Employment Tips for Maryland Businesses—The Availability of Sick Leave

By Jamie Kent Hamelburg

Even though sick leave is a customary benefit, no law requires Maryland businesses to offer sick leave -- paid or unpaid--to their employees.  However, employers that do in fact offer paid sick leave (or any other form of paid leave) have certain obligations under Maryland law.  [We intend to address the law in Virginia and Maryland in a forthcoming blog.]

The Maryland Flexible Leave Act (the “MFLA,” which was enacted in 2008 and clarified in 2009) entitles employees who have any type of accrued leave (for example, vacation, sick, paid time off, personal days or compensatory overtime), to use the leave to take time off to care for any member of their immediate family who is ill.  Note that this law applies only to employers with 15 or more employees.  Also note that this law does not require employers to offer sick leave.  However, if a covered employer offers any type of leave, then it must allow its employees to use that leave to care for members of their immediate family.  “Immediate family members” includes a child, parent or spouse. 

If an employee has more than one type of paid leave, the employee has the right to elect the type and amount of accrued and unused leave.  And employers may not discharge or in any way discriminate against an employee for taking leave authorized by the MFLA.

The "take-away" for employers is that the general rule in Maryland is that neither sick leave nor any other type of "leave" is a mandatory benefit, but if it is offered, then employers must follow the guidelines set forth in the MFLA.

Employment Tips for Maryland Businesses—What It Means To Be An Employer “At Will”

By Jamie Kent Hamelburg

Since Maryland is an “employment at will” state, many employers think they can terminate employees at any time and for any reason at all.  While this is true generally, there are two important exceptions. 

The first exception is when the employer and employee agree in advance that the employee will be employed for a set time period.  For example, if the parties agree that the employee will work for a two-year time-period, then the employer cannot terminate the contract at its will but can terminate for cause – although to be safe, that should expressly be part of the original agreement and it would be best if the agreement is in a writing signed by, at least, the employee.

The second exception is that an employer cannot terminate an employee on the basis that the employee has done something that is a protected right, or for a reason that is in clear violation of public policy.  Examples of activities that will not prove a legally sufficient reason for discharging an employee include reporting a criminal activity to law enforcement, refusing to submit to a polygraph examination, refusing to engage in sexual activity and filing a worker’s compensation claim.  And employers cannot discharge an employee based on categories such as race, color, gender, national origin, religion, age, disability or marital status. 

The general rule in Maryland, then, is that in absence of an express contract, agreement or policy to the contrary, an employee may be hired or fired for almost any reason, or for no reason at all.  Before terminating an employee, an employer should look carefully at any agreement it has with the employee that might set a term of years for the employment, and should make sure that its reasons for the termination do not violate public policy.  [We intend to address the law in Virginia and D.C. in a forthcoming blog.]

Employers Must Provide ACA Notifications By October 1

By Jamie Kent Hamelburg

If you’re an employer, you may be required by the Affordable Care Act (the “ACA”) to notify your employees by October 1, 2013, about the new Health Insurance Marketplace established under the ACA.  The new notification requirement applies to you if you are subject to the Fair Labor Standards Act, meaning that you employ one or more employees who are engaged in, or produce goods for, interstate commerce with generally over $500,000 in annual business. Additionally, the Fair Labor Standards Act applies, no matter the amount of business, to institutions primarily engaged in the care of the sick, the aged, mentally ill, or disabled who reside on the premises; schools for children who are mentally or physically disabled or gifted; preschools, elementary and secondary schools, and institutions of higher education; and federal, state and local government agencies. 

The notice should inform employees:

·         about the Health Insurance Marketplace;

·         that, depending on their income and what coverage may be offered by the employer, they may be able to get lower cost private insurance in the Marketplace; and

·         that if they buy insurance through the Marketplace, they may lose the employer contribution (if any) to their health benefits.

The U.S. Department of Labor has issued two model notices to help employers comply.  One model applies to employers who do not offer a health plan, and the other applies to employers who do offer a plan. The models are at:

·         Model Notice for employers who offer a health plan

·         Model Notice for employers who do not offer a health plan

If you are subject to the Fair Labor Standards Act, you should provide the notice to all of your current employees by October 1, 2013, and to all new employees hired after that date. For assistance as to your responsibilities to send out the written notices, consult with your Human Resources adviser, employee benefits professional, or attorney. A Department of Labor Bulletin titled Technical Release No. 2013-2 also provides helpful information.

Not Necessarily Needing A Lawyer

By Jamie Kent Hamelburg

Do you need a lawyer to draft a lease?  My answer might surprise you.  In Montgomery County, Maryland, you might be able to adopt a do-it-yourself approach – at least for drafting a residential lease.

The Montgomery County Maryland Commission on Landlord and Tenant Affairs has a model lease for residential tenancies.   The Commission, which is part of the Department of Housing and Community Affairs, combed through the laws dealing with residential tenancies in the State of Maryland and Montgomery County, and crafted a model lease for renting apartments and condominiums.  The lease is available online and at no cost at http://www6.montgomerycountymd.gov/content/dhca/housing/landlord_t/pdf/single%20family%20dwelling%20lease-2005.pdf, and a Commission-approved model lease for single family dwellings also is online at http://www6.montgomerycountymd.gov/content/dhca/housing/landlord_t/pdf/single%20family%20dwelling%20lease-2005.pdf.

Do the existence of these online forms mean that a residential landlord in Montgomery County doesn’t need legal advice?  Not at all.

Since the Cities of Gaithersburg, Rockville and Takoma Park have their own rules on residential leases, the model Montgomery County lease should not be used in those areas.  Additionally, while the model lease is a great resource in terms of documenting the relationship between a landlord and tenant, either party might need assistance in negotiating the major terms such as dates for possession and the bifurcation of other landlord obligations and rights and tenant obligations and rights.  And some lease provisions, such as those involving the collection, accounting and treatment of security deposits, might not be readily understood by a new landlord.  Finally, there are certain required provisions that cannot be modified or deleted and if they are, a landlord can find itself in hot water with the Commission.  And, of course, perhaps most important, when a party to the lease breaks, or “breaches,” a lease provision, an attorney can help to enforce the lease by, for example, writing a demand letter to collect amounts owed or prosecuting an eviction action.

A commercial lease also is a different story.  Commercial leases are not regulated and vary significantly from landlord to landlord in terms of length and content.  Since commercial lease terms can be the subject of extensive negotiations between the parties, an attorney can provide meaningful assistance in advocating for specific items that will protect a party’s interest.  Unless a commercial landlord has a tried-and-true lease it has used successfully with a number of tenants, a wise landlord will seek the assistance of counsel.  Similarly, a commercial tenant will best be represented by someone who is expert in lease matters.

Of course, a novice landlord may ask, “What about online services like legalzoom.com or rocketlawyer.com?  While they can provide basic generic forms, there is no expert advice tailored to your particular transaction that comes with the form.  The advice is what is critical and the lack thereof is what typically leads to trouble down the road.

The final word--while the owner of residential property in Montgomery County can, with assurance, use the online model form, landlords outside of that area (and those in Gaithersburg, Rockville and Takoma Park), and all commercial landlords, should seek competent legal advice when drafting a lease.   And for those who don’t, is the lawyer’s lament, “You can pay me now or pay me later,” because keeping a client out of trouble is much easier than getting a client out of trouble.