the commonality requirement could be satisfied.[6]

What this means going forward, at least in the Mid-Atlantic region, is that when “discretionary decisions . . . are made by high-level corporate decision-makers with authority over a broad segment of [a defendant]’s employees,” Wal-Mart is likely not applicable and a class action has the possibility of going forward.[7]

The Commissioners prefer you do not file in the alternative. They want a nice clean case presented. However, you still have a right, and probably an obligation, in some duly contested cases, to file in the alternative.

In occupational disease cases, there must be a showing of industrial loss of use, often evidenced by loss time. One recent case involved a food service worker in a public school system. The worker was extremely dedicated and never wanted to miss work, but she was injured by a repeatedly broken deli slicer, which, on its face, sounds like an insidious onset over time and not one accident.

The issue arose, when unbeknownst to her, she suffered a rotator cuff tear from using the “broken meat slicer” regularly for a year, but continued to work. After seeing a doctor who ordered an MRI, the rotator cuff tear was diagnosed.

Even though she did not miss much time from work, there was an issue of when the time was lost and whether the two year statute of limitations had passed. Later in the year, she had an incident when she attempted to lift a huge pot with no assistance, but due to excruciating pain in that same shoulder, she injured the shoulder more and dropped the pot.

After dropping the pot, she became disabled. Not only did she remain disabled but she was forced to have the rotator cuff repaired.

The issues became: 1) Does she have to file occupational disease because the rotator cuff tear occurred (per the doctor’s expert opinion) from the long standing use of the broken machine, even though she did not have any substantial time off from work; 2) does she have to file an accidental injury and claim pre-existing issues; or 3) can she file both claims?

In general, to prevail on a claim for occupational disease, the claimant is required to produce some evidence, even if minimal, to demonstrate: (1) that the alleged occupational disease is inherent in the nature of the work performed; (2) that her injuries were causally related to her performance of that work; and (3) that as a result, she was incapacitated as of the date of her alleged disablement. Smith v. Howard County, 177 Md. App. 327 (2006).

An accidental injury has different statutory requirements. In Harris v. Board of Education, 375 Md. 21 (2003), the Maryland Court of Appeals ruled that the worker’s injury itself, not the activity giving rise to the injury, must be accidental, and that an injury is accidental as long as it was unexpected or unintended. Additionally, the activity giving rise to the injury need only “arise out of and in the course of employment,” and not be otherwise excluded by the Act (Md. Code Ann., Labor & Employment Article, section 9-101 et seq.).

Interestingly, in this case, the Commission allowed the claimant to file both an occupational disease and an accidental injury claim. The Commissioner ruled that she did not have any occupational disease (probably due to no economic loss or slow down and or the limitations issue), but that she sustained an accidental injury, and granted disability time, the surgery, and necessary medical treatment. This result was excellent because one would usually prefer the ruling to fall under accident over occupational disease.

Ultimately, this claim will have an apportionment issue at the time of determining permanent partial disability, but many claims do. Had the complainant not also filed the occupational disease claim, however, the Commissioner could deny a portion of the medical issues preceding the accident. In that case, there would have been no distinguishing where the injury started or ended. Moreover, had she not sought both remedies, the other side could have requested a continuance on the grounds that it was not an accident, but rather an occupational disease.

But this way, complainants have all your ducks in a row and you let the Commissioner do his or her job – choosing the best option between occupational disease and accidental injury!

Well it’s that time of year again.  Yes, it’s time to perfect your strategy, lock yourself in your office, “Hold all my calls” and get this work finished.  No, I’m not talking about that tax return you extended in April or the TPS reports you have yet to complete; I’m talking about the final tweaks to your roster that will finally put you on top of your fantasy football league: can’t you visualize the Championship ring now?

Report your winnings

But, before you plan on how to spend your winnings, don’t forget about your silent partner.  Yes, I am referring to the United States Treasury.  The Internal Revenue Service considers all gambling winnings taxable income, whether you won at a table in Las Vegas, during your weekly poker game with your buddies, or because of your brilliant decision to draft Peyton Manning and LeSean McCoy onto your fantasy team. There is no minimum! So, regardless of the payout for your league, the IRS considers it taxable income; and as a result should be reported on your individual income tax return as “other income.”

Better yet; report your losses

So if this is finally your year to have bragging rights, you may have to report your winnings to the IRS as income. However, if this year is like every preceding year, and you finished 13^th in a 12-team league; you may be entitled to claim your loss on your income tax return.  Internal Revenue Code Section 165(d) allows a taxpayer who itemizes to deduct gambling losses to the extent of winnings earned during that same year.[i]  Note, you cannot just count your losses. Instead, you can only count as much in losses as you have won. In other words, if you spend $100 on lottery tickets and you are lucky enough to win $75, you can only deduct $75.

So while you are choosing who to start on Sunday, don’t forget you are not just playing for that 55-inch television or a gift for that special person in your life, you are also playing for your favorite uncle — Uncle Sam.

Finally, as with most areas of the law, this too is open to interpretation and is fact specific. So, as with any income tax planning, please consult your tax advisor to determine any actual impact on your individual income taxes or before making any tax-related decisions.

24 hour marriages and even quicker divorces – Hollywood is full of them. On June 29, 2012, Katie Holmes filed for divorce and by July 9, 2012, her and her famous ex had hammered out a divorce agreement settling all issues with regards to property, custody and support. A mere two weeks after filing divorce, both Katie and Tom were able to walk the next red carpet solo. So can your divorce be this easy? Well, yes . . . and no.

Many clients first question is how do they obtain their own (kind of) quick and (mostly) hassle-free divorce? First, you have to understand the grounds for divorce in Maryland and the difference between a limited divorce and absolute divorce.

When you envision a divorce what comes to mind is an absolute end to the marriage and a final division of property matters and custody and support issues. In Maryland, we call that an absolute divorce. However, before you even get to an absolute divorce, the Court can award a limited divorce. In a limited divorce, you are legally separated but the marriage has not been terminated and the Court cannot determine all property rights. However, like with an absolute divorce, the Court can make support awards.

Why file for a limited divorce? Well for starters, you may not yet have the grounds for an absolute divorce. In order to succeed on a claim for absolute divorce, you must be able to prove one of the following:   (1) adultery; (2) desertion; (3) 12-month separation; (4) conviction of a felony or misdemeanor; (5) 2-year separation; (6) insanity; (7) cruelty of treatment; or (8) excessively vicious conduct. (See Maryland Family Law Article § 7-103).

As you can see, this can be an extremely tough standard to meet. For instance, what if you and your former spouse decide to amicably end the relationship but have not been separated for 12 months? This is a situation where you may want to file for a limited divorce on the grounds of: (1) cruelty of treatment of the complaining party or of a minor child of the complaining party; (2) excessively vicious conduct to the complaining party or to a minor child of the complaining party; (3)  desertion; or (4) voluntary separation, if the parties are living separate and apart without cohabitation, and there is no reasonable expectation of reconciliation. (See Maryland Family Law Article §7-102).

So while you may not meet the grounds for an absolute divorce, you can file for a limited divorce and obtain relief from the Court, such as alimony or child support, and amend your Complaint at a later date to obtain that absolute divorce.

Katie and Tom also had the benefit of a prenuptial agreement. In Maryland, you may also enter into your own prenuptial (sometimes called antenuptial agreements) which allocates support and property rights to a party. A prenuptial agreement protects the rights of both parties in the event the marriage ends. Like Tom, a party may have a business interest they wish to protect and like Katie, the financially inferior spouse, may wish to insure that their support rights are protected. A prenuptial agreement which resolves property and support issues may save you the time and expense of a costly litigation.

So can your divorce be as hassle free as Tom and Katie’s? Kind of. While we can’t all be celebrities, a clearly outlined prenuptial agreement and knowing your grounds for divorce can have you walking your own red carpet a lot sooner than you think.

On October 1, 2013, the Reasonable Accommodations for Pregnant Workers Act (“RAPWA”) became effective and applies to Maryland employers who have fifteen (15) or more employees.  Taking the lead from laws like that Americans with Disabilities Act, the new RAPWA will require employers to provide reasonable accommodations for employees with a disability caused by, or contributed to, by a pregnancy.

Keep tuned-in to the JGL Law Blog for discussions on the development of this law as it gets applied in the workplace.  To learn more about the law, check out these posts by HR Hero and the National Women’s Law Center.

Last week, we discussed the Affordable Care Act’s (ACA) ), commonly known as “Obamacare”, looming October 1, 2013 notice requirement.  Now that you have notified your employees of their options under the ACA, you must explain what it means for them.

Many employers are preparing handouts and scheduling all-hands meetings to answer many of these questions.  Inevitably, at least some of your employees are going to be confused.  Indeed, lawmakers, regulators, and lawyers are scratching their heads as to how to navigate the ACA’s minutiae.  To help, we’ve prepared sample answers to a few of the questions most likely to be asked:

Q:  Why am I receiving this notice?

A:  You have no doubt heard news reports about “Obamacare,” which is also known as “Healthcare Reform” or the “Affordable Care Act”.  Under this new law, employers are required to notify all of their employees of their ability to purchase their own insurance coverage under new “Health Insurance Marketplaces.”  With all that said, you should know, too, that the new Marketplaces do not impact your eligibility for coverage under the Company’s health plan.
Q:  Can I purchase insurance on the Health Insurance Marketplace if I find a cheaper plan than the one that the Company offers?

A:  Yes.  Almost anyone will be eligible to purchase insurance coverage on the Marketplace.  However, in the event that the Company offers to provide insurance coverage for you and your dependants, the ACA will then limit the affordability of any plan you could instead obtain in the Marketplace.

Q:  Can I qualify for a tax subsidy if I purchase coverage on the Health Insurance Marketplace?

A:  Employees whose employers offer them affordable, minimum value coverage will not qualify for a tax subsidy.  If you are not eligible for coverage from an employer (or you pay more than 9.5% of your income to purchase coverage through your employer) you may qualify for a subsidy, and you should explore your coverage options on the Marketplace.

Q:  Is the health coverage I have through my employer “affordable” and of “minimum value”?

A:  This question is difficult.  The general rule is that employer-provided-coverage is “affordable” if an employee ultimately does not pay more than 9.5% of his or her income for self-only coverage.  Coverage is of “minimum value” if the plan’s share of the total benefit costs covered by the employer is no less than 60% of the total cost – in short, if you pay for only 40% and your employer pays for the remaining 60% of all health care costs.

Q:  Weren’t the individual mandate penalties delayed until 2015?

A:  No.  Although certain penalties for large employers have been delayed until 2015, the individual mandate is scheduled to take effect on January 1, 2014.  After that, individuals who do not obtain coverage may be subject to an annual penalty equivalent to the greater of $95 or 1% of their household income.

Of course, employees are likely to have many more questions in the months following October 1, 2013.  Employers can always refer their employees to various federal government resources, such as www.healthcare.gov, but outside counsel can not only assist in answering these questions, but also in preparing a comprehensive approach to maintaining compliance with the ACA.

While divorce is not what most couples hope for, some couples find that it’s inevitable.  That doesn’t mean that a knock-down drag-out fight is inevitable.  Many couples opt for the “friendly divorce” also known as collaborative law or collaborative practice.

What is collaborative practice?

Collaborative Practice is a fairly new option for divorcing couples to resolve disputes respectfully and equitably without going to court.

The goal of collaborative practice is to help divorcing and separating couples to focus on their most important goals, especially children, throughout the divorce process. The end result is a more efficient, targeted and productive way to resolve disputes.

What distinguishes collaborative practice from other methods of divorce?

Collaborative Practice promotes respect and keeps spouses in control of the process, not judges.

It addresses each couple’s unique concerns, as opposed to litigation, which is driven by the general rule of law meant to apply to all.

Because clients agree not to go to court, the process is more open and less adversarial. The goal is to enhance communication throughout the process and lay the foundation for a healthier relationship after the divorce.

What are the biggest differences between collaborative practice and litigation?

Control

In collaborative, you and your spouse agree not to go to court. This gives you and your spouse control of the process and outcome versus litigation, where a judge makes the final decision.

Collaboration

Instead of the win-lose court setting, the entire collaborative team ensures that both spouses work with each other, not against each other, towards mutually beneficial solutions for critical issues.

Communication

One barrier in litigation is a lack of effective communication between spouses. In the collaborative process, spouses learn a framework for effectively communicating their concerns and goals.

What is the biggest difference between collaborative practice and mediation?

Personalized counsel

Both you and your spouse are represented by your attorney throughout the entire collaborative process.

Team approach

The entire collaborative law team is there to help facilitate communication between the spouses, working towards the best possible solution for all and making sure all issues are addressed.

How does it work?

• Utilizes specialists who leverage their areas of expertise to address children’s needs and the emotional and financial aspects of divorce;

• Creates a safe environment for both parties without the threat of court;

• Provides a structure for communication that considers each person’s needs;

• Shares information that allows good decisions to be made; and

• Focuses on a creative and respectful approach that helps clients reach a mutually agreeable settlement.

Who is Collaborative Practice for?

• People going through a divorce who want a civilized, respectful resolution of the issues and are willing to focus on solutions rather than on blame or revenge;

• People who want to maintain a productive working relationship with their (soon to be ex) spouses;

• People who will be co-parenting and want to keep children’s interests at the forefront, like protecting children from the negative impact associated with bitter litigation;

• People who want to control decision-making over child-rearing and/or financial arrangements rather than turning it over to a stranger (judge);

• People who place as much or more value on the relationship that will exist in the restructured family as on obtaining maximum resources; and

• People who value privacy.

What are the benefits of Collaborative Practice?

Better for children

• Gives children a voice in the process, alleviating the potential of future trauma that sometimes persists for generations

Private

• Keeps problems and assets private

Less stressful

• Improves communication between parties

• Keeps control of process with the spouses

• Promotes respect and healthier long-term communications

Saves time

• The process is more efficient, productive and targeted because of the unique structure of the collaborative team

Learning Effective Communication Skills

• Communication skills acquired during collaborative process may have positive applications outside divorce.

Source:  International Academy of Collaborative Professionals

If you are considering divorce and especially if you have children together, you may want to consider a different way to approach getting divorced.  Call us at 301-220-2200 and learn how a team of skilled professionals can help manage the many aspects of divorce — the legal issues, the emotional turmoil, the concerns for the children, and the financial and property questions. The collaborative process encourages mutual respect, emphasizes the needs of the children, keeps the control of the process with the individuals, utilizes a problem-solving approach, and identifies and addresses the interests and concerns of all.

I spent a good deal of my childhood vacations sitting with my brother and cousins sans seatbelt in the way way backseat of my parent’s Volvo station wagon or the way way back in my uncle’s simulated wood-paneled Mercury Grand Marquis Colony Park (commonly known as the Woodie).

Playing cards or taunting drivers who faced the wrath of crayon-scribbled signs, drawings, and jokes authored by my cousins, brother, and me, while sitting in traffic or on a long car ride to Toronto or Lexington, Kentucky, are experiences few children of the new millennium will understand (Mercury discontinued the Colony Park in 1992). Causing trouble together in the way way back was something we reveled in until we were too big to fit in the way way back together. The charms of sitting in the way way back and seatbelt-free zone disappeared when my cousin Chat and I, the oldest, graduated our antics to the backseat, or fought over who got to sit in the front. Seatbelts were then, of course, expected.

Thinking back, I realized our parents probably enjoyed the relief and distance from our constant chatter, particularly once we were old enough to care what was playing on the radio; so, letting us ride seatbelt free in the way way back was to everyone’s benefit.

Only now am I surprised to learn that new a Maryland law redefines the age at which an adult sitting in the backseat is required to be secured by a seatbelt.  This law will also make back-seat seatbelt use for adults enforceable as a mere secondary violation for adults.

Maryland has been a primary front-seat seatbelt enforcing state since 1986 for passengers over 16 years of age. Effective October 1, 2013, Maryland law will expand the age of adult passengers required to be secured by a seatbelt while seated in any position in a car to as young as 16 years old. This means that everyone riding in a car will have to be secured with a seatbelt.

This is surprising, since seatbelt use seems to be common sense. Still, under the new law, violation of the seatbelt law for passengers seated in the back seat will be a secondary violation, meaning it will be enforceable only when the driver is detained for a suspected violation of another law.

Under the same law, passed by the General Assembly as SB 87 (2013) and signed into law on May 2, 2013 as Chapter 197), penalties associated with violations of the seat belt (and child safety seat) laws increase from $25 to $50. The bill also removes the “floater exemption” that allowed a driver to transport more children in a vehicle than the number of proper securing locations.

In addition, new Maryland law passed as HB753/ SB 339 prohibits all drivers from using a cell phone without a hands-free device while driving effective October 1, 2013. The exceptions are for calls placed to 911, hospitals, ambulances, fire and other emergency first responder and law enforcement agencies.  Certain emergency first responders and law enforcement officers are exempt from using a hands-free device if they place a call while driving and within in the scope of their official duties.

Maryland joins 11 other states and DC by changing enforcement of the hands-free cell phone use law to a primary violation this October 1, meaning drivers need not be detained for another violation in order to be cited. Fines for first time offenders increase to not more than $75; second offenses carry a fine of not more than $125; third and subsequent offenses carry a fine of not greater than $175. Drivers cannot be fined points for the violation unless use of a cell phone while driving contributes to an accident.

While Maryland need not be applauded for these sensible updates to the Transportation Article, this is as good an occasion as any to remind everyone about driving hands-free while on your cell phone and about seatbelt safety, no matter where you or others are seated in the car. Buckle up out there and drive safe.

*   *    *

Puja Gupta is an associate in the Litigation group at Joseph Greenwald & Laake, P.A. She focuses on all aspects of civil ligation, including employment litigation, commercial and business litigation, constitution law and civil rights cases, administrative law, and appeals. You can find her on LinkedIn or email her at pgupta@jgllaw.com

Beginning on January 1, 2014, individuals and employees of small businesses will be able to access health insurance coverage through the Health Insurance Marketplace created by the Affordable Care Act (ACA), commonly known as “Obamacare”.  Among other things, the ACA requires that employers provide a notice to employees with information regarding their coverage options, including those available in the Marketplace, by October 1, 2013.  Importantly, this notice requirement is separate from the universal mandate pushed back a year by the Administration this past summer.

Under this requirement, found in the newly-minted Section 18B of the Fair Labor Standards Act (FLSA), employers are required to provide current employees with written notice about the Marketplace and new employees hired after October 1, 2013 must receive such notice within 14 days of their start date.

Because this aspect of the ACA is promulgated under the FLSA, all employers who are subject to the FLSA are required to send this notice – NOT just those that employ the commonly known minimum of fifty employees for the ACA’s general mandate.  Covered employers must provide a notice of coverage options to all employees, regardless of whether or not they are eligible for or enrolled in coverage under an employer-sponsored health plan.  This notice requirement even extends to part-time, seasonal and temporary employees.

As for the notice itself, it must be in writing and be written in a manner calculated to be understood by the average employee.  At a minimum, the notice must contain the following information:

• The existence of the Marketplace (referred to in the statute as the “Exchange”), including a description of the services provided by the Marketplace, and the manner in which the employee may contact the Marketplace to request assistance;

• The possibility that employees may lose the employer contribution to any employer-provided health plan if they purchase a qualified health plan through the Marketplace;

• The possibility that employees may lose the ability to exclude employer and employee contributions from their income for federal income tax purposes if they purchase a qualified health plan through a Marketplace; and

• The possibility that the employee may be eligible for a premium tax credit if the employee purchases a qualified health plan through the Marketplace.

To assist employers with their notice obligations, the Department of Labor (DOL) has promulgated two model notices, one for employers who do not offer a health plan and another model for employers who do offer a health plan to some or all employees.  Employers can use one of these models or create their own so long as the notice meets the above content requirements.

As to delivery, employers may deliver the notice via first-class mail, but they can also distribute the notice electronically, per Department of Labor Regulations, 29 CFR 2520.104b-1(c), so long as the recipient is either (a) an employee who uses a computer as part of his or her normal job function, or (b) an employee who has consented to electronic delivery in a manner that demonstrates they can effectively receive the electronic delivery.

What about penalties for non-compliance?  Although there are no specific fines or penalties for failure to give proper notice, we encourage employers to comply with this requirement because failing to do so could expose employers to FLSA liability from employees who suffer damages as a result of such failure.  Although the government is working hard to provide employers and employees with updated compliance information, outside counsel can assist in developing a step-by-step, deadline-by-deadline plan to ensure that employers do not run afoul of the ACA.