Author: JGL Law

Law360 recently captured JGL principal Brian Markovitz’s perspective of the personnel changes executed by EPA administrator Scott Pruitt and the potential whistleblower claims that may result.  According to a recent New York Times report, five top advisers and security personnel who questioned some of Pruitt’s expenditures, travel habits and security­ related moves were either demoted to jobs with less responsibility, transferred to jobs outside of Pruitt’s group, placed on administrative leave without pay, asked to resign, or investigated. Although the EPA defends these employee changes and denies any connection between the changes and the employees’ actions against Pruitt, the employees could have claims under the Whistleblower Protection Act according to legal experts.

Markovitz believes these employee changes may not only result in whistleblower claims but also may negatively impact the EPA’s employee morale. “The super talented employees who have been there for years leave, so you have an institutional brain drain, which is terrible,” Markovitz said. “And everybody else just keeps their heads down. They just do enough of their job to try to keep their job and feed their families. Nobody’s going to stick their neck out, creatively or otherwise.”

To read the Law360 article in its entirety, please click on the image below.

In his practice, Markovitz serves clients from a variety of industries including government, construction, healthcare, and many more. His clients trust him to help them during their most desperate times, and they appreciate his dedication to correcting injustices that have a tremendous impact on their lives. Markovitz brings an individualized and holistic approach to every case, taking into account each client’s distinct needs and goals in resolving the dispute. His goal isn’t just to win the case – it’s also about helping each client in every way he can.

The African Art Museum of Maryland (AAMM) recently celebrated their Spring Open House and the launch of their new project, “Art from the Heart.” JGL attorney Eleanor Hunt was a sponsor of the free event and is a proud member of the Maple Lawn community.

AAMM is the first museum in the Maple Lawn community, and since its inception, it has been dedicated to encouraging a broader understanding and awareness of the diverse cultures and artistic expressions of Africa. The non-profit museum hosts a variety of events, including hands-on workshops, community events and organized trips to Africa. Hunt currently serves on the board of directors for the museum.

Jay Holland was honored to present at the prestigious 2018 Jacobus tenBroek Disability Law Symposium in Baltimore, Maryland on March 22, 2018. 

In his presentation, Jay addressed the intersection between disability rights law and Qui Tam cases under the False Claims Act, and how disability rights advocates can use the powerful tool of the False Claims Act in disability related cases.  Jay not only addressed the basics of the law, but the nuances as well, and how disability cases can often involve claims of Medicare and Medicaid fraud by unscrupulous health care providers. There was a very lively exchange and robust questions from the attendees. 

The symposium drew disability rights advocates from all parts of the country. The day consisted of plenary sessions and workshops provided an opportunity for attendees to examine subjects such as law enforcement and disability, discrimination against employees with disabilities and disparities in healthcare for minorities. These session were presented by distinguished law professors, practitioners and advocates. Mark Riccobono, president of the National Federation of the Blind, presented a keynote address during the symposium.

Jay Holland is a principal in JGL’s Civil Litigation Group, and the chair of the firm’s Labor, Employment and Qui Tam Whistleblower practice. He is a renowned employment and qui tam litigator known for taking on tough cases and achieving exceptional results.

Ever want to see an attorney in action? Well, now you can! Attorney Megan Benevento recently testified in support of House Bill 500, a bill which will make it a criminal offense for mandatory reporters to knowingly fail to report child abuse and neglect. She has the knowledge and experience to be at the forefront of these issues. Her testimony was recorded and can be viewed online through a link provided below. No doubt, her passion and experience as a mandatory reporter and as a former social worker come through in her chosen words used throughout her time in the assembly’s spotlight.

To watch the full testimony, click here and scroll to 22:18. Megan also takes questions directly from the delegates from 26:28-34:55. 

At Fulton Elementary School, students celebrated “Career Day” and were invited to dress-up as their future career-selves. Amongst the hopeful teachers, professional athletes and doctors, were promising lawyers, vets and even business owners. To further celebrate their future careers, students had the pleasure of listening to real professionals speak of their own careers and how they achieved their career aspirations. JGL attorney Eleanor Hunt was one of the professionals who spoke to 4^th and 5^th graders during this day. The school is located in the Maple Lawn community in Fulton, Maryland where Hunt resides with her husband and two young children.

“It was a pleasure and an honor to speak to the young students. Anytime I can make a positive impact on the future leaders of our communities, I make sure I am present,” Hunt said. Eleanor is a former member of the Board of Directors for the Maple Lawn Homeowners’ Association, founded the Maple Lawn Women’s Networking Group and currently serves on the Board of Trustees for The African Art Museum of Maryland.

As senior counsel in Joseph, Greenwald & Laake’s Family Law practice, Eleanor represents clients in divorces, adoptions, child custody and visitation disputes, domestic violence proceedings, drafting qualified domestic relations orders (QDROs), and child and spousal support matters. Eleanor also counsels individuals and families in estate planning issues, including wills, trusts, power of attorney and advanced medical directives as well as probate administration. Before turning her focus to family law and Estates and Trusts, Eleanor was a transactional real estate attorney who worked on residential real estate settlements, advised homeowners’ associations and condo associations, and drafted residential real estate contracts and leases. Her extensive background in real estate gives her keen insight into the property issues that affect her divorce clients’ cases.

Attorney Megan A. Benevento recently sat down with The Daily Record to discuss House Bill 500. This bill will make it a criminal offense for mandatory reporters to knowingly fail to report child abuse and neglect. Although the bill cleared the Maryland Senate 46-0, it has been waiting in the House Judiciary Committee since Tuesday.

Benevento, a former mandatory reporter explained that caretakers, “want the people that knew this abuse was occurring to be held accountable.” In addition to being a former social worker, Benevento has years of experience as an attorney representing children and families who have been subject to abuse or neglect. Most recently she advocated for students and families of the Harbour School, who claimed that the negligence of the special needs school had allowed their children to be sexually assaulted.

To read the article in full click here (http://thedailyrecord.com/2018/03/27/child-abuse-mandatory-report/)

As an attorney who often represents individuals in labor and employment-related disputes, I routinely meet individuals who allege to have been subjected to some form of harassment or discrimination at their place of employment.  With increasing frequency—due in no small part to the recent “#MeToo” movement—I have encountered many people who describe incidents of being victims of unwanted sexual advances from either their supervisor or a co-worker, with many of their allegations being quite disturbing. 

For example, one woman recently detailed to me a number of incidents of sexual harassment committed by her supervisor where he routinely requested her presence in his office, away from her fellow co-workers, under the guise of a business-related purpose, only to instead engage in lewd conduct and attempt to proposition her.  Another woman described to me how her supervisor often required her to stay late into the night, well after normal business hours, to work on low-priority assignments, during which time her supervisor would attempt to pressure her into having a sexual relationship with him.

While the actions of each respective supervisor are appalling and possibly criminal, and have absolutely no room in the workplace, the first question I usually ask each person—after letting them know that I am sorry they endured such behavior—is, “Did you report the person’s behavior to your employer?”  In response, I too often hear that the employee has not reported any of the inappropriate, discriminatory behavior to their employer (i.e., filing a complaint with human resources, etc.), which sets off my internal employment lawyer alarm bells. 

When I dig deeper into the issue of why the individual has not complained of the alleged harassment to their employer, I routinely hear the following reasons:

• “I was ignoring [the harassing or discriminatory behavior], hoping that it would stop or go away;”
• “I don’t want to be viewed as a ‘troublemaker’;” and (most commonly)
• “I don’t want to get fired.”

Although a hesitation to report instances of workplace discrimination and harassment is understandable, especially when considering the possibility of a retaliatory termination (everyone needs a job and income to pay their bills, right?), what many victims of workplace harassment and discrimination do not understand is that failing to report a harasser’s behavior can have negative consequences.  These consequences extend to not only the victim’s current employment status but to the viability of any future legal action against their employer.

As I touched on previously[1], to be held liable for harassment or discrimination, an employer must have notice of the harassment or discrimination and fail to take effective corrective action to stop it. Consequently, employers possess an absolute defense to an employee’s harassment/discrimination claims—as articulated in the Supreme Court’s tandem decisions in Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998) —if the aggrieved employee does not bring the harassing and/or discriminatory conduct to their employer’s attention by filing a complaint with a supervisor or human resources.[2]

As the Supreme Court articulated in Faragher and Ellerth, if an employer can show that an aggrieved employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer,” then the employer is not generally liable to the employee for any harassing or discriminatory behavior that may have occurred.[3]  This aspect of the employer’s defense originates from the general idea that an employee has an obligation to use processes and means that are reasonably made available to them by the employer (i.e., complaining to human resources, filing an anonymous complaint, complaining outside the employee’s “chain-of-command,” etc.) to avoid further discriminatory behavior or to lessen its impact.[4]

Therefore, if an employer has a system in place for an employee who has experienced harassing and/or discriminatory behavior to utilize, and the aggrieved employee fails to take advantage of the employer’s available means, then the employer is not liable for the harassment or discrimination because the employer could not correct behavior it does not know about.[5]  In this respect, if some, but not all, of the harm caused by the harassing or discriminatory conduct could have been avoided, then the damages normally available to the employee will be reduced, accordingly.[6]

When one thinks about the availability of this defense to employers and the Supreme Court’s rationale, this outcome makes some sense; how can an employer be liable for conduct that it is unaware of and did not have an opportunity to correct?  In the legal system, there exists a public policy interest for employers and employees to resolve their differences without having to seek redress from the courts. Courts do not wish to sit as “super personnel departments,” as several appellate courts have stated,[7] to adjudicate claims between an employee and their employer that could have been resolved or minimized had the employee provided notice of the harassing or discriminatory behavior to their employer prior.

Thus, it is paramount for one to bring any harassing or discriminatory behavior they are subjected to at their place of employment to their employer’s attention, not simply for maintaining the viability of any possible legal claim they might have against their employer in the future for such conduct, but to ensure that they are employed in a healthy work environment.  Importantly, such complaints should always be done in writing so that you are able to retain a copy of your complaint and have proof of placing your employer on notice, in case it becomes an issue later. 

Nevertheless, I routinely hear from prospective clients that the reason they do not bring complaints of harassing or discriminatory behavior to their employer’s attention is out of fear of being terminated (i.e., retaliated against).  Employer retaliation in response to an employee’s complaint of discrimination or harassment is, unfortunately, a real possibility and does, in fact, occur.[8]  However, this is illegal, and most employers have very clear policies in place that state they will not tolerate retaliation against their employees because they reported harassment or discrimination. Federal law and all states, including the District of Columbia,[9] protect employees from this sort of retaliation.  And where an employer disregards federal and states law and retaliates against an employee for complaining of harassment or discrimination, the employer can be held liable.[10]

Moral of the story: speak up and alert your employer in writing if you believe that you have been subjected to unlawful harassment or discrimination so that your employer can deal with the problem; otherwise, the consequences for your failure to do so could cause you to remain in a hostile work environment and, potentially, prevent the employer and harasser from being held accountable.

The Society for Human Resource Management (SHRM) has written an article about the NCAA’s March Madness event and its potential impacts within the workplace. Although this is an exciting time for many college basketball fans, employers should be cautious when the games begin to involve their offices and employees. It is not uncommon for office pools, bets and communal viewing of the games to happen during the series of games. And, often times, these activities can actually boost morale among employees. Yet, it is important for employers to be sensitive and aware of possible inefficiency, religious objections and financial concerns among those who are asked to participate. In fact, JGL principal Brian Markovitz advises that “…if a company wants to be completely safe, it shouldn’t give out any prizes.” To read the article in its entirety, please click here: https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/employees-bet-hundreds-on-march-madness.aspx.

SHRM is the largest HR professional society in the world, representing members from over 165 different countries, with 575 affiliated chapters in the United States, China, India and United Arab Emirates. They aim to provide resources for the HR professional including expertise and educational materials.

Brian Markovitz serves clients from a variety of industries including government, construction, healthcare, and many more. His clients trust him to help them during their most desperate times, and they appreciate his dedication to correcting injustices that have a tremendous impact on their lives. Markovitz brings an individualized and holistic approach to every case, taking into account each client’s distinct needs and goals in resolving the dispute. His goal isn’t just to win the case – it’s also about helping each client in every way he can.

On December 1, 2017, the State of Maryland joined 29 other states and the District of Columbia, allowing the sale of medical marijuana to residents in pain. The new law allows for thousands of Marylanders to seek a method of treatment previously unavailable to residents of the state. Medical marijuana is now available in Maryland for any condition that is severe in which other medical treatments have been ineffective, and if the symptoms “reasonably can be expected to be relieved” by marijuana. Patients with a chronic or debilitating medical condition that causes severe appetite loss, severe or chronic pain, severe nausea, seizures or severe muscle spasms also can have access, as well as people with glaucoma or post-traumatic stress disorder.

Can an injured worker in Maryland receive and be compensated for medical marijuana treatment?

No one in Maryland has a definitive answer to this yet. Workers Compensation law in Maryland provides that if a covered employee has suffered an accidental personal injury, compensable hernia, or occupational disease, the employer or its insurer shall provide to the covered employee medical, surgical, or other attendance treatment; hospital and nursing services; medicine; crutches and other apparatus; and artificial arms, feet, hands, and legs and other prosthetic appliances. Md. Labor and Employment Code Ann. §9-660(a)(1-5). Some workers who have experienced a compensable injury under Workers Compensation law may prefer to seek treatment with a medical marijuana dispensary in Maryland. This is not uncommon given the documented effects of cannabis and cannabinoid treatments. Now that medical marijuana is legal, the question is, will the Maryland Workers Compensation Commission approve treatment that includes medical marijuana consumption?

It is too early to refer to Maryland case law for answers to this question, but other jurisdictions have ruled on whether or not medical marijuana is a compensable form of treatment. While Maryland might ultimately decide not to follow other jurisdictions, it will certainly carefully review the conclusions of sister states.

In one of the few cases on the subject, the New Mexico Court of Appeals held that marijuana may be a “reasonable and necessary” medical treatment for a workplace injury, and if a treatment is reasonable and necessary, the employer and its insurer must pay the bill.  See Vialpando v. Ben’s Automotive Services, 2014-NMCA-084, 331 P.3d 975 (N.M. Ct. App.), cert. denied, 331 P.3d 924 (N.M. 2014); see also Lewis v. American Gen. Media, 355 P.3d 850, 856-58 (N.M. App. 2015) (rejecting challenge to reimbursement for medical marijuana under Workers’ Compensation Act based on federal preemption); cf. Maez v. Riley Indus., 347 P.3d 732, 735-37 (N.M. App. 2015) (finding sufficient evidence that medical marijuana was medically necessary).

The New Mexico Court of Appeals found that New Mexico’s Workers’ Compensation Act does not prohibit a healthcare provider from authorizing medical marijuana treatment for an injured worker in the course of the treatment for his workplace injury. According to New Mexico’s highest state court, as long as the treatment is “reasonable and necessary”, and approved by a workers’ compensation judge, the employer is responsible for paying for it under New Mexico law. Additionally, the Court found that federal law does not preclude repayment for medical marijuana under New Mexico’s Workers’ Compensation Act. 

Outside of New Mexico, administrative actions taken in California and Minnesota have also authorized reimbursement for medical marijuana under workers’ compensation law.  In Cockrell v. Farmers Insurance and Liberty Mutual Insurance Company, 2012 Cal. Wrk. Comp. P.D. LEXIS 456, a California workers’ compensation court held that the use of medical marijuana was reasonable and necessary under the state workers’ comp law, and that the Compassionate Use Act of 1996, which legalized medical marijuana in California, did not bar reimbursement.  In Minnesota, regulations promulgated by the Department of Labor and Industry (“DLI”) address the criteria for treatment of the most common work-related injuries, and also prohibits the use of “illegal substances” as part of workplace injury treatment.  In July 2015, the DLI issued new rules that redefine “illegal substance” and specifically exclude from the definition medical marijuana prescribed under state law.  Therefore, medical marijuana is a permissible and reimbursable form of medical treatment for workers’ compensation claims in Minnesota.

Surely this issue will be litigated within the Workers Compensation Commission and in Maryland’s appellate courts in the months and years to come. How Workers Compensation Commissioners and state court judges decide to rule on the compensability of medical marijuana treatment for injured workers are decisions that will undoubtedly draw interest from employers, insurers, medical providers, and workers across the state. Will the Workers Compensation Commission in Maryland choose to adopt this “reasonable and necessary” standard applied in other jurisdictions? Or will Maryland set a new standard for itself on the issue? Will the Maryland legislature decide to provide a legislative answer to this question by allowing (or prohibiting) the Maryland Workers Compensation Commission to authorize medical marijuana as treatment? What effect would allowing medical marijuana treatment in workers compensation cases have on the vocational rehabilitation process? Are the dispensaries and medical marijuana providers operating and set to operate in the state equipped to address the needs of the workers’ compensation community? The Workers Compensation attorneys at JGL are keeping an eye on this and other cutting edge developments.

While personal lives and professional business relationships may appear to be very different, they actually can share very similar qualities and principles.   In fact, many aspects of a successful business mirror those found in a successful personal relationship. It can be a worthwhile exercise to apply some well-heeled practices to one’s personal relationship in order for it to reach its fullest potential. Here are a few business practices that can be converted and used to enhance one’s personal relationship:

1. Communication. In a successful business, it is important that one reaches out to their customers and business partners frequently in order to keep things running smoothly. The same goes for a personal relationship. After all, communication is a key part of any relationship. Although effective communication requires a lot of hard work and strategizing, both successful personal relationships and successful businesses depend on problem-solving, negotiation, and collaboration among all parties for both a strong foundation and a positive outcome.

 

2. Value and commitment. For both businesses and personal relationships, it is important to invest in making it work out. Not only is investment important, but it is important that both partners take something equally beneficial from the relationship.

 

3. Focus. Relationships and businesses take time, commitment, and arguably the most important – focus. In businesses, it is important to pay attention to customers’ and partners’ needs in order to work through any difficulties that may arise. In relationships, it is equally important to focus on a partner’s needs and emotions in order to solve problems.

 

4. Time to go. Sometimes, things don’t work out. And that is okay. In both business and personal relationships, is important to recognize when it is time to walk away. If that doesn’t happen, both parties risk damage to their personal health and well-being.

Strategies that prove successful in business can indeed be employed to strive for greater success in a personal relationship.  Success in both worlds takes hard work, focus and commitment. Despite best efforts, however, sometimes those relationship may not succeed.   

Like a business that needs to wind down and shut its doors, a relationship that is coming to an end may also require a thoughtful, educated and calculated means to draw it to a close. An experienced and knowledgeable divorce attorney can guide an individual who is in a relationship that is ending through parenting disputes and financial challenges in order to reach a positive and successful resolution.

The Dating Advisory Board’s Jen Hecht interviewed Joseph Greenwald & Laake principal attorney David Bulitt for an online video segment discussing how people can apply successful business techniques in their personal relationships.   During the interview, David discusses the ins-and-outs of divorce law and some of the themes that he tends to see in his legal practice. David also discusses his second book, Because I Had To, published in January 2017.

The Dating Advisory Board is an online vlog hosted by Hecht that takes real-world business strategies from many industries to show how they can be used to create a dating strategy. The goal of the website is to empower women to approach their lives and the dating world with passion, clarity and conviction.

David Bulitt is a family lawyer, and JGL’s Assistant Managing Director. For years, David has been included amongst the DC area’s top divorce lawyers and is a published author.

Click here to learn more about David’s legal and writing careers in this web show interview.