Author: JGL Law

The Federal Trade Commission (FTC) recently announced a rule that bans non-compete agreements. Non-compete agreements contractually restrict workers from joining or starting a competing business after leaving their employment. These agreements commonly designate how long and where these controls apply. These agreements are used by employers across all sectors of the workforce, the FTC estimates that 30 million workers in the United States are subject to one.

It is anticipated the ban will promote competition, leading to approximately 8,500 new businesses created annually and increasing individual employee earnings by an average of $524 per year.

There are numerous legal concerns with the FTC’s rule. The Supreme Court previously held the FTC does not have jurisdiction over non-profit entities unless they provide substantial economic benefit to their for-profit members. Yet, the FTC said non-profit or tax-exempt status is not dispositive of whether the entity is subject to the ban, which makes application of the ban confusing.

The FTC already faces legal challenges arguing that only Congress can make a rule with such a significant economic impact. The rule as it currently stands will nullify thousands of contracts and may be unconstitutional for exceeding the FTC’s statutorily permitted powers. Pending Supreme Court cases are considering restraining the implicit authority of federal agencies like the FTC, rendering predictions for the outcome of the rule difficult. Ultimately, the Court may strike down the FTC’s rule as an unconstitutional exercise of power. The rule becomes effective around August 20^th, 2024, but is expected to be delayed by legal battles.

The article was written by JGL principal Brian Markovitz and Deborah Jaffe, who is a law clerk at the firm.

In an article published on June 25, 2024 by Physician’s Weekly, Brian Markovitz and Deborah Jaffe explain what the recent FTC ban on noncompete agreements means for healthcare businesses. The article details what the ban will do for competition and business growth, as well as the expected decrease in healthcare costs over the next 10 years. Markovitz and Jaffe also provide context for the ban, including how many employees felt trapped and burned out in their current employment situation.

The article was written by JGL principal Brian Markovitz and Deborah Jaffe, who is a law clerk at firm.

Read the full article, “How Will the FTC Ban on Noncompete Agreements Affect the Healthcare Sector?” in Physician’s Weekly.

In this episode of JGL LAW FOR YOU, attorneys Renee Blocker, Lindsay Parvis, and David Bulitt discuss the ways that Personal Injury and Family Law collide with interesting examples. 

The US State Department and US Embassy in Hanoi sponsored a virtual program about public interest law for a Vietnamese delegation comprised of lawyers, judges and other officials.

JGL’s associate Virginia (Gia) Grimm joined by principal Veronica Nannis shared the basics of the False Claims Act work that JGL provides and tried to highlight topics and aspects of that law that would be most important to a country like Vietnam. They spoke for over an hour and answered audience questions. This delegation will travel to Washington DC in August, when Gia and Veronica hope to meet them personally.

Lindsay Parvis hosts a Lunch & Learn on Mental Health Privilege & Maryland Family Law on June 13th from 12:00-1:15pm via Zoom.

For Mental Health Professionals, Attorneys & Child Counsel Attorneys (especially Child Privilege Attorneys).

This is an informal educational program followed by discussion & shared learning. Continuing the discussion from the Mental Health Privilege blog series.

In an article published on June 5, 2024, by Washington Family Magazine, Erika Jacobsen White provides guidance about the Pregnant Workers Fairness Act (PWFA) for expecting and working mothers. The article details what the PWFA covers, including the process to determine reasonable accommodations for an employee and what conditions qualify for accommodations. White also explains what happens if an employee can’t perform essential job duties while pregnant as well as what happens if an employer refuses to make accommodations or retaliates.

Read the full article, “Pregnant? Your Employer Must Provide Accommodations,” in The Washington Family Magazine. This article also appeared in MetroKids Magazine, an affiliate of The Washington Family.

Mental Health Privilege & Maryland Divorce Blog Law Series – Part 9

FAQ 3 about Waiver of Mental Health Privilege & Maryland Divorce:
How does geography come into play?

This is a juicy question.  Why?  Because it’s not developed in our appellate case law.

Let’s start with what I mean by geography:  where the mental health provider is located.

This is easily an issue when:

• Either
  • A Maryland resident works in or lives near/on the border of DC, Northern VA, WVA, DE, or PATheir mental health provider is located outside of Maryland
  • The provider is not licensed in Maryland
• Or
  • An out of state litigant receives mental health services in their home state

Next, let’s look at what Maryland privilege statutes have to say:

• §9-109 applies to:
  • Psychologists licensed in Maryland
  • Psychiatrist who are licensed but does not say in Maryland
• §9-109.1 applies to:
  • Professional counselors certified, licensed or exempted from licensure under Maryland law
  • Psychiatric-mental health nursing specialists, who may or may not be licensed in Maryland
• §9-121 applies to:
  • Social workers licensed and certified in Maryland

So, where does that leave privilege?

I’m aware of no appellate case law or statute that tells us.  Which leaves logic (which may or may not apply in court).  Logic tells me that if the provider falls into the statutory categories with similar qualifications, then privilege should apply.

How to know?

• A written stipulation agreed to by all parties
• A motion in limine, which can be filed to affirm admissibility of evidence

Definitely a topic that requires thought & strategy, to avoid surprises at trial.

Mental Health Privilege & Maryland Divorce Blog Law Series – Part 8

FAQ 2 about Waiver of Mental Health Privilege & Maryland Divorce:
Is waiver forever?

No.  Davis v. Petito, 187 Md.App. 487 (2011), sheds some light:

• The court may not retroactively revoke privilege
• Privilege may be revoked from “now” and going forward
• Privilege waiver may end when the trial/case concludes, if not revoked before

Helped by In re BL³ (Md.App., No. 703, September Term 2017, Unreported (January 19, 2018);  predates Rule 1-104):

• A signed waiver for one purpose (such as releasing records to CPS) operates as a waiver in the litigation until revoked

Takeaways

• Revoke privilege at the latest when the trial is done / settlement is reached
• Put revocation in writing
• Share the revocation with current mental health providers, so they are aware

Mental Health Privilege & Maryland Divorce Blog Law Series – Part 7

FAQ 1 about Waiver of Mental Health Privilege & Maryland Divorce:
Can I choose who gets my privileged information?

Let’s start with terminology. 

Our appellate courts have used the terms “limited waiver” & “selective waiver” in ways that suggest these are different (but related). 

Here, by “limited waiver” I mean waiver of some, but not all, information or records held by the therapist (In re Matthew R, 113 Md.App. 701 (1997), Ali v. Hart, No. 0458, September 2022 Term, Unreported (December 8, 2022)). 

I use “selective waiver” to mean both 1) to one person but not another and 2) for one court case/purpose but not another (Hamilton v. Verdow, 287 Md. 544 (1980)).

Limited Waiver

Yes, limited waiver is possible, though not clearly developed in the law.  In re Matthew R suggests that a stipulation (so, agreement or acknowledgement) between parties is necessary & recognized waiver of specific, but not all, records. 

Ali v. Hart recognized a BIA’s limited waiver for “relevant information” (without mention of a stipulation).  Relevance is an overarching expectation in legal matters, so it’s not especially instructive.  The open question:  Will the court recognize a waiver limited to one particular topic?

Selective Waiver

Yes, selective waiver is possible, though even less developed in the law than limited waiver.  Per Hamilton v. Verdow, one can waive for one purpose/type of case, but not others.  One cannot, though, waive for one party, but not another similarly situated one in the same or related case.  Which I infer means one can waive for one case & one party, but not another party in an unrelated case.

The Takeaways

• Limited waiver is possible
• Because the law’s not well developed, waive cautiously, ideally with a written stipulation
• Limited waiver allows disclosure of some but not all privileged records and some but not all information
• Make sure the limitations are specific

I. Introduction

The U.S. Department of Treasury’s Financial Crimes Enforcement Network (FINCEN) finalized an updated reporting rule (the Reporting Rule) implementing Section 6403 of the Corporate Transparency Act (CTA) in September of 2022.[1] The Reporting Rule was created, in large part, to combat money laundering by foreign nationals who use shell and front companies to obfuscate their financial gains. The Reporting Rule requires all “reporting companies” to provide detailed information about their “beneficial owners” with the goal of heightened transparency in the United States’ financial system.

The reporting requirements took effect on January 1, 2024 and require qualifying entities to disclose detailed information about their “beneficial owners” and “Company applicants.” Entities that existed prior to January 1, 2024 must file their Beneficial Ownership Information Report (BOIR) by January 1, 2025. Entities created after January 1, 2024 must submit their BOIR within ninety (90) days of creation. However, the Reporting Rule includes broad exceptions, discussed below, which exempt certain companies from its reporting requirements. Failure to provide the required information can result in significant civil and criminal penalties.

II. The Reporting Rule

a. What is a Reporting Company?

A “reporting company” is defined as a corporation, limited liability company, or other similar entity created by filing a document with the Secretary of State of a respective State, or a similar office with a State or Indian Tribe.[2] Entities created in a foreign country and registered to do business in the United States by filing a document with a Secretary of State, or similar office under the laws of a State or Indian Tribe, are also considered “reporting companies” under the Reporting Rule and are subject to its mandate.[3]

b. What entities are exempt from the Reporting Rule?

The Reporting Rule identifies twenty-three (23) exemptions which except certain entities from its reporting requirements. The exemptions are:

1. Security reporting issuers
2. Governmental authorities
3. Banks
4. Credit unions
5. Depository institution holding companies
6. Money services businesses
7. Brokers or dealers in securities
8. Securities exchange or clearing agencies
9. Other Exchange Act registered entities
10. Investment companies or investment advisers
11. Venture capital fund advisers
12. Insurance companies
13. State-licensed insurance producers
14. Commodity Exchange Act registered entities
15. Accounting firms
16. Public utilities
17. Financial market utilities
18. Pooled investment vehicle
19. Tax-exempt entities
20. Entities assisting tax-exempt entities
21. Large operating companies
22. Subsidiaries of certain exempt entities
23. Inactive entities

c. What information do reporting companies have to provide?

Reporting companies must provide the entity’s full legal name, address, jurisdiction of formation, and taxpayer identification number, or foreign equivalent. Reporting companies are also required to disclose the identity of each of its “beneficial owners.” A “beneficial owner” is “any individual who, directly or indirectly, either exercises substantial control over such reporting company or owns or controls at least 25 percent of the ownership interests of” the reporting company.[4]

An individual exercises “substantial control” of a reporting company if they are a senior officer, have authority to appointment or remove a senior officer, directs or has substantial influence over important decisions regarding the business, its reorganization or dissolution, expenditures or investments, termination of business lines, compensation schemes, execution of contracts, or amendments of governing documents.[5] Individuals who own subsidiaries of a “reporting company” can qualify as a “beneficial owner” based on their ownership share and title, and the obligation to comply with the Reporting Rule is not diluted simply because they do not have a direct ownership in a “reporting company.”

An entity must report the full legal name, date of birth, address, and unique identifying number and image of a US passport, state driver’s license, or other eligible identification document for each of its “beneficial owners.” Entities created after January 1, 2024 are required to provide the same information for its “company applicants,” which are the individuals who filed the documents with the Secretary of State, or similar office, in order to create the reporting company.

Reporting companies must also provide their “FinCEN Identifier” if they have one. A FinCEN identifier is a unique number issued to an individual or reporting company upon request. An individual or reporting company is not required to obtain a FinCEN identifier, but if they do, they may only receive one, single FinCEN identifier. Reporting companies must update their BOIR if relevant information changes between reporting periods.

d. Are there penalties for noncompliance?

The Reporting Rule authorizes significant fines for reporting companies who willfully fail to adhere to the Reporting Rule’s requirements, or willfully attempt to provide false or fraudulent information. This includes civil penalties of up to $500 for each day that the violation continues.[6] The Reporting Rule also authorizes criminal penalties including imprisonment for up to two years and/or a fine of up to $10,000. [7]

III. Conclusion

The Reporting Rule requires a broad swath of entities to report the identity of their beneficial owners and authorizes significant fines for entities that fail to do so. While reporting companies that existed prior to January 1, 2024 have until January 1, 2025 to comply with the Reporting Rule, every company who qualifies should file their BOIR as soon as possible to avoid the imposition of criminal and civil penalties.

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[1] 30 C.F.R. Part 1010.380, 2022-21020.pdf (govinfo.gov).

[2] Id. at § 1010.380; 31 U.S.C. § 5336(a)(11).

[3] Supra, note 1 at § 1010.380(c).

[4] Supra, note 1 at § 1010.380(d).

[5] Id. § 1010.380(d)(1-7).

[6] Id. at § 1010.380(g).

[7] Id.

For most people familiar with the Fair Labor Standards Act, 29 U.S.C. 201 et seq., (FLSA), it is about protections for overtime pay, minimum wages, or prohibitions on child labor. Yet, no less important is the 2023 amendment to the FLSA, signed into law by President Biden, the Providing Urgent Maternal Protections for Nursing Mothers Act, simply known as the PUMP Act.

The PUMP Act requires for most employers (essentially all of them with 50 or more employees) that nursing employees be provided reasonable break times and a private place, that isn’t a bathroom, to express breast milk at work. This right extends until one year after the birth of the applicable child.

As this is a relatively new law, numerous questions are being decided by the courts. These questions include: What is a reasonable amount of time to express milk? How many times can an employee take a break to pump on any given workday? What is a sufficiently private area for the mother to pump?

While not legally required, as employers can make space available on an as-needed basis, having private, secluded space(s) for mothers is a best practice as it sets expectations and allows employers and employees certainty about where to pump.

Employees who believe they have not been afforded their appropriate rights under the PUMP Act can either contact the U.S. Department of Labor’s Wage and Hour Office (1-866-4USWAGE) to file a complaint or file a complaint in court.

Erika Jacobsen White has been selected by The Daily Record as one of Maryland’s Power Players for the 2024 Employment Law Power List.

This group is composed of power players who are leading key organizations, creating change, impacting the community and engaging others to succeed.