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Recent Blog Posts
Proving that sexual harassment is 'unwelcome' can put victims' conduct on trial
In 1986, the Supreme Court issued a landmark ruling in the history of American sexual harassment law. In Meritor Savings Bank v. Vinson, the Court ruled for the first time that when workplace sexual harassment creates a "hostile work environment," it is a form of illegal employment discrimination under federal law.
Only 'unwelcome' sexual harassment is against the law
But the Meritor decision also introduced a term that has challenged plaintiffs in sexual harassment lawsuits ever since. In order for sexual harassment to be illegal, it has to be "unwelcome." In many cases, this puts the plaintiff's behavior in the spotlight, particularly if she is a woman. Questions that the defendant might pose include:
- What kind of clothes did the plaintiff wear to work? Did she wear low-cut tops and short skirts?
- Did the plaintiff clearly tell the perpetrator that they did not want to be harassed every time it happened?
Answering Questions About Telework
The Americans with Disabilities Act (ADA) provides disabled Americans the ability to request reasonable accommodations in the workplace. For many Americans suffering from any number of disabling conditions, telework may offer them the solution they need to be able to balance their job and their disabilities.
Before someone requests telework for themselves, they may have questions about reasonable accommodation. With the right information, you may be able to gain the accommodation that you need, so here are a few answers that you might be looking for to with your telework pursuit:
Who qualifies for telework?
According to the ADA, any employer who has 15 or more employees must provide reasonable accommodation. Telework can qualify as a reasonable accommodation, which means that anyone employed by a large enough employer qualifies for telework if their position can allow it.
How can I apply for telework?
Each employer often has its own policies on how to go about applying for telework, but there are some things everyone should know about the process. When making your case to HR, it is often advantageous to appeal to their sense of business rather than personal need. Additionally, make sure that any agreement you come to is confirmed in a written agreement.
Can employers impose vaccine mandates?
With the rise of the Delta variant, COVID-19 continues to pose a threat to the nation's workplaces. As a result, employers concerned about their employees' health and their legal liabilities have largely looked to state and federal authorities for guidance.
The Centers for Disease Control (CDC) maintain that the best ways to prevent the spread of the virus are to get vaccinated and wear masks in shared indoor environments, such as schools or offices. This guidance comes even as many people remain skeptical of the available vaccines. As a result, people on both sides of the vaccine debate have started to ask: Can employers require their employees to get vaccinated?
Yes, employers can require employees to get vaccinated.
At this time, employees in Maryland and Virginia are not legally mandated to get vaccinated. Neither the states nor the federal government have passed laws forcing workers to get vaccinated. However, according to the information posted by their Departments of Health, both states defer to the workplace guidance provided by the U.S. Equal Employment Opportunity Commission (EEOC).
Virginia Raises Minimum Wage
Beginning on May 1, 2021, Virginia's minimum wage rate will rise to $9.50 an hour. The current minimum wage rate in Virginia is $7.25 an hour. Under a law passed last year by the Virginia General Assembly, the minimum wage will gradually increase to $12 an hour by January 1, 2023. Virginia employers must act immediately to comply with the new wage law. All employees are entitled to earn at least the minimum wage rate.
Please contact our firm immediately if your employer has failed to pay you at an hourly rate equal to or greater than the minimum wage.
PPP Whistleblowers & Retaliation
Freedman Law, LLC represents employees who have been wrongfully terminated from their jobs, including many different types of whistleblowers. Recently, there has been an uptick in whistleblower claims related to the Paycheck Protection Program ("PPP"). The PPP is a federal government program administered by the U.S. Small Business Administration for the purpose of issuing loans to help businesses keep their workforce employed during the Coronavirus pandemic. The loans were meant for businesses facing hardships because of the pandemic. Unfortunately, some businesses and individuals took advantage of the "free money" and sought to obtain funds fraudulently taking advantage of the speed at which the program was rolled out. The Department of Justice has been cracking down on individuals that fraudulently obtained PPP money. See https://www.justice.gov/opa/pr/six-charged-connection-3-million-paycheck-protection-program-fraud-scheme.
Managing Partner Named Maryland & D.C. Super Lawyer Rising Star
We are proud and honored to announce that Lindsay A. Freedman, Esq. has once again been named as a Super Lawyers Rising Star in both Maryland and Washington D.C. Mr. Freedman is the founder and managing partner of Freedman Law, LLC.
D.C. Passes Ban on Non-Competes
On January 11, 2021, Mayor Muriel Bowser signed the Ban on Non-Compete Agreements Amendment Act of 2020. The Act bans the use of non-competes by employers in the District of Columbia, except for a few narrow exceptions related to medical specialists. Although signed by the Mayor, the Act will not go into effect until the conclusion of a 30-day Congressional review. Experts do not anticipate Congress will block the legislation from becoming law.
The new ban would be the strongest prohibition to-date against non-competes in the D.C., Maryland and Virginia region. Maryland law currently prohibits non-completes for workers earning less than $15 an hour or $31,200 a year.
Scope of the Non-Compete Ban
The Act is a broad prohibition against non-competes, and states that "[n]o employer may require or request that an employee sign an agreement that includes a non-compete provision." Any such non-compete provision entered into on or after the date upon which the Act becomes law is void as a matter of law and therefore unenforceable. Moreover, D.C. employers cannot enact a workplace policy that prohibits an employee from being employed by another person, performing work or providing services to another person, or operating their own business.
Reasonable Accommodations on the Job: Can I request telework? Reassignment?
As companies continue to navigate this pandemic, now more than ever employees must understand their rights as it relates to disabilities and medical conditions.
Under the Americans with Disabilities Act ("ADA"), an employee suffering from a disability can request what are called, "reasonable accommodations." Reasonable accommodations are essentially job modifications that will allow an employee to better perform the job (in relation to their disability). The question becomes what makes an accommodation reasonable, and what specifically can an employee request of their employer under the law?
The ADA defines "reasonable accommodation" as one that "may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies... and other similar accommodations...." 42 U.S.C. § 12111(9). Reasonable accommodations can be as simple as a request for an ergonomic chair or modified hours to attend doctor's appointments. Once an accommodation request is made, the employer must respond and engage the employee in an attempt to reach a workable solution for the disabled employee (i.e. the "interactive process"). In determining what is a reasonable accommodation under the specific circumstances, businesses generally are not required to exempt employees from "essential functions" of their job or accept lesser work quality. It is often a fact specific inquiry whether a proposed accommodation is reasonable given the specific duties of the employee. Employers will point to a job description and their prior work directions to establish essential functions of the job. It is important to note that an employer only needs to provide a reasonable accommodation, and not the exact accommodation requested by the employee.
Vaccines in the Workplace
On November 20, 2020, the U.S. Food and Drug Administration announced a December 10th meeting to discuss the emergency use of a COVID-19 vaccine from Pfizer, Inc. and BioNTech. Vaccines from Moderna and AstraZeneca may also soon be available. The vaccines raise new questions about how employers should proceed and seek to protect its workforce.
COVID-19 and the Americans with Disabilities Act
In ordinary times, conscientious employers are loathe to make disability-related inquiries or require medical exams of their employees unless truly job related and consistent with business necessity. Normally before seeking this information, an employer must have objective evidence that a medical condition will impair the employee's ability to perform the essential functions of the job, or that the employee will pose a "direct threat." However, in March 2020, the Equality Employment Opportunity Commission took the position that the COVID-19 pandemic meets the standard of "direct threat" to the health and safety of the workforce. As such, employers may now perform body temperature checks and request COVID-19 screens to protect its workforce.
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