The Employment Brief

The Genetic Information Nondiscrimination Act (GINA), 42 U.S.C. § 2000ff, was enacted in 2008 to prevent discrimination on the basis of genetic information in employment and health insurance.  Title I of the Act focuses on issues in health insurance, and is administered by several federal Departments, while Title II prohibits employers from using genetic information in employment decision-making and is administered by the Equal Employment...

In Coleman v. Maryland Court of Appeals, 626 F.3d 187 (4th Cir. 2010), the Fourth Circuit joined five other appellate courts in holding that the self-care provision of the Family and Medical Leave Act, does not apply to the states because Congress did not properly abrogate the states’ Eleventh Amendment immunity.  Despite the lack of any apparent Circuit split on the issue, the Supreme Court granted Coleman’s petition for a writ of certiorari to...

Over the past year, the “card check” legislation ironically known as the Employee Free Choice Act (“EFCA”) has garnered a lot of attention.  With large Democratic majorities in both chambers of Congress and a liberal Democrat in the White House, it seemed only a matter of time until organized labor received a payoff for its nearly $10 million dollar investment in President Obama and EFCA became law. Now, as EFCA languishes in the Senate...

Mixed-motive theory was legislated into Title VII with the 1991 Civil Rights Act.  The theory provides that an employee may prevail in a case in which she demonstrates that illegal considerations were “a motivating factor” in the adverse employment decision, even where the employer would have made the same decision absent the illegal considerations. There is no similar provision under the FMLA (or any other anti-discrimination law for that...

As employers try to navigate the economic downturn, companies are increasingly turning to temporary furloughs to save labor costs.  When furloughing employees, employers require staff to use accrued leave or take unpaid time off.  However, if not done properly, this practice could result in employers converting otherwise exempt employees into non-exempt staff who become entitled to overtime under the Fair Labor Standards Act and its state law...

On October 1, 2008, Maryland’s Flexible Leave Act (“MFLA”) went into effect.  The law, which applies to employers with 15 or more employees, requires businesses that provide employees with any form of paid leave to permit employees to use such leave for the illness of an immediate family member. The original version of the MFLA left many questions unanswered. For example, neither "illness" nor "immediate family member" was defined in the law....

On January 29, 2009, President Obama signed the Lily Ledbetter Fair Pay Act.  The legislation, which is the first law signed by the new President, amends federal civil rights laws to provide that a claim of discriminatory compensation must be filed within no more than 300 days of the date on which the employee receives a paycheck or other benefit check (such as a pension check) affected by a discriminatory decision.  The law reverses the Supreme...

On October 1, 2008, Maryland's recently enacted "Flexible Leave Act" goes into effect.  The law, which applies to employers with 15 or more employees, requires businesses that provide employees with any form of paid leave to permit employees to use such leave for the illness of an immediate family member. The new law will likely require most Maryland employers to revise their leave policies.  Employees must be given the option of using any type of...

Some members of the plaintiff’s bar characterize the creation of a private cause of action under Article 49B as a “leveling of the playing field” after years of fighting for respect in the federal courts.  Not surprisingly, I suspect, I have a different take.  “Employer friendly” decisions from the federal courts often come about because of the quality (or the lack of quality) of the case brought.  The notion that  Maryland’s courts...

On April 24, 2008, Governor O’Malley signed into law Senate Bill 797.  This emergency legislation, which was drafted by the author and takes effect immediately, returns to Maryland employers to right to have a written policy which determines whether or not unused leave time must be paid to a departing employee.   The legislation reverses the effects of a 2007 unpublished court decision and subsequent change in policy by the Maryland Department...