Counseling is one of the most important services Marc provides to both his business and individual clients. For employers, informed counseling is a key component to almost every aspect of maintaining a workforce — from establishing policies and procedures that comply with the law, implementing employment agreements that govern the terms and conditions of employment and impose appropriate restrictions on post-employment activities, avoiding pitfalls when hiring, disciplining and terminating employees, properly compensating employees and obtaining other advice geared to avoid costly litigation. Counseling is equally critical for employees in all phases of the employment relationship. Employees are well advised to obtain legal counsel before signing any Employment Agreement, especially those containing non-compete or non-solicitation provisions that could materially affect their ability to work in their chosen field of expertise following their departure. Likewise, employees should seek counsel in the event issues arise during their employment concerning compensation, discrimination or harassment and in the event there are circumstances calling into question the legitimacy of their termination.
EXECUTIVE AND EMPLOYMENT AGREEMENTS
Employment Agreements play a vital role in the employment relationship for both employers and employees. While not critical for all job categories, employers should consider implementing Employment Agreements for executives, employees involved in sales, IT employees and others with access to confidential information. A well-crafted Employment (or Executive) Agreement defines the duties and responsibilities of the employee, provides for compensation and benefits, the term of employment, grounds for termination, whether severance pay will be provided in certain circumstances and can include restrictions on the employee’s post-employment activities that serve to protect the employer, including non-compete and non-solicitation prohibitions. As an employee, if you are asked to sign an Employment Agreement, you would be well advised to obtain a professional review of the agreement before signing the document, which provides you with an opportunity to negotiate more favorable terms and obtain a complete understanding of your rights and obligations during and after the conclusion of the employment relationship.
During his legal career, Marc has drafted, negotiated and reviewed innumerable employment agreements on behalf of employers, executives and other high-level employees, including executives of publicly traded companies. Marc has also litigated and arbitrated a significant number of cases involving employment agreements.
When an employment relationship unexpectedly ends, employers may provide severance pay to ease the burden of unemployment and to help its former employee transition into a new job. For employers, providing severance is often the fair thing to do, particularly for employees with many years of service. Providing severance pay also provides the employer with an excellent opportunity to obtain a release of claims from the employee which provides virtually blanket protection from any legal claims arising out of the employment relationship.
For employees, whether or not you can obtain severance is dependent on a number of variables — such as whether you have an employment agreement that provides for the payment of severance or whether the employer has its own policy providing for severance pay in certain situations. Many larger companies that have implemented reductions in force in these uncertain economic times have provided severance pay to employees who have been laid off.
Even in the absence of an employment agreement or an employer policy providing for severance, it still may be possible to negotiate severance depending on the circumstances underlying your termination. For example, if the facts indicate that you have been discriminated against because of a protected characteristic (i.e. your race, age, gender, color, national origin, disability, etc.), you may have the leverage to negotiate severance pay to settle your claim.
Marc has substantial experience drafting and negotiating severance agreements for both employers and employees and has also litigated a number of cases involving severance issues. In one such case, Marc represented a former employee of telecommunications giant Ericsson, Inc. in which the employee claimed entitlement to severance pay under an ERISA-based severance plan. After an adverse ruling by the United States District Court of Maryland, the Fourth Circuit Court of Appeals reversed the earlier ruling of the District Court and Marc’s client was awarded substantial severance pay. A copy of the Court’s decision can be found here.
All employers must implement and publish policies and guidelines to employees about how to report workplace harassment, discrimination and other forms of wrongdoing. When faced with such allegations, employers are obligated to conduct a prompt investigation to determine the validity of the allegations and determine what remedial action, if any, must be taken. Marc has been involved in hundreds of harassment and discrimination cases during his career, representing both employers and employees. When called on to perform investigations of claims of workplace harassment, discrimination and other wrongdoing, Marc uses his experience from both the employer’s and employee’s perspective to conduct a thorough and independent investigation and issue counsel on an appropriate course of action.
Preventative counseling is a vital aspect to avoiding costly litigation, but unfortunately, litigation is sometimes an unavoidable consequence of the employment relationship — for both employers and employees. During his 28-year career as an attorney, Marc has litigated hundreds of employment discrimination, wage and hour, breach of contract, non-compete, and other employment-related cases on behalf of both employers and employees in the state and federal courts in a number of jurisdictions, including Maryland, Virginia, the District of Columbia, Georgia, Alabama, Tennessee, South Carolina, Texas, Colorado, Illinois, Indiana, and Pennsylvania. Marc has also handled numerous cases on behalf of federal employees before administrative agencies such as the Equal Employment Opportunity Commission and the Merit Systems Protection Board.
DISCRIMINATION aND HARASSMENT CLAIMS
Federal, state and local laws prohibit employment discrimination based upon numerous protected characteristics, including race, religion, disability, gender, age, color, national origin and others. The class of protected individuals differs under federal, state and local county laws as does the timeframe in which these claims must be brought. These laws also protect employees against sexual and other forms of harassment. These prohibitions apply during the hiring process, during the employment relationship and sometimes after the conclusion of the employment relationship. Employers must know their legal obligations and how to promptly react to claims of employment discrimination. Employees should likewise seek counsel in the event they believe the have been subjected to illegal discrimination and/or harassment.
During his legal career, Marc has handled hundreds of discrimination claims under a diverse array of federal, state and local laws. Marc spent the first seven years of his legal career defending employers against claims of discrimination and harassment claims brought by employees. Since 2000, Marc has continued to represent employers facing such claims and has also expanded his practice to include representation of private sector and federal employees who have experienced discrimination and harassment in the workplace.
CONFIDENTIALITY, NON-COMPETE/NON-SOLICIT AGREEMENTS
Employers often have a legitimate need to restrict the post-employment activities of a former employee, particularly if the employee had access to the employer’s trade secrets, customer information or other proprietary and confidential information. These restrictions, often referred to as “restrictive covenants,” protect the employer’s confidential information and restrict the former employee’s ability to work with a competitor and/or solicit the former employer’s customers and employees. Generally, non-compete and non-solicit agreements will be upheld by the courts in this jurisdiction provided the employer has a legitimate protectable interest at stake and the restrictions imposed on the employee are reasonable in terms of geographic scope and duration.
Marc has substantial experience preparing agreements containing such restrictive covenants for his clients and has also successfully enforced such agreements in litigation against former employees.
Marc also advises private sector employees with respect to their obligations under confidentiality, non-competition and/or non-solicitation agreements. Executive, IT professionals, and employees involved in sales or who may have access to sensitive and proprietary information are often asked to sign agreements that prohibit the disclosure of confidential information and that contain non-compete and/or non-solicitation provisions. In the event your employer presents you with an agreement containing any restrictions on your post-employment activities, you should always seek legal counsel prior to signing the agreement so you fully understand your rights and obligations should you subsequently leave your job.
SELECTIVE SERVICE CASES
If you are a male between 18 and 25 years of age, the Military Selective Service Act requires you to register with the Selective Service System — the Agency responsible for maintaining information on those potentially eligible for military service in the event the United States government deems it necessary to implement a military draft. Most male U.S. citizens and male immigrant non-citizens between the ages of 18 and 25 are required by law to have registered within 30 days of their 18th birthday. If you are a male between 18 and 25 years of age, you may register on-line by clicking here. You can check to see if you are properly registered here.
Perhaps surprisingly, many non-citizens are required to register, including illegal aliens, legal permanent residents, and refugees. Noncitizens who are not required to register with Selective Service include men who are in the U.S. on student or visitor visas, and men who are part of a diplomatic or trade mission and their families. Generally, if a male non-citizen takes up residency in the U.S. before his 26th birthday, he must register with Selective Service. The Selective Service System has published a useful chart detailing who must register.
Fortunately, the U.S. government has not in recent history actively pursued prosecution of individuals who have failed to register with the Selective Service System. However, there are significant other penalties that are imposed upon individuals who were required to register, but fail to do so before their 26th birthday. For example, eligible males who have failed to register may not be able to obtain federal student loans or grants. Failing to register when required to do so also results in a permanent bar for federal employment unless the individual can demonstrate to the Office of Personnel Management, by a preponderance of the evidence, that their failure to register was not “knowing and willful.” You have two opportunities to do this — an “initial determination” (which almost always results in an adverse decision) and an appeal to the Director of the OPM. It is therefore vital to ensure that your case is thoroughly prepared and presented to OPM in the proper form.
Marc has successfully handled a significant number of cases involving individuals who have not registered with the Selective Service System. Many of Marc’s clients are current federal employees whose jobs are in jeopardy due to their Selective Service status. Others are individuals who desire to become employed by the federal government but discovered during the application process that their Selective Service status forecloses their ability to be hired. Many of Marc’s clients are immigrants who came to the United States as young adults and their circumstances were such that they simply never learned about the Selective Service registration requirements. Marc’s clients also have included individuals who were born in the United States, but simply never learned about the Selective Service registration requirements. Many of our past and current cases have been the subject of articles in our Selective Service blog.
OVERTIME AND OTHER WAGE AND HOUR ISSUES
There are numerous complex federal, state and local laws that govern the compensation to which employees are entitled, including the Fair Labor Standards Act (which governs minimum wage and entitlement to overtime compensation), Maryland’s and the District of Columbia’s Wage Payment and Collection Laws and local county laws that often mandate payment of minimum wage that exceeds federal requirements. These laws impose substantial penalties for non-compliance — the Fair Labor Standards Act imposes nearly mandatory “liquidated damages” (i.e. double damages) and liability for attorney’s fees for failure to pay minimum wage or overtime and the laws in Maryland and the District of Columbia are even more punitive. It is imperative that both employers and employees understand their respective rights and obligations with regard to compensation when the employment relationship begins and ends — for example, employees must be properly classified as “exempt” or “non-exempt” for overtime purposes and employers may be responsible to pay commissions long after the conclusion of the employment relationship. From the employer’s perspective, wage and hour disputes can be among the most prevalent and costly issues confronting your business.
A substantial part of Marc’s practice is devoted to counseling business clients with regard to complex Wage and Hour issues and defending claims in court as necessary. During his legal career, Marc has also successfully handled numerous wage claims on behalf of employees and has often recovered six figure settlements or judgments.
FAMILY AND MEDICAL LEAVE (“FMLA”)
TThe Family and Medical Leave Act of 1993 (“FMLA”) is a federal law that requires “covered employers” to provide up to 12 weeks of job-protected unpaid leave during any 12 month period to “eligible” employees for specific reasons, including for the birth or placement of a child, to care for a family member with a serious health condition or because of the employee’s own serious health condition.
In order to be covered by the provisions of the FMLA and have a corresponding obligation to provide leave to eligible employees, an employer must employ at least 50 employees within a 75 mile radius of the employee’s worksite. In addition, to be deemed an “eligible employee,” and employee must have been employed for at least 12 months and worked at least 1250 hours in the past year.
Marc has experience advising employers with respect to their obligations under the FMLA and its implementing regulations as well as with respect to the often complex interplay between the provisions of the FMLA, the Fair Labor Standards Act and the American’s with Disabilities Act. Marc has also represented employees who have been denied leave or other rights under the FMLA or who have been unlawfully retaliated against because of their use of leave provided by the FMLA.
“Wrongful discharge” is one of the most common, but misunderstood, claims asserted by employees who have unexpectedly lost their jobs. Employment in this jurisdiction is “at-will” unless you have an employment agreement that provides for a definite term of employment. The practical effect of at-will employment means that an employee can be terminated for nearly any reason that is not based upon a protected characteristic, such as race, age, gender or religion.
“Wrongful discharge” is one of the very few exceptions to at-will employment. However, the concept of “wrongful discharge” applies to a very narrow classification of cases in this jurisdiction. Specifically, an employee will have a wrongful discharge case ONLY if their termination violates a clear mandate of public policy and the employee does not otherwise have a remedy. For example, an employee who is terminated for refusing to violate the law would have a wrongful discharge case, as would an employee who is terminated because of her pregnancy (or any other protected characteristic) but works for a small company that does not employ a sufficient number of employees to be covered under federal, state or local anti-discrimination laws.
Marc represents both employers and employees in cases involving wrongful discharge. In one such case, Marc represented 3 employees who alleged they were terminated because they reported suspected abuse of developmentally disabled individuals who lived in homes run by their employer. The case settled on the eve of trial.
FEDERAL SECTOR CASES
Marc has represented a number of federal employees in cases involving various forms of unfair treatment, failure to promote and discrimination on the basis of race, age, gender (including sexual harassment and “reverse” sexual harassment ), and disability (including “association” discrimination). Marc has successfully represented employees who have received notice of proposed removal and employees who have claims before the Equal Employment Opportunity Commission and the Merit Systems Protection Board.
Marc has handled cases representing employees of the following federal Agencies:
Department of Health and Human Services, including the Center for Disease Control;
Department of Treasury/Internal Revenue Service/United States Mint;
US Forest Service;
Department of Navy;
Department of Army;
US Patent and Trademark Office;
Department of Energy;
Department of Homeland Security (including the Secret Service);
Department of Transportation/United States Coast Guard;
Department of Commerce; and
Department of Agriculture.