maryland state bar association 3 fall 2014 newsletter · “ban-the-box” referring to the box...

MARYLAND STATE BAR ASSOCIATIONSECTION OF LABOR AND EMPLOYMENT LAWNEWSLETTER

Section Officers:

Jonathan R. Krasnoff, ChairDarryl G. McCallum, Chair-ElectKeith J. Zimmerman, Recording Secretary

Volume XIX, Number 3Fall 2014

Albert W. Palewicz, Editor

FROM THE CHAIR

By Jonathan R. Krasnoff

EDITOR'S CORNER

By Albert Palewicz

(continued on page 2)

I am pleased to assume the leadership of the Section from Jonathan Krasnoff, who did a tremendous job as Chair. As to upcoming events, our Section is co-sponsoring an important Program entitled: “Working for Equality:

A Celebration of the 50th Anniversary of Title VII of the Civ-il Rights Act of 1964.” This Program will take place at the University of Maryland Francis King Carey School of Law, located at 500 W. Baltimore Street, Baltimore, MD 21201, on Friday October 10, 2014. The Program begins at 3:00 p.m. with panel discussions about various aspects of Title VII and the role it plays in our society. The substantive areas that will be discussed include the EEOC’s Guidance on the Use of Arrest and Conviction Records in Hiring as well as Title VII’s applicability to cases involving sexual orientation discrimination. At 6:00 p.m., there will be a reception featur-ing the Honorable Robert M. Bell of the Maryland Court of Appeals (Ret.) as the Keynote Speaker. This is a wonderful opportunity to learn about “hot topics” in employment dis-crimination law and to hear from the former Chief Judge of the Maryland Court of Appeals who has participated in many of the key cases that have shaped Maryland’s legal landscape in the employment area.

This past June, the Section presented a program at the Annual Meeting of the Maryland State Bar Association in Ocean City entitled “Let’s Make it Work: Accommodating Religion and Disabilities in Today’s Workplace.” Participants on the panel included the Honorable Alexander Williams, Jr. (Ret.), for-mer Senior Judge for the U.S. District Court for the District of Maryland, Robin Cockey, Esq., from Cockey, Brennan and Maloney and Teresa Teare, Esq., from Shawe Rosenthal, LLP. The Program was well attended and well received, as each panel participant gave their perspective on recent devel-opments regarding an employer’s obligation to provide rea-sonable accommodations for employees with disabilities as well as employees with sincerely-held religious beliefs.

Stay tuned for additional information regarding upcoming

This edition of the Newsletter deals with some very interesting and often disputed areas of em-ployment law. (What areas of employment law are not often disputed.) In any event, the articles

here by attorneys from Semmes in Baltimore, with Don Burke as coordinator, include material on obesity, criminal background checks, the collectability of overtime wages in Maryland, along with other topics. Also included is a quick summary of developments at the 2014 Maryland General Assembly session.

Our next issue will be put together by the attorneys at Miles & Stockbridge in Baltimore, with Marc Sloane as coordinator.

As we begin the new term of the Section Council, you will note in Darryl’s Chair article several upcoming events that should be of significant interest. A list of the full council will be included in the next issue of the newsletter.

Again, I note that any group wishing to sponsor an issue of the newsletter need only let me know of their interest, and they will be given a quick opportunity to present their mate-rial to the Section membership.

FALL 2014Maryland State Bar Association

FROM THE CHAIR (continued) ARTICLES

Baltimore City Passes "Ban the Box" Legislation

By Donald F. Burke

CLE programs this Fall and early next year. The Section is com-mitted to providing a broad range of educational opportunities for both experienced practitioners and those who are new to the field of labor and employment law. If you have any ideas for future topics of interest, please feel free to contact me at [email protected]. Finally, special thanks to Al Palewicz for his continued and tireless dedication to producing our Section newsletter. On May 15, 2014, Mayor Stephanie Rawlings-Blake

signed “Ban-the-Box” legislation passed by a ten to four vote in city council a month earlier. Termed “Ban-the-Box” referring to the box ex-offenders

must check on employment applications, the legislation prohibits Baltimore City employers with ten or more full-time or full-time equivalent employees from eliciting information about an appli-cant’s criminal record until a conditional offer of employment has been made. Specifically, the legislation prohibits such employers from requiring an applicant to divulge if he has a criminal record or has had any criminal accusations brought against him. The legislation also prohibits employers from making any inquiry into the applicant’s criminal history or conducting a criminal-record check on the applicant. However, after making a conditional offer of employment, an employer is free to conduct a criminal back-ground check or to request such information from the applicant.

The law provides two exceptions under which certain employ-ers may keep the “box” on applications. First, the law allows criminal background checks where it is mandated by another law, whether federal, state, or local. Next, it allows facilities serving minors or vulnerable adults to engage in criminal background checks in the hiring process.

As a means to enforce the law, the legislation goes so far as to im-pose criminal penalties on any person who violates any provision of the law. A violation is considered a misdemeanor subjecting the violator to a fine of not more than five hundred ($500.00) dol-lars or imprisonment for not more than ninety (90) days or both. In addition to imposing criminal penalties, the bill also provides several avenues of remedy for an “injured” applicant. An appli-cant may file a complaint with the Baltimore Community Rela-tions Commission, which may award back-pay for lost wages caused by the violation, reinstatement, compensatory damages, and reasonable attorneys’ fees. Additionally, the law allows an aggrieved party to seek judicial review by petition to the Cir-cuit Court for Baltimore City, and to further appeal to the Court of Special Appeals. Should an aggrieved applicant seek any of these remedies, the law prohibits an employer from retaliating or discriminating against the applicant.

This Maryland State Bar Association Newsletter is not intended to provide legal advice, but rather to provide in-formation concerning recent developments in the field of labor and employment law. Questions concerning individual problems or claims should be addressed to legal counsel. Any opinions expressed herein are solely those of the authors, and are not those of the Maryland State Bar Association. Fi-nally, the articles contained herein are copyrighted, all rights reserved by the respective authors and/or their law firms, companies or organizations.


Sponsored by Councilman Nick Mosby, the bill marks an effort to remedy some of the employment issues that currently plague potential hiring of employees in the City of Baltimore. Advo-cates contend that the bill will help decrease both unemployment and recidivism rates by allowing ex-offenders a fair chance at higher-paying employment opportunities. Supporters of the bill posit that access to a “good job” can make the difference between an ex-offender re-offending or becoming a contributing member of the community. Others look to the legislation as a vehicle through which Baltimore can replenish its economy and employ-ment rates.

As of March 2014, the estimated unemployment in Baltimore City reached twenty-two thousand (22,000). Advocates believe that the new law, in conjunction with large revenue-generating projects soon coming to Baltimore, could be the key to lower-ing the unemployment rate and recharging Baltimore City’s economy. Advocates look with a hopeful glance to the upcoming projects in Baltimore including the Amazon warehouse project, which is estimated to employ one thousand and three hundred (1,300) people, and the Harbor Point waterfront development, estimated to cost nearly two million ($2,000,000.00) dollars.

Although fueled by many admirable policy goals, the legislation has met staunch opposition from other members of the Baltimore City community. The business community within Baltimore City has expressed heightened concern that the law will force businesses to hire outside Baltimore City as a result of the new requirements and criminal penalties. In particular, the Greater Baltimore Committee claimed that the new law will add another business regulation to the detriment of economic growth and private-sector job creation in Baltimore City.

More than anything, there is outrage within the business com-munity in reaction to the civil and criminal penalties that the law imposes. Not only do opponents argue that the penalties are unnecessarily harsh, but they also fear arbitrary enforcement. As it stands, employers have access to various tools to check an applicant’s criminal background, including Maryland Judiciary Case Search. The law fails to indicate how it will be enforced

and implemented to produce consistent and fair outcomes. For instance, an employer that prints out a criminal record in view of an applicant may be penalized, whereas a different employer who logs on to Maryland Judiciary Case Search will not.

Further, opponents of the law posit that all of the regulations and threats of penalties are in vain as the prejudice the law seeks to avoid is not fully erased. After making a conditional offer, an employer is free to conduct a criminal background check on the applicant. The law neither prohibits an employer from accessing the records after the interview, nor does it require an employer to hire the applicant. Thus, if the business to which the appli-cant applied is an inappropriate match for the applicant, such as a bank for an applicant previously charged with theft, the law wasted the time and resources of all parties involved. In other words, it is requiring Baltimore City businesses to jump through hoops for naught.

Opponents also point to Maryland’s version of the “Ban-the-Box” legislation, passed just last year, to further underscore the harsh-ness of the Baltimore City legislation. Just last year, Maryland’s General Assembly passed similar “Ban-the-Box” legislation with application only to state employees in certain circumstances. The state law provided for more exceptions, as it recognized the importance of background checks in certain occupations, such as the Office of the Sheriff. The state law also prohibited em-ployers from inquiring into the criminal record or criminal his-tory of an applicant for employment until the applicant has been provided an opportunity for an interview, yet it is silent as to the employer’s ability to conduct a criminal-record check on the ap-plicant. Unlike the Baltimore City legislation, the state law fails to impose criminal penalties. Thus, the seemingly less stringent state law fuels the opponents’ fire even more, as they argue that the City ordinance is too restrictive and provides for arbitrarily harsh penalties.

Author's Note: Attribution along with our thanks is extended to Sarah Grago for her invaluable assistance in the preparation of this article.


Disability Discrimination on the Basis of Obesity

By Christina Bolmarcich

I n June 2013, the American Medical Association officially recognized obesity as a “disease,” rather than a mere con-dition or disorder. While American courts have generally rejected claims of obesity as a disability in the past, in the

last couple years, a new trend has begun to emerge. Congress, courts, and the Equal Employment Opportunity Commission have recently expanded the definition of “disability” under the Americans with Disabilities Act, and as obesity rates continue to increase, the number of disability discrimination lawsuits on the basis of obesity will likely follow suit.

Obesity in the United StatesObesity is a serious epidemic in the United States. The results of a 2011-2012 Centers for Disease Control and Prevention (CDC) study indicate that an estimated 69 percent of U.S. adults are ei-ther overweight or obese. The CDC considers an adult who has a Body Mass Index (BMI) between 25 and 29.9 as overweight, and any adult who has a BMI of 30 or higher as obese. For adults 20 years and older, BMI is calculated by dividing weight in pounds by height in inches squared and multiplying by a conversion fac-tor of 703.

Obesity in the LawFew laws explicitly prohibit discrimination based on weight, and there is no federal law that prohibits obesity discrimination. At the state level, only Michigan law explicitly prohibits employ-ment discrimination on the basis of weight, while Washington D.C. law prohibits employment discrimination on the basis of “personal appearance,” which could include weight. At the local level, only five (5) cities have local ordinances that that prohibit discrimination based on weight (San Francisco, California; Santa Cruz, California; Binghamton, New York; Urbana, Illinois; and Madison, Wisconsin). As a result, plaintiffs have brought claims under the Americans with Disabilities Act (“ADA”) with varying degrees of success. While courts have generally rejected claims of obesity as a disability under the ADA as originally enacted, courts are beginning to reassess that view in light of the ADA Amendments Act (“ADAAA”), which became effective January 1, 2009.

The ADA/ADAAAThe Americans with Disabilities Act, 42 U.S.C. §12101, which was passed in 1990, prohibits discrimination based on disabil-ity and requires that employers provide reasonable accommoda-tions in the workplace to a qualified individual with a disabil-

ity. The ADA was amended by the Americans with Disabilities Act Amendment Act (“ADAAA”), effective January 1, 2009, to greatly expand the coverage of the ADA.

Under the ADA, as amended by the ADAAA, a disability is: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impair-ment.” The ADAAA details a nonexhaustive list of what consti-tutes a major life activity, stating that in general such activities are, but not limited to, “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lift-ing, bending, speaking, breathing, learning, reading, concentrat-ing, thinking, communicating, and working.” Further, under the ADAAA, bodily function limitations are now considered a major life activity.

The ADAAA further increased the likelihood that obesity would be considered a covered disability by eliminating the require-ment that an individual show that they are actually “disabled” in order to prevail under the “regarded as” disabled prong. Thus, a plaintiff now might be considered disabled due to obesity under the ADA solely on the basis that their employer perceived their weight as an impairment.

The EEOC’s PositionIn the regulations implementing the ADAAA, the Equal Employ-ment Opportunity Commission (“EEOC”) states that, while body weight within a “normal” range is not generally considered an impairment, body weight that falls outside a normal range, or body weight that is the result of a physiological disorder (such as a thyroid condition) can be an impairment under the law. The question then is whether the impairment, be it abnormal weight or a condition causing abnormal weight, substantially limits a major life activity or a major bodily function - an assessment that is made on an individualized, case-by-case, basis. Additionally, EEOC’s Compliance Manual, often heavily relied upon by the courts, states that while being overweight is not an impairment by itself, “severe obesity, which has been defined as body weight more than 100 percent over the norm, is clearly an impairment.”

Since the ADAAA took effect, the EEOC has made its position that obesity may be a covered disability clear by bringing two lawsuits involving morbid obesity as a disability. The first was against Resources for Human Development in September 2010 (EEOC v. Resources for Human Development, E.D. La., No. 2:10-cv-03322, complaint filed Sept. 30, 2010), and the second was against BAE Systems in September 2011 (EEOC v. BAE Systems Inc., S.D. Tex., No. 4:11-cv-3497, complaint filed Sept. 27, 2011). The EEOC secured consent decrees in both cases that provided monetary relief for the charging parties and imposed


training and reporting obligations on the companies. In addition, prior to settlement in the Resources for Human Development case, the U.S. District Court for the Eastern District of Louisiana denied the employer’s motion for summary judgment, conclud-ing that the EEOC guidelines and the ADA provide that “if a charging party’s weight is outside the normal range - that is, if the charging party is severely obese - there is no explicit requirement that obesity be based on a physiological impairment.”

Several Courts Follow the EEOC’s LeadCourts in Mississippi, Missouri, and Montana have followed the EEOC’s lead and effectively eliminated the requirement that obesity be caused by a physiological disorder in order for it to be covered under the ADA. In Lowe v. Am. Eurocopter, LLC, 1:10CV24-A-D, 2010 WL 5232523 (N.D. Miss. Dec. 16, 2010), the U.S. District Court for the Northern District of Mississippi de-nied an employer’s motion to dismiss its former employee’s ADA claim, concluding that “[b]ased on the substantial expansion of the ADA by the ADAAA, Defendant’s assertion that Plaintiff’s weight cannot be considered a disability is misplaced.”

In BNSF Railway Co. v. Feit, 365 Mont. 359 (2012), the Supreme Court of Montana reached a similar conclusion under the Mon-tana Human Rights Act, which is analogous to the ADA, holding that: ‘‘[o]besity that is not the symptom of a physiological dis-order or condition may constitute a ‘physical or mental impair-ment’ within the meaning of [the Montana Human Rights Act] if the individual’s weight is outside ‘normal range’ and affects ‘one or more body systems’ as defined in 29 C.F.R. § 1630.2(h)(1).’’

Most recently, in Whittaker v. Am.’s Car-Mart, Inc., 1:13CV108 SNLJ, 2014 WL 1648816 (E.D. Mo. Apr. 24, 2014), the U.S. District Court for the Eastern District of Missouri denied an em-ployer’s motion for summary judgment on an employee’s ADA claim, stating that the employer relied on outdated pre-ADAAA caselaw in arguing that its former employee’s obesity is not a dis-ability under the ADA.

However, this trend has not been entirely uniform in all jurisdic-tions. In Lescoe v. Pa. Dept. of Corrections, 464 F. App’x 50, 2012 WL 505896 (3rd Cir. 2012), the Third Circuit affirmed summary judgment in the employer’s favor while failing to ad-dress the ADAAA or the EEOC’s revised guidelines, noting that the employee “failed to allege that his weight is the result of a physiological disorder, which is imperative in some circuits.”

Moving ForwardThe recent decisions in Montana, Mississippi, Louisiana, and Missouri, while not binding nationwide, may be indicative of how obesity will be viewed in disability discrimination claims in the future. Whether or not courts in other jurisdictions will

continue this trend remains to be seen; however, it is clear that obese employees now have some ammunition in bringing dis-ability discrimination lawsuits against employers. As such, em-ployers should be cognizant that obesity may be considered a “disability” under the ADAAA, and be cautious when making decisions that have a detrimental effect on overweight employ-ees. Employer’s should also utilize the same caution when deal-ing with employees with other less recognized impairments, such as height abnormalities or conduct disorders, as these conditions could be considered disabilities under the expanded scope of the ADAAA as well.

Attribution along with our thanks is extended to Richard J. Medoff for his invaluable assistance in the preparation of this article.


Overtime Wages Are Recoverable Under Maryland Wage Payment

and Collection LawBy Imran O. Shaukat

In Peters v. Early Healthcare Giver, Inc., No. 86 Sept. Term 2013, 2014 WL 3938810 (Md. Aug. 13, 2014), the Court of Appeals of Maryland unanimously held that overtime wages are recoverable under the Maryland Wage Payment

and Collection Law, Md. Code Ann., LAB. AND EMPL. § 3-501 et seq. (1991, 2008 Repl. Vol., 2013 Cum. Supp.) (“WPCL”). By way of factual background, Muriel Peters (“Peters”) worked as a certified nursing assistant for Early Healthcare Giver, Inc. (“EHCG”). Id. at *1. Over the course of her employment, Peters consistently worked 119 hours per two-week pay period, earning a wage of $12 per hour. Id. Peters’s $12 hourly wage included the hours she worked in excess of forty (40) hours per week. Id. Af-ter her departure from EHCG, Peters sued her former employer for wrongfully withholding overtime wages.

Under the plain language of the WPCL, employers are required to pay their employees regularly while employed, and in full at the termination of employment. However, a series of Maryland federal district court cases decided prior to Peters held that the WPCL did not provide a remedy to workers whose employers wrongfully withheld overtime wages. See id. at *3, n. 5. There-fore, the underlying issue in Peters was whether overtime wages constituted recoverable wages under the WPCL.

In addressing this issue, the Court of Appeals of Maryland ana-lyzed the scope of the WPCL by specifically examining a 2010 amendment to the statute, which added “overtime wages” to the enumerated types of wages that must be paid by an employer. The Court, therefore, concluded that the 2010 amendment clari-fied any doubt regarding whether the WPCL is a vehicle for re-covering overtime wages. Id. at *3.

There are three (3) key takeaways from the Peters decision. First,

as a threshold matter, the WPCL is, undoubtedly, a private cause of action by which an employee can seek recovery of unlawfully withheld overtime wages from his or her employer. See id. at *3. Second, a damages award under the WPCL can be enhanced to treble damages (i.e., three times the unpaid wage) assuming no bona fide dispute over the wage claim exists.1 The trial court is required to make a predicate finding of whether the claimed wages were withheld pursuant to a bona fide dispute. Id. (citing Friolo v. Frankel, 373 Md. 501 (2003)). And third, there is no presumption of entitlement to enhanced damages, “even if the court finds that wages were withheld without a bona fide dis-pute.” Id. at 6.

Endnotes:1 A bona fide dispute is “‘a legitimate dispute over the validity of the claim or the amount that is owing [ ]’ where the employer has a good faith basis for refusing an employee’s claims for unpaid wages.” Id. at *4 (citing Admiral Mort., Inc. v. Cooper, 357 Md. 533, 543 (2000).

Recap: 434th Session of the Maryland General Assembly

By Donald F. Burke

In April, the 434th session of the Maryland General Assembly adjourned sine die. This year, Governor Martin O’Malley signed the Minimum Wage Act, which instituted a four (4) year plan to steadily increase the state’s minimum wage to

$10.10 by 2018. The Governor also signed into law a transgender anti-discrimination bill. On October 1, 2014, Maryland will join seventeen (17) other states and the District of Columbia in banning gender identity and expression discrimination.

A. Consistent with the national trend of support for the LGBT community, the Maryland Senate passed, with an 82-57, vote the Fairness for All Marylanders Act of 2014 (SB 212/HB 1265), effective October 1, 2014, which prohibits discrimina-tion based on sexual orientation and sexual identity. The scope of the bill provides protections that go beyond mere sexual orientation, to now include transgender Marylanders who were left out of the 2001 anti-discrimination bill. By broadening the definition of “transgender,” the bill now serves as an umbrella term intended to encompass all instances of gender identity and expression. The new law defines gender in terms of a person’s consistent and sincere expression of sexual identity, as exposed through appearance, expression, and behavior, without regard to biological sex at birth. While employers can, of course, re-


quire employees to wear uniforms, this law allows employees “to appeal, groom, and dress consistent with the employee’s gender identity.”

Opponents to the bill raised concerns that sexual offenders might take advantage of this law, using it to gain access to a bathroom of the opposite sex, or that people may be subjected to embarrass-ing invasions of privacy from transgender people in restrooms or locker rooms. Sen. Jamie B. Raskin (D-Montgomery) responded in an interview to these concerns, explaining that the bill does not apply to private facilities that are designed for people of the same gender to disrobe (i.e., locker rooms).

This law is broader than existing laws and ordinances protecting “transgender” individuals, and supersedes those laws that exist in Baltimore City, Baltimore County, Howard County, Montgomery County, and the City of Hyattsville. Further, the Act bans dis-crimination, not just in the employment sector, but also in housing and places of public accommodations, such as hotels, restaurants, theaters, and sports venues. However, in addition to private clubs, the Act also contains exemptions for religious groups, educational institutions, small businesses, and owner-occupied rentals with five (5) or fewer units.

B. Despite staunch opposition from the Chamber of Commerce and other stakeholders, the Legislature passed the Parental Leave Act (SB 737/HB1026) requiring employers to provide up to six (6) weeks of unpaid parental leave within a twelve (12)-month period for the birth or adoption of a child.

Employers may deny leave if “necessary to prevent substantial and grievous economic injury to the operations of the employer.” Additionally, the employer is required to give the employee notice of the denial prior to commencement of the leave. If paid leave is available, employers may require or employees may elect to substitute the paid leave for all or part of the unpaid parental leave. Further, employers are barred from terminating employees during the parental leave, except for cause. This Act also requires that employers pay out any commissions earned from work performed prior to the leave that become due during the leave period. Em-ployers with fifteen (15) to forty-nine (49) employees are required to offer “Maryland PLA.”

C. The Minimum Wage Act of 2014 (SB 331/HB 295), which mandated the State’s minimum wage to increase to $10.10, was amended to stretch the State’s $2.85 minimum wage increase over a four (4) year period. The first two increases will occur on January 1, 2015 and July 1, 2015, increasing the minimum wage to $8.00 an hour and $8.25 an hour, respectively. Each additional increase to $8.75, $9.25, and $10.10 will occur on July 1 of each year until 2018.

This bill includes a provision that permits a training wage of eighty-five (85) percent of the State’s minimum wage for the first six (6) months for an employee under age twenty (20) and allows the tipped wage credit to be frozen at $3.63.

Counties are permitted to establish their own minimum wage for employees working in that county, so long as the county-specific wage is no less than the State or federal minimum wages (SB 273/ HB 293). Accordingly, Montgomery and Prince George’s Counties adopted their own minimum wage ordinances, which are identical in all respects. These counties have adopted the following schedule of wage increases: effective October 1, 2014, a minimum wage of $8.40 an hour; on October 1, 2015, a minimum wage of $9.55 an hour; on October 1, 2016, a minimum wage of $10.75 an hour; and on October 1, 2017, a minimum wage of $11.50 an hour. However, these ordinances do not apply to an employee who is under the age of nineteen (19) and is employed no more than twenty (20) hours per week.

D. The Workers’ Compensation – Prescription Drugs – Choice of Pharmacy (SB 482/HB 368) bill prohibits an employer or in-surer from requiring a covered employee to go to an employer- or insurer-specified pharmacy to fill a prescription that the employer or insurer is required to provide under workers’ compensation law.

E. Several pieces of legislation dealing with employment related issues were defeated. The Fair Employment Preservation Act of 2014 (SB 688), which sought to change the definition of “su-pervisor” and impose strict liability on employers with hostile work environments in harassment cases, was defeated. Under this Act, “supervisor” would be broadly defined as one who “un-dertakes or recommends tangible employment actions affecting another employee or applicant for employment, including hiring, firing, promoting, demotion and reassigning another employee; or directs, supervises or evaluates the work activities of another employee.”

The Maryland Secure Choice Retirement Savings and Trust Bill (SB 921/HB 1251), which would have mandated employers with five (5) or more employees to partake in a state-run retirement program or provide a retirement program for their employees, was also defeated.

The Maryland Earned Sick and Safe Leave Act (SB 753/HB 968), which aimed to require employers with ten (10) or more employees to provide up to seven (7) days of paid leave and would have required employers with up to nine (9) employees to provide unpaid leave for purposes of illness, health care for the employee or employee’s family members, and in some instances paid time off in situations involving domestic violence, was also defeated.


Roberts v. Montgomery County:When Acquiescence Leads

to Compensability By Jason A. Heller

In Roberts v. Montgomery County, the Court of Appeals of Maryland was asked to consider whether an employee’s disability that arose from an auto accident while traveling to work was compensable under the Maryland Workers’

Compensation Act. The Court held that the “going and coming” rule was not applicable because the Claimant was traveling from two sites incidental to his employment and, but for his travel in between the work-related sites, the Claimant would not have been injured. 436 Md. 591, 607 (2014). The Court’s holding is not, in and of itself, significant. Rather, the Court’s reasoning in support of its holding may have lasting implications with regard to how employer’s manage their employees moving forward.

The Claimant, Thaddus Roberts (“Roberts”), was a firefighter employed by Montgomery County. Id. at 594. At the time of the accident, Roberts was working a “light duty” position for the Montgomery County Fire Department due to a prior work-ers’ compensation claim. Id. at 596. While working light duty, Roberts was assigned to work at Fire Department Headquarters in Rockville, Maryland, rather than Fire Station 19, Roberts’s work site when he was able to perform regular duty work. Id. While working light duty, Roberts was encouraged by Montgomery County to participate in two hours of physical training each shift. Id. Roberts was paid during the two hours and could train at a location of his choice. Id.

In addition to his physical training, Roberts would “stop by” Fire Station 19, approximately once per month, to pick up his work mail. Id. Testimony at the Workers’ Compensation Commission

confirmed that picking up mail from the regular duty work site was a practice routinely performed by firefighters on light duty and was a practice that Roberts’s supervisors were aware of. Id. On the date of the accident, Roberts traveled from Friendly High School, where he engaged in physical training, to Fire Station 19 to pick up his mail prior to reporting to Fire Department Headquarters. Id. at 597. The auto accident occurred on the route between Friendly High School and Fire Station 19. Id.

Roberts filed a claim with the Workers’ Compensation Commission (the “Commission”) alleging that he was injured in an automobile accident while traveling from his physical training location to Fire Station 19. Id. at 595. Montgomery County contested Roberts’s claim alleging that Roberts’s injury did not arise out of and in the course of employment pursuant to MD Ann. Code, Labor and Employment § 9-101. Id. at 598. The Commission disallowed Roberts’s claim finding that he did not sustain an accidental injury arising out of and in the course of his employment. Id. at 599.

Thereafter, Roberts filed a Petition for Judicial Review and Motion for Summary Judgment with the Circuit Court for Montgomery County. Id. Montgomery County filed a Cross-Motion for Sum-mary Judgment alleging that Roberts’s injury did not arise out of and in the course of his employment because he was not traveling between two sites of the Employer’s premises. Id. at 600. Rather, Montgomery County alleged, Roberts was on his way to work and was driving his own vehicle at the time of the accident and therefore, Roberts’s claim was barred under the “going and com-ing” rule. In response, Roberts argued that he was injured going from one work-related duty, physical training, to another work-related duty, checking his work mail at Fire Station 19 which was acquiesced to by Roberts’s supervisors. Id. at 600-601. Roberts further alleged that his injury was compensable because “but for” his work-related duties of physical training and picking up his work mail, he would not have traveled from Friendly High School to Fire Station 19 and thus, would not have been injured. Id. The Circuit Court for Montgomery County granted Montgomery County’s Cross-Motion for Summary Judgment, finding that Roberts was not entitled to workers’ compensation because the injury occurred while he was on his way to work. Id. at 601.

Subsequently, Roberts appealed the Circuit Court’s decision to the Court of Special Appeals of Maryland. The Court of Special Appeals affirmed the Circuit Court’s decision. Id. The Court of Special Appeals reasoned that, although Roberts’s supervisors were aware that Roberts would check his mail at Fire Station 19, neither party presented evidence to demonstrate that checking work-related mail at Fire Station 19 was an official job duty, rather than waiting for the mail to be forwarded to Roberts’s work site, the Fire Department Headquarters. Id. Therefore, the Court of Special Appeals concluded that Roberts was permitted to check

Finally, the Maryland Wage Payment and Collection Law – Awards of Certain Fees and Costs of Prohibition Against Re-taliation (HB 1314), which would have required courts to award attorney’s fees to the employee if the employer withheld wages in violation of the State’s Wage Payment and Collection Law, was also defeated.

Attribution along with our thanks is extended to Morgan Gough for her invaluable assistance in the preparation of this article.


his mail at Fire Station 19 on his own time and at his own risk. Id. Consequently, the Court of Special Appeals affirmed the Circuit Court’s decision and held that Roberts was only “at work” when he was at Fire Department Headquarters and that his accident oc-curred while he was on his way to work. Id.

The Court of Appeals granted certiorari to determine whether the Court of Special Appeals erred in upholding the denial of workers’ compensation benefits and holding that the “going and coming” rule barred Roberts from entitlement to workers’ compensation benefits. Id. at 602. Initially, the Court looked to the definition of accidental injury under MD Ann. Code, Labor and Employment § 9-101(b)(1) which defines accidental injury as that which “arises out of and in the course of employment”. Id. at 604. The Court explained that “arises out of “ relates to the causal connection between the employment and the injury and that “in the course of” refers to the time, place, and circumstances of the accident in relation to the employee’s employment. Id.

Next, the Court looked at the respective arguments of the parties. Roberts argued that the “positional-risk” test should be applied, as was adopted in Mulready v. University Research Corp., 360 Md. 51, 66, 756 .2D 575, 823 (2000). Id. As discussed in Mulready, the test examines whether the injury would have been sustained “but for” the fact that duties incidental to employment placed the employee where the injury occurred. Here, Roberts argued that “but for” his drive from one work site, Friendly High School for physical training, to another work site, Fire Station 19 to pick up his mail, he would not have been injured. Id. at 605.

Conversely, Montgomery County contended that the going and coming rule barred Roberts’s claim. The going and coming rule, detailed in Morris v. Board of Education of Prince George’s County, 339 Md. 374, 379, 663 A.2d 578, 582 (1995), states that injuries sustained by an employee while traveling to and from the employee’s employment site “are generally not considered to arise out of and in the course of employment and are, therefore, not compensable under the Act.” Id. at 606. In the instant matter, Montgomery County argued that Roberts was not at his employ-ment site until he arrived at the Fire Department Headquarters. Id. at 605. Further, Montgomery County stated that Fire Station 19 was not Roberts’s current employment site due to his light duty job restriction. Id. at 606. Consequently, Montgomery County contended that the “going and coming” rule applied as Roberts was traveling to Fire Station 19 and not his work-site, Fire Department Headquarters. Id.

Significantly, the Court disagreed with Montgomery County’s as-sertion that Fire Station 19 was not a work-related site. Id. The Court opined that because Roberts picked up mail left for him at Fire Station 19 and that Roberts’s supervisors were aware that Rob-

erts routinely picked up his mail at Fire Station 19, Montgomery County “acquiesced” to Roberts’s act of picking up mail at Fire Station 19. Id. at 606-607. The Court went on to define acquies-cence as to “give an implied consent...to any act, by one’s mere silence, or without express assent or acknowledgment” pursuant to Osztreicher v. Juanteguy, 338 Md. 528, 534, 659 A.2d 1278, 1281 (1995), quoting Black’s Law Dictionary 22 (5th ed. 1979). Id. at 607. Relying on Montgomery County’s acquiescence, the Court reasoned that Roberts’s accident occurred when he was traveling from a work-related site to another site in which he was to engage in work-related activity to which Montgomery County acquiesced. Therefore, the Court held that the “going and coming rule” was inapplicable and that the positional-risk test applied. Specifically, that “but for” Roberts’s travel incidental to his employment he would not have been injured. As a result, the Court of Appeals concluded that Roberts’s claim was compensable under the Work-ers’ Compensation Act. Id. at 608.

More significant than the holding of the instant case, the Court’s finding that acquiescence equates to sanctioned work activity may produce a long lasting effect on labor and employment law. Rob-erts suggests that if an employer is aware of an employee’s activity and does not explicitly advise the employee that their activity is outside the ambit of his or her employment, then the employer may be implicitly authorizing the activity as a work-related function. Unless employers are proactive in providing explicit boundaries with respect to an employee’s job duties and expectations, workers’ compensation claims that, at one point, failed to meet the standard of an accidental injury arising out of and in the course of employ-ment may now be found compensable under Roberts.


situations is a fair approach, because the employer has a “zero tolerance policy” in place, imposing different punishments makes the employer appear as an “unfair” employer to its employees and the outside world.

“Zero tolerance policies” are supposed to provide the same punish-ment to all employees for violating company rules. Punishment for breaking a “zero tolerance rule” is not supposed to involve any discretion. However, when the violation is not given discretion, it sometimes results in unduly harsh outcomes. However, failing to apply the same punishment to all violators can also result in an employee remaining employed with a company when he should have been fired.

Perhaps the name “zero tolerance” is what is deceiving in the phrase “zero tolerance policy.” This issue can be cured by provid-ing employees with a handbook when they are hired, which advises them of the behaviors that will not be tolerated and that, if a “zero tolerance policy” is violated, the employer reserves the right to discipline the employee appropriately based on the violation that has occurred. Having a handbook that lets employees know that they could be terminated if they break certain rule allows employ-ers to consider extenuating circumstance in certain situations, an employee’s record with the employer, and other factors that could spare an employee from termination.

All in all, “zero tolerance policies” are an effective tool to curbing bad behavior (no one really wants to be fired). However, employ-ers need to make sure that discipline is delivered even-handedly, and that when one employee is punished for bad behavior, the next employee who engages in the same bad behavior receives the same punishment.

Does Zero Tolerance Really Mean Not Tolerated?

By Christina Bolmarcich

We’ve all worked for a business that has had a “zero tolerance” policy against something whether it be banning drug use, alcohol use, theft, harass-ment, being late, violence between coworkers,

discrimination, bullying, etc. But what does “zero tolerance” really mean? Does it mean that a business should fire someone who breaks one of the rules under one of the business’s supposed “zero tolerance” policies? Or, does it mean the business should first be able to consider the value of the employee who broke the zero tolerance rule, and then discipline that employee so the busi-ness does not lose him (i.e. the business does not fire the employee but maybe suspends him or requires him to seek therapy). It all begs the question: When it comes to zero tolerance, does zero real mean “not at all” or does it mean “well, sometimes it’s tolerated…depends on who you are?”

As you can tell, I am not a big fan of calling a policy a “zero toler-ance policy.” To me, zero tolerance means “not tolerated, at all, under any circumstances and you will be fired.” However, in my experience, businesses constantly entertain bad behavior and do not evenly dispense punishment when employees break the com-panies’ “zero tolerance” rules. There are a number of reasons why employees are not equally disciplined: Sometimes it is because the employee generates a lot of income for the business, sometimes it is because the employee has a lot of clients or brings in a lot of clients for the business, sometimes it is the “other guy started it,” and sometimes it is because the employee is also the president or owner of the company and it is just too tough to discipline him. The list of reasons is really never-ending.

“Zero tolerance policies” and their related punishments, when properly applied by businesses, should typically result in termi-nation for a first infraction. The reason why an employee is fired after the first infraction is the need to apply the policies fairly and consistently so that no other later terminated employee can accuse the business of discriminating against him when he is terminated for an infraction for which another employee was only required to go to therapy or suspended without pay for a certain period of time. However, in most situations involving a violation of a “zero tolerance policy,” there are a number of mitigating circumstances that do not warrant immediate termination as a suitable punish-ment. Simply put, firing the employee is not the punishment that fits the “crime” (i.e., not a “crime” according to the criminal code but the breaking of rule under one of the company’s “zero toler-ance” policies). While imposing different punishments in different

maryland state bar association 3 fall 2014 newsletter · “ban-the-box” referring to the box...

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