Author: JGL Law

Yes and no. The Family Medical Leave Act (FMLA) was created to protect employees while on leave due to medical reasons. However, under certain circumstances, an employee can be fired. Let’s look at what the FMLA is and when you can and cannot be fired while on or returning from medical leave.

What is the FMLA?

The FMLA is a federal, nationwide law that provides employees with twelve weeks of unpaid leave per year. Employers cannot discipline an employee for applying or taking medical leave covered by the FMLA.

FMLA leave is time used to handle a personal medical issue, take care of an immediate family member, take care of a newborn child, newly adopted or a new foster child, take care of pregnancy complications, and for other serious medical necessities. Additional requirements are:

• The employee must have worked for a total of 12 months for the employer.
• A minimum of 1,250 hours must be worked by the employee during 12 months immediately preceding the leave.
• FMLA only applies to companies with 50 or more employees within 75 miles.

The FMLA is a federal law that sets minimum requirements across the country. But, policies regarding unpaid medical leave may vary from state to state. Some states offer greater options and benefits. Special rules apply to education agencies such as schools that may give more flexibility than other employers. Additionally, there are different requirements for military caregiver FMLA.

If you qualify for FMLA medical leave, it provides job-protected leave benefits. This means, when you take FMLA leave, your job (or an equivalent) must be available to you upon your return.

Is It Possible to Be Fired While On FMLA?

• Yes, it is possible to be fired while on FMLA but an employee cannot be fired for requesting or taking FMLA leave.

An employee cannot be fired for retaliatory reasons for taking or requesting FMLA medical leave. Retaliation occurs when an employee is denied FMLA leave and faces disciplinary action or when an employee comes back from FMLA medical leave to his or her position but suffers adverse actions because of taking leave. An example of retaliation is when the employee is fired for missed work while out on FMLA medical leave.  It’s important to meet with an experienced attorney if you feel you have been wrongfully terminated due to FMLA.

When You Can Be Fired While on FMLA

There is the possibility of being terminated while on or returning from FMLA. Employers can terminate employment due to:

• The employee failed to apply for FMLA-approved leave.
• Poor performance from the employee before taking FMLA.
• There was misconduct or fraud committed by the employee.
• Evidence that the employee would have been terminated even if FMLA leave had not been taken. For example, a reduction in the workforce that had been documented before taking leave.

An employer with any legitimate, non-discriminatory, and non-retaliatory reason can terminate an employee regardless of their FMLA leave status. Documentation of the facts is always important. If you think your FMLA rights have been violated, the best way to handle the situation is to consult with  a labor and employment attorney.

Call or e-mail us at Joseph, Greenwald & Laake, P.A. to schedule a consultation with an experienced attorney regarding your labor and employment issue or wrongful termination claim. We offer reliable counsel on how best to proceed and what your rights and responsibilities are.

The process of a divorce is a stressful period that can often be taxing timewise and emotionally. There are also many steps in the divorce process – one of them being a deposition.

In and of itself, a deposition can be an unnerving process.   It frequently occurs during the “discovery process” of divorce proceedings.

At JGL Law, our team of skilled divorced attorneys work to guarantee that you are properly consulted and informed on all aspects of divorce litigation – including depositions. We’ve put together a preparation guide that will help answer any questions you may have regarding a current or future divorce deposition.

For more information or to consult with one of our divorce attorneys, please contact us today!

What is a Divorce Deposition?

During the discovery process of a divorce, a deposition is used to gain information that is relevant to the case. The testimony is taken and the witness is under oath as if testifying in court.

At a divorce deposition, attorneys and a court reporter are present. The parties can also be present for a witness deposition, but that determination is usually left to be decided by the attorney and client.  Depositions are typically held in the office of the attorney requesting the testimony, but can also take place at another location, such as a conference room in the courthouse or the court reporter’s office.

The deponent, or the person being deposed, may or may not be subpoenaed to appear in court and testify at the deposition.

Benefits of a Divorce Deposition

A deposition is used in order to get necessary information, including: records, reports, and testimony under oath that can be referred back to if/when the case goes to trial.

The benefits of a divorce deposition can include:

• Case Preparation
• Acquired Testimony
• Opportunity to Study Witness Behavior
• Settlement Process Aid

Additionally, depositions can be beneficial in building a case against the deponent as inconsistencies and credibility can be called into question – often regarding custody, finances, asset acquisition, etc.

How to Prepare for a Divorce Deposition?

The first, crucial step in preparing for a divorce deposition is to meet with an experienced divorce attorney and provide them with all the facts. Giving your attorney this information helps with deposition preparation and direct questioning that your attorney will need to develop a plan of action.

The second step in preparing for a divorce deposition is to know the questions that will be asked.

Questions Asked at a Deposition

Questions asked in a deposition will differ from case to case, however, there are five common subjects that are frequently brought up in divorce depositions.

Interrogatories, or written questions that are answered under oath in writing, may also be asked to complete by a spouse’s lawyer before the deposition. Typically, these questions are similar to what would be asked during a recorded verbal statement.

Financial

When there are issues of child support and/or alimony, a division of debts, property, or assets, financial information and questions directed at acquiring that information are a vital part of divorce cases.

Child Care/ Custody

Unresolved issues with child care and custody can be incredibly emotionally taxing for all parties, so a divorce deposition can be useful in determining the safest and best place for a child to live.

Attorneys will use depositions as a way to ask deponents questions, including:

• Who is the primary caregiver for the child?
• How have past/current interactions been with each parent towards the child?
• Does the child, or children, have special needs?
• What is their home life like?
• Where do they attend school?

Mental and Physical Health

Information regarding you or the deponent’s mental or physical health may be called into question during a divorce deposition as it related to finances and children.

Make sure that you disclose any mental or physical health information to your attorney before the deposition so that you’re able to properly address it later.

Specific Dates and Events

Divorce depositions are designed to address or introduce any new information that could potentially harm a case, so it’s important to disclose every piece of relevant information, including specific dates and events. This will help to prevent any disparities between parties as well as avoid issues with credibility.

Dangerous or Recreational Activities

In a divorce deposition, expect to answer personal questions. How you spend your free time, recreational activities (dangerous or not) are not off-limits.

Alcohol use, drug use, dangerous hobbies, etc. – these are all a cause for concern and can potentially be used to determine custody, so speak to your attorney beforehand and be honest.

Tips for Divorce Depositions

While it’s always best to speak to your attorney regarding your specific case, here are a few helpful tips for protecting yourself during a divorce deposition.

Don’t Lie

One of the most important things to remember, in preparation for and during a deposition, is to be completely honest.

False testimony can be used against you in trial. In a deposition, you’re answering questions under oath. A false statement can be subject to perjury or, at the very least, a loss of credibility for the deponent.

If You have questions, Ask your Attorney

Your attorney is there to make sure you’re properly prepared for a deposition. It’s imperative that you consult with your attorney about all relevant information to the case.

They’re also there to answer any questions you may have, so utilize your attorney-client relationship!

Social Media

In today’s world, many people maintain social media accounts that often contain posts, photos or other information that may be useful to the opposing side.  Please discuss the content of these accounts with your attorney to be sure there is nothing that may prove harmful to your case.

Listen to every question – Don’t Guess

When asked a question, listen carefully and don’t guess. If you don’t know, say you don’t know. Lying, providing misinformation, or volunteering irrelevant statements are not advised and can lead to more trouble.

Consult with a Divorce Attorney Today

At Joseph, Greenwald & Laake, P.A., our skilled divorce attorneys are here to look after your best interests and can help you resolve the first two issues as quickly, efficiently, and cost-effectively as possible, allowing you to focus on a brighter future ahead.

For any questions or concerns about your divorce process, please consult with one of our compassionate and skilled attorneys today!

JGL won a verdict of more than $3 million in back pay for 13 information technology workers who were wrongfully terminated from their jobs at the Washington Suburban Sanitary Commission.

The Fourth Circuit Court affirmed the District Court’s decision denying Schuster’s Rule 40(b) motion and upholding JGL’s $1.2 million jury verdict on unjust enrichment in the Schuster class action case on Friday, April 21, 2023.

Read more here.

Jury awarded $8,000,000.00 (reduced to the cap on non-economic damages) to a child victim who was sexually assaulted in a common area of a high-rise apartment building based on the failure of the apartment building to maintain a secure building.

Bethesda Magazine surveyed attorneys who practice in Montgomery County asking them to name the attorneys they would recommend in 25 practice areas.

7 JGL attorneys were included in the resulting “Top Attorney” listings:

Family Law/Divorce

• Anne Grover

Trusts & Estates

• Paul Riekhof

Civil Litigation

• Timothy Maloney

Business/Corporate

• Jerry D. Miller

Employment Law

• Jay P. Holland

Medical Negligence

• Andrew Greenwald

Personal Injury/Workers Comp

• Debora Fajer-Smith

For the complete article, visit www.bethesdamagazine.com and click on “Digital Edition” (requires subscription).

Updated October 2021:

Third party custody is one of the fastest developing areas of Maryland law, seeing many major changes since 2016. This series of articles explores these developments and raises questions about where this area of the law is heading.

This series discusses:

• What is Third Party Custody?
• What’s a De Facto Parent?
• Exceptional Circumstances
• Unfit Parents
• Participating as a Third Party in a Custody Case
• Step-Parents
• De Facto Parents & Multi-Parent Families
• Grandparent Visitation
• The Future

Why Does Consent Matter?

Consent is a critical element of De Facto parenthood.  To be a De Facto parent requires the legal parent’s consent to and fostering of the third party’s and child’s parent-child relationship.  Without that consent, one cannot be a De Facto parent.  But, what if there are two biological/adoptive parents and only one consents to the De Facto relationship with a third party?

What are Multi-Parent Families?

A multi-parent family is one in which three (3) or more parents are recognized as legally responsible for the care, custody, and control of a child.

Maryland’s legal approach to multi-parent families has evolved since 2016.  In 2016’s Conover opinion, the Court of Appeals’s majority cautioned against multi-parent families.  Footnote 18 recommended taking into account, when deciding custody, whether others had already been recognized as De Facto parents and cautioned courts to “avoid having a child or family be overburdened or fractured by multiple persons seeking access.”  One of the concurring opinions found this caution odd in light of the unanswered question of unilateral consent.  As discussed in my last blog, the lower appellate Court’s 2018 Kpetigo decision opened the door (but did not definitively resolve) legally recognized multi-parent families and unilateral parental consent (so, consent of only one parent) to formation of a De Facto parent relationship.

Until E.N. v. T.R., 247 Md.App. 234 (2020) and the Court of Appeals’s E.N. v. T.R. (July 2021), which usher in the era of legally recognized multi-parent families and address unilateral parent consent.

E.N. v. T.R.

This case involved a mother, father, and father’s (non-spouse) partner.  Mother’s and father’s children lived primarily with father and father’s partner, and mother informally agreed to this.  During Father’s incarceration, the children continued to live with father’s partner.  Father’s partner and mother disagreed about visitation and custody, so father’s partner filed for custody.  Father submitted a written consent to partner’s custody (though was not a party in the case and did not participate).  At trial, father’s partner was found to be a De Facto parent and granted sole physical custody, with alternate weekend visitation to mother and joint legal custody to partner and mother.

On appeal, the lower appellate Court concluded that one parent can create a De Facto parent through consent and fostering that relationship.  The Court adopted Conover’s dissenting discussion that a De Facto parent relationship could be created when:

• there are two parents
• by only one parent’s consent and knowledge
• without the knowledge and consent of the other parent

The opinion does not speak to establishment of a De Facto parent relationship over the ongoing, explicit objection of the other parent and seems to decline to decide whether implied consent is sufficient.

Additionally and unsurprisingly (though bears remembering), the Court reiterated that once De Facto parent status is conferred on a party, that party and the parents are on equal legal footing, including constitutionally.

This was appealed and addressed by the highest appellate Court in July 2021, giving some clarity and raising still more issues.

Most importantly, E.N. v. T.R. (the second) decided that both parents must consent to the establishment of a De Facto parent-child relationship.  Consent may be express or implied and must be knowing and voluntary.  Implied consent may be shown through action or inaction, for example not objecting to the establishment of the parent-like relationship.

Next E.N. v. T.R. decided that exceptional circumstances or unfitness may be considered about the non-consenting parent.  Worryingly, due to internal inconsistencies in the opinion’s language, the exact legal standard is unclear.  The opinion suggests that unfitness and exceptional circumstances may be a path to De Facto parenthood, when until now they were only paths to third party custody or visitation.  Which makes deciding these cases and advising clients difficult at best.

What’s the Big Deal?

E.N. v. T.R. (the second) raises more questions than it answers.  For example:

• Is there a limit on the number of legally recognized parents a child can have?
• How can a parent overcome one-sided consent and prevent third party custodial rights from being established?  Without this reflecting negatively on the non-consenting parent?
• Once recognized as a legal parent, can legal parenthood be terminated?  How?
• What about child support?
• How far can parental constitutional rights be pushed?

All – and more – to be discussed in my final blog about the future of third party custody…  But first, a brief detour to grandparent visitation rights.

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation.  Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law.

You can follow her for discussion, news, and developments in Maryland family law on LinkedIn, Facebook, Instagram, Twitter, LindsayParvis.com, and YouTube.

On August 26, 2021, a jury in Montgomery County returned a verdict in favor of the Plaintiffs.  The case involved the death of their mother, Yvonne Napoleon, after traumatic removal of a feeding tube at Oakview SNF, LLC in Silver Spring.  The nurse failed to follow orders and apply a protective abdominal binder to keep the feeding tube securely in place and prevent it from being removed.

Ms. Napoleon was 76 years old and had been diagnosed with advanced dementia.  As a result of the nursing home’s negligence, she vomited and aspirated her stomach contents into her lungs and also suffered a hole in her stomach resulting in peritonitis. Oakview refused to take responsibility for the negligence and insisted the vomiting and aspiration was a “natural consequence” of dementia and the hole in her stomach had nothing to do with her illness and death.  The Jury awarded $800,000 to the estate of Yvonne Napoleon and to her sons for pain and suffering, in addition to the medical bills incurred.

If you or your loved ones have suffered negligence as a result of nursing home care, please contact Joseph, Greenwald & Laake, PA for a free consultation to evaluate your case.

We are delighted to congratulate 15 of our attorneys for being selected by their peers for inclusion in the 28th Edition of The Best Lawyers in America:

Allison Mcfadden

• Family Law

Andrew E. Greenwald

• Medical Malpractice Law – Plaintiffs
• Personal Injury Litigation – Plaintiffs

Anne E. Grover

• Family Law
• Family Law Arbitration

Burt Kahn

• Medical Malpractice Law – Plaintiffs
• Personal Injury Litigation – Plaintiffs

David Bulitt

• Family Law Mediation
• Collaborative Law: Family Law
• Family Law

Debora Fajer-Smith

• Personal Injury Litigation – Plaintiffs

Jeffrey Hannon

• Family Law

Jeffrey N. Greenblatt

• Family Law

Patrick W. Dragga

• Family Law

Rami Taib-Lopez

• Family Law

Reza Golesorkhi

• Family Law

Stephen A. Friedman

• Personal Injury Litigation – Plaintiffs

Steven M. Pavsner

• Personal Injury Litigation – Plaintiffs

Timothy Maloney

• Appellate Practice
• Employment Law – Management

Timothy P. O’Brien

• Trusts and Estates

All lawyers named to The Best Lawyers in America© publication were recognized by their peers in the legal industry for their professional excellence in 146 practice areas. For the 2022 Edition of The Best Lawyers in America, 8.3 million votes were analyzed, which resulted in the inclusion of more than 62,000 lawyers, or approximately 5% of lawyers in private practice in the United States.

The selection of these lawyers in this prestigious peer-reviewed publication continues to demonstrate the quality of the legal services that we provide at JGL and our unswerving dedication to client service.

ROCKVILLE, MD., July 23, 2020 — Joseph Greenwald & Laake P.A. is pleased to announce that Christopher Castellano has been elevated to Senior Counsel.

“We are delighted to promote Chris to this highly responsible position,” said Paul Riekhof, Managing Director. “It is extremely well-deserved, and we look forward to his continued success at JGL.”

Christopher Castellano is a member of the Firm’s Family Law group. His practice covers Pre/Post Nuptial Agreements, Separation Agreements, Divorce, Marital Property Division, Business Valuations, Child Custody/Visitation, Spousal & Child Support and Modification. He was named a Maryland Super Lawyers Rising Star in 2021.

Christopher earned his J.D. in 2011, from the University of Baltimore School of Law.

About Joseph Greenwald & Laake

For more than 50 years, Joseph Greenwald & Laake has worked with individuals and businesses in Maryland and the District of Columbia, taking on the most complex of legal issues with sophisticated counsel and a personal touch. JGL serves clients in virtually all areas of the law.

2022 will see 5 major changes to the child support guidelines, one of which will allow the Court to decline to award any child support if certain circumstances exist.  Child support law current through June 30, 2022 does not entitle a Court to decline to order child support.  These changes will be found in Family Law Article §12-202(b) and apply to cases filed on and after July 1, 2022*.

Circumstances under the new law allowing a no support order are:

• The child lives with the parent from whom support is sought and the parent is contributing to the child’s expenses
• The parent is unemployed, has no resources to pay child support, and is incarcerated and expected to remain so for the remaining time support would be paid (but also see 2020 updates about incarcerated obligors/payors)
• The parent is institutionalized in a psychiatric care facility and expected to remain so for the remaining time support would be paid
• The parent is totally and permanently disabled, unable to obtain or maintain employment, and has no income other than SSI or SSCI benefits (in which case, there is usually a dependent benefit paid for the child’s support)
• The parent is unable to obtain or maintain employment in the foreseeable future due to criminal detainment, hospitalization or rehab

Interestingly, the new law also provides that a parent meeting or ceasing to meet the criteria above shall be a material change in circumstance to modify the child support award.  This recognizes that the qualifying circumstances above may not be permanent and support could be awarded in future.

However, the law doesn’t tell us how this material change language fits with Family Law Article §12-202(b), that changes to the child support guidelines law are not, themselves alone, a material change in circumstance to justify a modification of child support.  So, if the circumstances above exist on June 30, 2022, can a parent receive a termination or suspension of child support based upon the new law?  Hard to say for sure.  But if a parent does not make a request of the court, a parent won’t know.

Why did this come about?  Because Maryland is legally required to review its child support guidelines every 4 years and perhaps because research has shown that child support orders for too high an amount in fact result in less child support actually being paid.  So, by comparison, requiring payment of child support when a parent has no legally justifiable ability to pay may result in less child support being paid over the child’s lifetime.  Also, certain of the circumstances are in keeping with federal law.

What tips should parents and attorneys keep in mind?

• Don’t forget Family Law Article §12-104.1 if the basis is incarceration.  Because these two statutes are different but both apply to incarcerated payors obligors.  Compare the two when incarceration is justification for a suspension or termination of support.  (See article about 2020 Updates Incarcerated Obligors/Payors)
• Consider material change if requesting a modification after July 1, 2022*.  Per Maryland law, changes to the child support guidelines law are not, themselves alone, a material change in circumstance to justify a modification of child support (Maryland Code, Family Law Article §12-202(b)).  Other material changes are needed to obtain a modification of child support.  Make sure those changes exist and are stated in your Court filings.  And if not and helpful to your position, point that out to the Court.
• Use the 2022 law changes as a reference point for the Court.  If a termination or suspension of child support is requested before July 1, 2022 based on circumstances that would allow a no support order under the new law, refer the Court to the new law if helpful to your position.
• Don’t delay.  If these circumstances exist now, they may justify a modification, suspension, or termination of child support now.  Plus, modification can only be granted retroactive to the date a request is filed with the court*.

* Damon v. Robles, 245 Md.App. 233 (2020) provides an interesting and complicated discussion of when these exclusions may not apply.  Worth a look if interested in applying July 1, 2022 changes to cases filed or circumstances existing before that date.

For other articles in this series about updates to the child support guidelines law in 2020 and 2022:

• 2020 Updates
  • Shared Physical Custody
  • Incarcerated Obligors/Payors
• 2022 Updates
  • Potential Income/Voluntary Impoverishment
  • Self-Support Reserve for low income parents
  • No Support Order
  • Updated Economic Data
  • Parents’ Combined Income of $15,001-$30,000/month

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation.  Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law.

2022 will see 5 major changes to the child support guidelines, one of which introduces new Maryland law on the self-support reserve for low income parents for cases filed on and after July 1, 2022*.

The self-support reserve recognizes that parents at the lowest income levels require a basic amount of money to live on before being able to pay child support.  The self-support reserve standardizes this calculation, while still allowing deviation in appropriate cases.

Laws current through June 30, 2022 allow the Court to use its discretion in calculating child support now at these lowest income levels.  Either in the suggested amounts of $20-150 per month for combined parent monthly incomes of $100-$1,200 or to deviate from the guidelines (so, adjust) if applying the guidelines would be unjust or inappropriate.

Why did this come about?  Because Maryland is legally required to review its child support guidelines every 4 years and because research has shown that child support orders for too high an amount in fact result in less child support actually being paid.  Standardizing realistic child support at lower income levels should encourage payment of more support overall and simplify the calculation of child support.  Reviews of low income child support cases showed that, despite the Court’s discretion and suggested lower support amounts, in more than 40% of cases awards were higher than $150 per month.

What tips should parents and attorneys keep in mind?

• Calculate and compare!  If requesting child support in a lower income case, calculate and compare current guidelines to the 2022 guidelines.
• Be aware of filing deadlines*.  The July 1, 2022 changes apply to cases filed on and after July 1, 2022.  Not cases filed before.
• Use the 2022 guidelines as a reference point for the Court.  If child support is discretionary or downward deviation/reduction requested, show the Court the 2022 guidelines as a reference point for the appropriate amount of support.
• Consider retroactivity.  When weighing filing deadlines, consider that child support and changes to child support can only be awarded dating back to the date the request is filed with the court (Family Law Article §12-104)*.
• Consider material change if requesting a modification after July 1, 2022*.  Per Maryland law, changes to the child support guidelines law are not, themselves alone, a material change in circumstance to justify a modification of child support (Maryland Code, Family Law Article §12-202(b)).  Other material changes are needed to obtain a modification of child support.  Make sure those changes exist and are stated in your Court filings.  And if not and helpful to your position, point that out to the Court.

* Damon v. Robles, 245 Md.App. 233 (2020) provides an interesting and complicated discussion of when these exclusions may not apply.  Worth a look if interested in applying July 1, 2022 changes to cases filed or circumstances existing before that date.

For other articles in this series about updates to the child support guidelines law in 2020 and 2022:

• 2020 Updates
  • Shared Physical Custody
  • Incarcerated Obligors/Payors
• 2022 Updates
  • Potential Income/Voluntary Impoverishment
  • Self-Support Reserve for low income parents
  • No Support Order
  • Updated Economic Data
  • Parents’ Combined Income of $15,001-$30,000/month

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation.  Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law.