Author: JGL Law

GREENBELT, Md. – Joseph, Greenwald & Laake, P.A. is pleased to announce that the firm has been highly ranked in the Washington, DC, metropolitan area by the U.S. News – Best Lawyers® “Best Law Firms” for 2016. The firm is recognized in the practice areas of Family Law, Personal Injury Litigation – Plaintiffs, Medical Malpractice Law – Plaintiffs, and Trusts & Estates Law.

“Our firm is tremendously honored to once again be recognized by U.S. News – Best Lawyers as among the top law firms in the Washington area,” said Burt M. Kahn, managing director of the firm. “We are especially grateful to our clients who relayed their trust in our firm and their high regard for our services and our attorneys’ ongoing commitment and work toward helping them to address their legal needs and achieve their goals.”

For the sixth consecutive year, U.S. News – Best Lawyers has ranked U.S. law firms in major legal practice areas nationally and by 185 different metropolitan areas or states. The evaluation process involves client and lawyer evaluations, peer review from leading attorneys in their fields, and review of additional information provided by law firms as part of the formal submission process. Client feedback addressed the firms’ expertise, responsiveness, understanding of a business and its needs, cost-effectiveness, civility, and whether clients would refer another client to the firm.

To be eligible for a “Best Law Firms” ranking in a particular practice area and metro region, a law firm must have at least one lawyer who is ranked by Best Lawyers in that particular practice area and region. Currently, the firm’s attorneys David Bulitt, Stephen A. Friedman, Jeffery N. Greenblatt, Andrew E. Greenwald and Timothy P. O’Brien are ranked in the most recent edition of The Best Lawyers in America.

For more than 40 years, Joseph, Greenwald & Laake, P.A. is one of the most trusted law firms serving Maryland, the District of Columbia and Virginia. Known for its commitment to community, confidence and character, Joseph, Greenwald & Laake has represented a variety of clients, including individuals, small businesses and multimillion-dollar corporations. From simple to complex legal needs, the firm is prepared to deliver strategic solutions with high standards. 

You’ve been married around 25 years. Your children have become more self-sufficient or they’re gone. You shifted your attention back to your spouse, which led to a realization: you are really not happy in your marriage.

Well, you are not alone. The rate of uncoupling over age 50 has increased in recent years and it’s prompted the catch phrase: “gray divorce.”

While the consequences of this ‘gray’ revolution are largely unknown, there are some things we can conclude. When couples divorce later in life, they have fewer years left and fewer opportunities to make up for the financial losses often associated with divorce. Some may opt to stay in the workforce longer. Many will be forced to reenter the job market late in life. For economically secure adults who are healthy, a divorce may have minimal negative consequences and actually can be empowering, at least for the initiator of the divorce.

But for older adults, divorce brings the realization that their carefully nurtured nest egg will have to be divided, between them, and this can be difficult. Furthermore, expenses will increase when each has to pay for their own health insurance, housing and everyday expenses like utilities and auto insurance. The cost burden can become unnerving.

So, where do you begin?

Start with a list of necessary and discretionary living expenses. Estimate how much income you’ll need — and consider some of the factors that could save you another heartbreak.

Tax Liability – What to Consider: Make sure that tax issues are reviewed prior to finalizing a Separation Agreement so that neither spouse ends up with a tax bill that could have been reduced or avoided. To split retirement assets, a divorcing couple will need a Qualified Domestic Relations Order (QDRO) designed to accomplish the division of these assets and to insure a tax-free transfer.   

Retirement Savings: Spouses in a ’gray divorce’ have less working years left to contribute to retirement accounts. Early withdrawals from retirement funds can result in penalties and fees, so one or both spouses may have to delay their retirement and ultimately adjust their standard of living.

Spousal Support/Alimony: It’s not guaranteed. In Maryland it is dependent on a dozen different statutory factors that include the length of the marriage, the age and health of the parties etc.  Spousal support/alimony provides a spouse with periodic payments from the former spouse that continues after the divorce. Spousal support is not automatically ordered. 

Financial Survival After Divorce: You’ll want to thoroughly research your options for health insurance coverage. This is one of the biggest concerns and biggest budget items for those 50+ years of age. Project accurate living expenses and accept that your lifestyle may need to change. Some people find they need to return to the workplace or work longer than anticipated. 

Estate Planning:  You may have acquired, during the marriage, insurance policies, drafted a will or powers of attorney that benefit the other spouse, or that name the other spouse as an executor. Before filing for divorce you should discuss these issues with divorce counsel to determine if changes should be made sooner rather than later.  You may not want your soon-to-be-ex-spouse to have powers under a health care directive or general power of attorney. Estate planning can be a relevant part of a property settlement agreement.

Post Divorce: If you haven’t already done so, you will want to revise your estate plan, wills and change insurance beneficiaries.  Your will should be in compliance with the applicable provisions in your Separation Agreement. 

Rebuilding Your Life After Divorce:  Picking up and starting over can be emotionally and financially challenging.  Start by making a conscious effort to move forward and make the next chapter of your life worth living.  Stay active. Volunteer. Find your passion.  It is not too late to live your best life!

The National Advocates recently announced that Mr. Jeffrey Greenblatt has been selected for inclusion into its Matrimonial and Family Law specialty, an honor given to only a select group of lawyers as recognition of their superior skills and qualifications in the field. The selection for this exclusive list is limited to only 100 attorneys per state or highly populated region who have demonstrated their extraordinary abilities with superior results, a high level of peer respect and client satisfaction.

The National Advocates is a professional organization comprised of premier lawyers from across the country who have demonstrated exceptional qualifications in their area of the law, including Matrimonial and Family Law, Employment Law, Social Security Disability Law, Immigration Law, Bankruptcy Law and Estates, Wills and Trusts. The National Advocates provides accreditation to these distinguished attorneys, and provides essential legal news, information, and education to trial lawyers across the United States.

With the selection for membership by The National Advocates, Mr. Greenblatt has shown that he exemplifies superior qualifications, leadership skills, and case results as a legal professional. The selection process for this elite honor is based on a multi-phase process which includes peer nominations combined with third party research. As The National Advocates is an essential source of networking and information for trial attorneys throughout the nation, the final result of the selection process is a credible and comprehensive list of the lawyers chosen to represent their state.    

Real Property – Retaliation Actions and Attorneys’ Fees 

Felicia Lockett v. Blue Ocean Bristol, LLC, No. 29, Sept. Term, 2015 (Md. Feb.  22, 2016).

Felicia Lockett is a tenant in an apartment building knowns as “Bristol House” in Baltimore City and had been since 2010.  Slip Op. at 1, 7.  Ms. Lockett, who actively and vigorously participated in the tenants association there, had a contentious relationship with the landlord, Blue Ocean Bristol, LLC (“Blue Ocean”).  Slip Op. at 1.  In 2014, Blue Ocean did not renew her lease. 

When she refused to vacate, Blue Ocean eventually initiated a tenant holding over action.  Slip Op. at 1, 10-11.  In response, Ms. Lockett claimed that Blue Ocean’s actions “were in retaliation for her advocacy on behalf of the tenants association” and also ultimately defended and filed a counterclaim alleging that the non-renewal of the lease and the filing of the tenant holding over action were retaliatory for her participation in the tenants association.  Slip Op. at 1, 10-11.  Ms. Lockett sought $5,022 in damages, which is three times her monthly rent for each act of alleged retaliation, as well as costs and attorneys’ fees.  Slip Op. at 11.

The lease required rent to be paid in “equal monthly installments,” which at the relevant time was $837 per month.  Slip Op. at 8.  The lease also included a provision defining “rent” as follows: “All payments from [Ms. Lockett] to [the landlord] required under the terms of this lease, including, but not limited to, Court costs, shall be deemed rent.”  Id. (alteration in original).  Also, a “utilities addendum provides for the landlord to pay for the monthly gas charge for the entire building, describes how the charge is to be allocated among the residents, and obligates the tenant to reimburse the landlord for the tenant’s pro rata share on a monthly basis. The utilities addendum characterizes this reimbursement by the tenant as ‘additional rent.’”  Id.

Upon a de novo appeal to the circuit court, the trial court ruled in Ms. Lockett’s favor in the tenant holding over action, finding that the non-renewal of the lease was an act of retaliation.  Slip Op. at 13.  At the time of the filing of the tenant holding over action, however, Ms. Lockett allegedly owed $244 for a filing fee, late fees, and gas charges – which Blue Ocean alleged constituted rent.  Slip Op. at 13.  The circuit court, therefore, concluded that it could not find that Ms. Lockett was current on her rent as of the date of the filing so it ruled in favor of Blue Ocean on that claim.  Slip Op. at 13-14.  The circuit court, denied the request for attorneys’ fees.  Slip Op. at 14.  Thus, a key question here is what constitutes “rent.” 

The Court initially observed that the term “rent” is not defined in the anti-retaliation statute, Real Property § 8-208.1(d), or elsewhere in Title 8 of the Real Property Article.  Slip Op. at 20.  The Court initially distinguished between commercial and residential leases.  The Court recognized that it has held, in the commercial context, “that ‘charges which may be definitely ascertained, paid by the tenant, going to [the tenant’s] use, possession, and enjoyment of rental commercial premises, are rent if such was the intention of the parties.’”  Slip Op. at 20 (alteration in original).  The Court observed that it explicitly limited that holding to commercial leases, which are more likely to be the product of arms-length negotiation rather than the typical take-it-or-leave-it leases in the residential context.  Id. at 21.

Turning to Ms. Lockett’s lease, as noted above, the Court found there to be many potential payments that a tenant could owe a landlord under the lease, including fixed monthly rent, a procedure for “higher rent,” a provision deeming all payments to the landlord being “deemed rent,” provisions for returned check charges, late fees, administrative and attorneys’ fees, indemnification of liability, repairs, and others.  Slip Op. at 22.  The utilities addendum also considered the utilities charges to be “additional rent.”  The Court summarized that the lease there provided “for ‘rent’ in a fixed monthly amount and for ‘deemed rent’ and ‘additional rent’ that may or may not exist in any particular month and that can vary wildly in amount, depending on what other payments the tenant may owe the landlord.”  Slip Op. at 22.  Blue Ocean’s internal records were notable in that they referred to “rent” as the fixed monthly charge, while it used different terms for the categories that may be characterized as “deemed rent” or “additional rent.”  Slip Op. at 23.  Therefore, even if the Court were to defer to the definition of “rent” in the lease, it would not be clear what to derive from it in any event.  Slip Op. at 23.

The Court next turned to the ordinary meaning of the term “rent.”  The Court observed that the typical dictionary definition of the term “rent” is the “periodic sum paid for the use or occupancy of property.”  Slip Op. at 23 (citing Merriam-Webster’s Collegiate Dictionary (11th ed.) and Black’s Law Dictionary (10th ed. 2014)).  The “context of the statutory scheme” also suggests that “RP §8-208.1 ordinarily means the periodic amount paid by a tenant for use or occupancy.”  Slip Op. at 24.  RP § 8-208.1(c) provides for an award to either the successful tenant or a landlord successful in avoiding a retaliation claim “’damages not to exceed the equivalent of 3 months’ rent’” as well as fees and costs.  Slip Op. at 24-25.  The statutory scheme also generally provides for “clarity and definiteness” in the construing of “rent.”  Slip Op. at 25 (citing RP §§ 8-203(b) (security deposits), 8-212.1 (tenant in active duty), 8-212.2 (limiting liability of certain tenants)).  Therefore, “rent” should be an amount readily ascertainable and trebled.  Slip Op. at 25.  If, on the other hand, “rent” under the statute were to include variable charges and figures that are uncertain and changeable from month to month, there would be inherent uncertainty in the statute, Slip Op. at 25 n. 10, which is unlikely General Assembly’s intent.  Slip Op. at 25.   

As the final step in its analysis, the Court looked to the legislative purpose of the statute.  RP § 8-208.1 “is designed to protect tenants in residential properties against retaliation by landlords.”  Slip Op. at 27.  This statute is a remedial statute, providing a remedy that was not available at common law.  Slip Op. at 27.  Because RP § 8-208.1(d) is an exception to the remedial purposes of the statute, the Court elected to construe the exception narrowly and utilize the more specific definition.  Slip Op. at 27.  The Court concluded that the term “rent” in RP § 8-208.1 “means the periodic sum owed by the tenant for use or occupancy of the premises,” Slip Op. at 27, “but not the various other payments that the tenant may owe to the landlord from time to time, even if the lease characterizes them as ‘deemed rent’ or ‘additional rent.’”  Slip Op. at 28.  Ms. Lockett was, therefore, current on her rent at that time and was not ineligible for relief on her second claim for retaliation.  Notably, the Court did not consider whether the two alleged acts of retaliation were actually a single act of retaliation because it was not raised in the petition for certiorari.  Slip Op. at 31-32 n. 12.

Finally, the Court considered the circuit court’s denial of Ms. Lockett’s request for attorneys’ fees.  The circuit court denied the request in the following manner: “’[T]hat request is denied. The statute indicates that it’s permissive. The Court may enter judgment and the Court may award attorneys’ fees. So that request is denied.’”  Slip Op. at 14.  Maryland Rule 2-703(g) provides that: “The court shall state on the record or in a memorandum filed in the record the basis for its grant or denial of” the fee award.  Slip Op. at 28.  On remand, if Ms. Lockett prevails, the court would be required to state on the record the basis for its grant or denial of the fee award.  Slip Op. at 31.

http://www.mdcourts.gov/opinions/coa/2016/29a15.pdf

Business and Commercial Law – Successor Liability

Phillip Martin v. TWP Enterprises Inc., No. 1855, Sept. Term, 2014 (Md. Ct. Spec. App., Feb. 24, 2016).

http://www.mdcourts.gov/opinions/cosa/2016/1855s14.pdf

Phillip Martin entered into an employment contract with Best & Brady Components, LLC (“Best & Brady”) in 2010.  Best & Brady encountered financial difficulties and ran out of funds in 2011.  TWP Enterprises purchased Best & Brady’s assets shortly thereafter.  Slip Op. at 1.  TWP acquired all of Best & Brady’s assets and assumed certain specific liabilities.  Slip Op. at 9.  “Ultimately, TWP assumed $1,162,160.00 in liabilities, including approximately $300,000.00 owed to Martin as a trade creditor.”  Slip Op. at 9.  Upon acquiring the assets, TWP paid the $300,000 in unpaid receivables to Martin as a trade creditor but was unable to pay Martin the outstanding compensation owed to him under his employment contract.  Slip Op. at 28.

Martin sued Best & Brady for unpaid wages and compensation under the employment contract and also sued TWP for successor liability, alleging that it was a mere continuation of Best & Brady.  Martin ultimately obtained a default judgment against Best & Brady for $278,490.00 in damages and $11,064.24 in interest.  Slip Op. at 1, 11.  The issue of successor liability proceeded to a trial before the circuit court.  Slip Op. at 11-12.  In a bench trial, the circuit court concluded that TWP was not a “mere continuation” of Best & Brady and would not affix liability to TWP.  Slip Op. at 13.

On appeal, the Court of Special Appeals recognized the general rule that, where transfers were made in good faith and for fair consideration, “a corporation which acquires the assets of another corporation is not liable for the debts and liabilities of the predecessor corporation.”  Slip Op. at 16 (internal quotation marks omitted).  However, there are four exceptions to this general rule: where “(1) there is an expressed or implied assumption of liability; (2) the transaction amounts to a consolidation or merger; (3) the purchasing corporation is a mere continuation of the selling corporation; or (4) the transaction is entered into fraudulently to escape liability for debts.”  Slip Op. at 16-17.  “The gravamen of these exceptions is the protection of creditors’ rights upon a transfer of assets.”  Slip Op. at 17.  The issue here was the “mere continuation” exception.

The “mere continuation” exception serves to hold liable those acquiring corporations maintaining the same or similar management and ownership where it is “essentially the same corporate entity as the predecessor corporation.”  Slip Op. at 19-20.  “The exception is ‘designed to prevent a situation whereby the specific purpose of acquiring assets is to place those assets out of reach of the predecessor’s creditors.’”  Slip Op. at 20.  Upon analyzing the Maryland appellate decisions considering the “mere continuation” exception, the court distilled five factors to consider: “(1) any change in ownership and management, (2) the continued existence of the selling corporation, (3) the adequacy of consideration, (4) the transfer of any ‘instrumental’ employees from the predecessor to the successor, and (5) the purpose of the asset sale.”  Slip Op. at 27.  The courts consistently pay particular attention to the the adequacy of consideration but do not rely solely on it in their conclusions.  Slip Op. at 27-28.

Martin claimed that TWP was the “mere continuation” of Best & Brady because:

• TWP’s subsidiary, Truss, held 80% of the company’s stock;
• TWP continued to use the same trade name, “Best & Brady”;
• TWP continued to manufacture at the same plant;
• TWP retained the same employees and sold to the same customers;
• TWP increased its ownership in the company from 80% to 100%; and
• TWP retained the same management.

Slip Op. at 29.  The circuit court concluded that TWP was not a “mere continuation,” finding that:

Mr. Brady became an employee of TWP but not an owner; TWP continued to provide “back office” support; TWP no longer had an in-house sales staff for the roof truss business and relied on independent salesmen of which [Martin] was one; and Mr. Butcher no longer supervised the independent salesmen. The court concluded that, because both “before and after the asset sale” Best & Brady and TWP had “substantial overlap” in management, control, and ownership, such overlap was not determinative because “this is not an instance in which management of one stand-alone entity uses its authority merely to change ‘hats’ and manage a new stand-alone entity.”

Slip Op. at 29-30 (alteration in original).  Further, and importantly, the court concluded that the purpose of the asset sale was not to place them beyond Martin’s reach, but rather an attempt to salvage a failing business.  Slip Op. at 30.  Moreover, Best & Brady was never profitable, considered bankruptcy, attempted to increase revenues in various ways, cut salaries, and engaged in other attempts to improve before selling its assets to TWP.  Slip Op. at 30.  In fact, Martin himself benefited here because “TWP assumed nearly $1.2 million dollars of Best & Brady’s liabilities, including approximately $300,000.00 owed to Martin as a trade creditor.”  Slip Op. at 30.  Indeed, the court noted that the purpose of the “mere continuation” exception to the general rule against successor liability is to protect creditors.  Slip Op. at 31.  Although the asset transfer did not cover his employment contract, it did facilitate an approximately $300,000 payment to Martin as a trade creditor thereby affording him some level of protection.  Slip Op. at 31.  Importantly, the Court of Special Appeals also agreed with the trial court that assuming nearly $1.2 million dollars in liabilities for the assets acquired was “adequate consideration for the asset transfer.”  Slip Op. at 30-31.  Under the circumstances, the court concluded that TWP was not a “mere continuation” of Best & Brady to trigger the exception to the general rule against successor liability.

Civil Procedure – Spoliation of Evidence

Cumberland Insurance Group v. Delmarva Power, No. 72, Sept. Term, 2015 (Md. Ct. Spec. App., Feb. 1, 2016).

http://www.mdcourts.gov/opinions/cosa/2016/0072s15.pdf

On May 5, 2013 a fire broke out in the home of David Wickwire, which was insured by Cumberland Insurance Group (“Cumberland”).  Delmarva Power (“Delmarva”) was Wickwire’s electric company.  The local fire department put out the fire and Delmarva sent a lineman to disconnect the power to the house.  Cumberland inspected the property three days later, on May 8, 2013.  Cumberland again inspected the property on May 24, 2013.  The house and its contents were demolished on July 3, 2013.  It was undisputed that Delmarva knew of the fire on May 5, 2013 and that by May 29, 2013 it was aware that a claim may, at some point, be made against it.  After paying Wickwire’s claim, Cumberland sought subrogation from Delmarva.  However, due the destruction of the fire scene, Delmarva moved for summary judgment, which the trial court ultimately granted.

The court recognized that the Maryland Rules inherently provide the courts with authority to sanction a litigant for the destruction of discoverable evidence.  Slip Op. at 10.  The courts maintain that power, whether that authority is derived from the discovery sanctions rule or from their inherent powers.  The court has broad discretion to regulate this.  Slip Op. at 15.  Maryland Courts employ a four part test to determine whether spoliation occurred:

(1) An act of destruction;

(2) Discoverability of the evidence;

(3) An intent to destroy the evidence;

(4) Occurrence of the act at a time after suit has been filed, or, if before, at a time when the filing is fairly perceived as imminent.

Slip Op. at 11.

The Court of Special Appeals analyzed each part of the test and observed that in this case there was an act of destruction, the evidence was clearly discoverable, there was an intent to destroy the evidence (noting that demolishing the house was no mistake), and the demolition took place while suit was fairly perceived as imminent.  Slip Op. at 16.  In determining the appropriate sanction, the court noted the degree of fault to the spoliating party.  Where the fault on the part of the spoliator is greater, prejudice is less necessary to be shown.  On the other end of the spectrum, even where there is a lack of intent, if there is a high degree of prejudice, a more serious sanction is warranted.  Slip Op. at 12-13.  The court concluded that Delmarva, “and especially its experts, never had the opportunity affirmatively to rule in or rule out the other parts of the house as the area of origin, which irreparably prejudiced their ability to defend, and which made dismissal altogether appropriate.”  Slip Op. at 23.

On February 26, 2016, a coworker shot seventeen employees at a Kansas factory, three of whom were killed. While this was a high profile active shooting, unfortunately, it is not the only such workplace shooting.  As investigators piece together the motives for the murders, there is no question that there has been an alarming uptick of active shooting incidents in the U.S. over the past few years.

While the motivation and circumstances of the various incidents may vary, one often-cited factor in such events is mental illness. In this current environment of concerns about workplace shootings, employers might wonder if they can mitigate the likelihood of such an incident by screening employees and potential hires for mental disorders.

In this post, we will examine mental illness in the workplace and provide some helpful insights as to what employers can and cannot do to better serve their workforce.

Workplace Mental Illness Costs Employers

Before we take a closer look at screening employees for mental illness, we need to understand mental illness in more depth and how it affects the workplace.

First, the vast majority of individuals classified as mentally ill are not a threat. According to the National Alliance on Mental Illness (NAMI), 18.5 percent of adults in the U.S. – or 43.8 million people – experience mental illness in a given year. Furthermore, only 4.2 percent of the U.S. population – or approximately 10 million people – will experience a serious mental illness in a given year that substantially interferes with or limits one or more major life activities.

Even in situations where a crime is perpetrated by someone with mental illness, studies have shown that rarely is the mental illness linked to the criminal action. According to a 2014 study by the American Psychological Association, only 7.5 percent of crimes committed by perpetrators with a diagnosis of a serious mental illness were linked to their diagnosis. As the study’s lead researcher, Jillian Peterson, PhD, put it: “The vast majority of people with mental illness are not violent, not criminal and not dangerous.” 

While these facts support the assertion that mental illness is both prevalent and not typically linked to violent acts, employers may have good reason to conduct mental illness checks on their employees. According to the National Institute of Mental Health, providing mental health screenings for depression, and helping those employees, can have an impact on a company’s financials by increasing productivity and reducing costs. The same can be said about detection and early intervention programs related to alcoholism and drug use, which share a strong link with mental illness. In fact, according to NAMI, serious mental illness costs the U.S. economy more than $100 billion each year. 

In light of these facts, employers interested in conducting mental health screenings of employees should approach the topic from the standpoint that mental illness not only takes a toll on the afflicted but also on coworkers, customers and the company itself. The more assistance an employer can provide, the more that employer will be fostering a healthy and productive work environment for all. However, while it may appear at first blush that screenings and mental health assistance make common sense, the impact of disability discrimination laws must be considered.

Mental Health Screenings and the ADA

Companies that do wish to screen employees and potential hires for mental illness should deeply familiarize themselves with the Americans with Disabilities Act (ADA). This federal law affords the disabled, whether due to physical or mental impairment, protections that prevent and punish acts of discrimination in the workplace. Many states and localities have their own legislation that parallels the federal ADA. Make sure to also check your state laws as well to ensure compliance.

In regard to potential hires, the ADA prevents employers from asking questions about disability status during a pre-employment interview. Because serious mental illness is considered a protected disability under the ADA, employers should not conduct any type of screening for mental illness during the interview phase of the hiring process.

However, once a job offer is made, an employer can require a medical examination if it is a requirement for all entering employees. An employer can even request access to an incoming employee’s mental health records, but only if the employer makes the same request of all incoming employees. Failure to treat all incoming employees the same could lead to a claim of discrimination. Information learned from the disclosure of the health records may not be used to discriminate against an employee. The only time an employer can use such information to screen out an incoming employee is if the disability interferes with the requirements of the job and no reasonable accommodation can be made. A reasonable accommodation is a term used within the ADA to refer to a change in the work environment that allows someone with a disability to do his or her job. An example would be offering flexible work schedules to accommodate an ADA-protected employee’s doctor visits.   

For current employees, employers can request disability information only if it is job-related and consistent with business necessity. This means that there must be a reasonable basis that the employee is either unqualified for the job, requires a reasonable accommodation, or poses a direct threat to the health and safety of other employees.

To prove that an employee’s mental health causes a direct threat, employers must demonstrate that the employee poses a significant safety risk – one that cannot be eliminated or lessened by a reasonable accommodation. It also requires that an employer conduct an individualized assessment that relies on medical judgment. Mere suspicion is never enough to take an adverse action. 

So, both pre-employment screening and screening of existing employees without evidence that the employee presents a significant safety risk, could create significant liability for employers. What else can employers do in regard to mental health in the workplace?  

Evaluating Your Current Mental Health Programs

Besides conducting mental health screenings, there are a number of other tactics employers can take that prioritize an employee’s well-being while posing minimal legal exposure. For example, you can evaluate the healthcare services and wellness programs your company already has access to. Review your current mental health benefits offered by your insurance carrier and gauge if they are satisfactory in providing necessary assistance to your employees.

Next, ask your health insurance carrier questions about the behavioral health services offered through your company’s plan. What informational resources does your provider offer, such as online materials about mental illness or self-screening tools? If your employees do choose to seek behavioral health assistance, will they be connected to a provider trained in screening for mental illnesses, such as depression and anxiety? Upon receiving a diagnosis, do your employees have access to ongoing mental health services, including therapy as well as prescription medications? What resources are provided for employees struggling with alcohol or drug addiction?

In addition to evaluating your company’s health benefits, you might also want to look into implementing an employee assistance program (EAP). An EAP provides assistance to employees to help them cope with challenges that could affect their job performance and their well-being. EAPs can serve as an extra source of assistance for such issues as alcohol and drug abuse, work-related stress, and emotional distress.

Developing Additional Mental Health Programs

In addition to relying on health insurance and an EAP to provide services to employees who are suffering from mental illness, employers can do their part to develop their own programs to empower employees to seek the assistance they need.

One best practice is to develop an awareness program that educates employees on the types of mental illnesses and their symptoms. Such a program should be offered by a professional who has experience delivering mental illness awareness programs in workplace settings. In addition, any awareness program should provide employees with information about the company’s mental health resources and how to access them.

Employers should also consider enacting training programs for supervisors and managers that educate them on how to compliantly handle workplace issues that may involve an individual who is mentally ill. As mentioned earlier, mental illness can trigger the protections afforded under the ADA. Failure to comply with the ADA could result in a costly claim against your company.

GREENBELT, Md. – The law firm of Joseph, Greenwald & Laake filed a second civil lawsuit, this one a class action, on behalf of the victims of Deonte Carraway, a school employee-turned-volunteer at Judge Sylvania W. Woods Elementary School who was criminally charged with making pornographic videos of nine and 10-year-old students. The school’s principal, Michelle Williams, is also named as a defendant because she “took no action” despite concerns being raised to her about Carraway by parents and teachers.

“Principals, teachers, employees and school boards are entrusted with the safety of students when they are on school grounds,” said Timothy F. Maloney, the lead plaintiffs’ attorney for these lawsuits. “There are numerous reports that the principal knew of criminal actions against the students of her school and repeatedly did nothing to help them or report this terrible misconduct,” Maloney added.

Maloney reports that students were assaulted throughout the school, including in the auditorium and bathrooms. He also said that victims were also abused outside of the school grounds, including at the Glenarden City Hall.

“As we continue to investigate the devastating breadth of this case, we encourage the parents of these victims and witnesses to come forward,” Maloney said. “The State’s Attorney’s office has confirmed 17 victims, but there could be more.” Maloney added.

Parents and caretakers of victims who would like to learn more about the lawsuits should call 301-220-2200 or email sylvaniawoods@jgllaw.com.

For more than 40 years, Joseph, Greenwald & Laake, P.A. is one of the most trusted law firms serving Maryland, the District of Columbia and Virginia. Known for its commitment to community, confidence and character, Joseph, Greenwald & Laake is the leader in bringing suits against local governments and school systems. The firm represents a variety of clients, including victims, individuals, small businesses and multimillion-dollar corporations. From simple to complex legal needs, the firm is prepared to deliver strategic solutions with high standards. More information is available at http://www.sylvaniawoodsclaims.com.

More than 9,000 Victims Affected by Illegal Kickback Scheme

In U.S. District Court for the District of Maryland, Joseph, Greenwald & Laake, PA and Smith, Gildea & Schmidt, LLC filed a Motion to Approve the Settlement for the amount of $16.2 million on behalf of more than 9,000 consumers alleged to be victims of an illegal kickback scheme involving Genuine Title of Owings Mills, Maryland.

The lawsuit alleged that from 2009 through early 2014, Genuine Title provided kickbacks to Wells Fargo licensed mortgage brokers in exchange for referring borrowers to Genuine Title for title insurance and settlement services. Approximately 9,500 loans originated by the defendant, Wells Fargo, were involved in this settlement. Wells Fargo is responsible for the payment of settlement funds, which will be awarded within 90 days after finality of the settlement.

“Clients at the settlement table had no way of knowing about these kickbacks,” said Timothy Maloney, a principal with Joseph Greenwald & Laake, PA who represented the plaintiffs in this case along with Michael Paul Smith, from Smith, Gildea & Schmidt, LLC. “We are happy this lawsuit brought these practices to light and that we have been able to obtain a significant recovery for consumers of title services.”

Wells Fargo is the first lender to settle in the Genuine Title lawsuits. Joseph, Greenwald & Laake and Smith, Gildea & Schmidt currently have cases against nine banks/mortgage companies, Genuine Title and three of its sham marketing companies.

“It is gratifying to help those who were victimized unknowingly by Genuine Title. These types of back-room deals have no business in the real estate industry,” said Smith, from Smith, Gildea & Schmidt, LLC.

For more information on this case or other litigation matters, please contact Timothy Maloney at tmaloney@jgllaw.com or Veronica Nannis at vnannis@jgllaw.com.

David Bulitt and Rama Taib-Lopez recently addressed modern family law issues in an article they authored for the Daily Record’s Maryland Family Law Update. Entitled Commentary: Obergefell’s far-reaching impact on family law issues involving same-sex couples, the article discusses recent cases where same-sex couples face legal challenges resulting from divorce, including adoption, custody and visitation.

The law’s recognition of same-sex marriages following the U.S. Supreme Court’s ruling in June of 2015, has led to various scenarios that were previously not addressed in family law. Citing a same-sex divorce case, Conover v. Conover, where child visitation was in dispute, Bulitt and Taib-Lopez examine the legal implications of issues resulting from same-sex marriages and divorces. “In the era of marriage equality, Frosh’s opinion, followed by the evocations in Conover v. Conover, reflects the next wave in the area of law surrounding same-sex marriages founded on the principle of equal treatment in all aspects of marriage.”

As we move forward toward equal treatment under the law, the authors agree, “there is still much work to be done, adjusting the laws and adapting how the laws are applied, to accommodate all family types. But, as Nazarian so aptly stated, ‘We have to start somewhere.’”

For more information on family law matters, including divorce, child custody and visitation, contact David Bulitt at dbulitt@jgllaw.com or Rama Taib-Lopez at rtaiblopez@jgllaw.com.

Joseph, Greenwald & Laake, P.A. is pleased to announce that attorneys Matthew M. Bryant and Eleanor A. Hunt have been elevated to senior counsel at the firm.

“We are thrilled to recognize Matthew and Eleanor’s professional development and contributions to our firm,” said David Bulitt, assistant managing director of the firm.

Bryant has represented clients in matters involving employment disputes, professional licensing, civil rights violations and criminal defense. He also has an active appellate practice. Prior to joining the firm, Bryant clerked for the Honorable Kathryn Grill Graeff of the Maryland Court of Special Appeals and the Honorable Michele D. Jaklitsch of the Circuit Court for Anne Arundel County.

Bryant earned his law degree from the University of Maryland School of Law and holds an A.B., magna cum laude, from Kenyon College.

Hunt, a member of the firm’s Family Law practice, represents clients in divorces, adoptions, child custody and visitation disputes, domestic violence proceedings, and child and spousal support matters. Previously, she practiced as a transactional real estate attorney, working on residential real estate settlements, advising homeowners’ associations and condo associations, and drafting residential real estate contracts and leases.

Hunt holds a law degree from The George Washington University Law School and a B.A. from St. Mary’s College of Maryland.

JGL employment attorney, Brian Markovitz, spoke to Fox News yesterday regarding a recent religious and military discrimination case involving a DC police officer. As a practicing catholic and former marine, Officer Joe Tridico was subjected to daily harassment from his co-workers and superiors.

Representing Tridico, Markovitz describes the workplace harassment his client endured while serving in the Washington DC police’s Sixth District department. After praying and making the sign of the cross one day before lunch, he was subsequently mocked by his sergeant who shouted, “Look at him. That’s why he’s so weird. He believes in that weirdo Jesus sh%^.” Markovitz explains that the name calling “morphed itself into a nickname for him, which became ‘weirdo’ and they just continually called him that, and that was a direct reference to his faith and it was triggered by him praying.”

The workplace harassment persisted and “at one point, they hung up a picture of the Pope, John Paul II, right next to his desk and put the word ‘weirdo’ over it” said Markovitz.

The jury found that Tridico was retaliated against by the Sixth District department after reporting the harassment to his superiors. As Markovitz explains, “they essentially didn’t do anything to help him, and what they did eventually is they transferred him to another unit and left the individuals who were harassing him in place.”

Officer Tridico was awarded $20,000 and “was very pleased.  He’s glad he got some vindication,” said Markovitz. 

Since leaving the Sixth District department, Tridico has been transferred and promoted. He now serves in the Third District detective unit.

If you have filed for custody and/or divorce in Maryland, you’ve likely heard the term Best Interest Attorney. In fact, at your initial conference with the Court, the Magistrate conducting the conference may ask you if your case requires any “services.” That is court-speak for the appointment of a Custody Evaluator, Best Interest Attorney or Child Privilege Attorney. As such, you may want to familiarize yourself with the role of a Best Interest Attorney and his or her role in representing your child(ren).

Pursuant to Md. Ann. Code, Family Law Art. § 1–202, in actions concerning a minor child’s custody, visitation, or child support, “the court may: (1) appoint to represent the minor child counsel who may not represent any party to the action; and (2) impose against either or both parents counsel fees.” The appointed attorney may fill various roles, including reporting the children’s preferences to the court, investigating the reasons for the children’s preferences, and making an independent determination of their best interests. See Leary v. Leary, 91 Md. App. 26, 40, 627 A.2d 30 (1993).

One of the rationales for appointing an attorney for children is that they may become “pawns” in their parents’ fight to prevail on issues such as custody, visitation, or child support. See Lapides v. Lapides, 50 Md.App. 248, 250, 437 A.2d 251 (1981). The legislature has vested in trial judges the authority to appoint attorneys, or guardians ad litem, to serve the crucial function of representing children’s rights and interests in their parents’ custody disputes. See Md. Ann. Code, Family Law Art. § 1–202. In another decision, the Court of Appeals (the highest appellate court in Maryland) explained that this is rooted in ensuring the best interest of the child:

In resolving custody disputes, we are “governed by what is in the best interest of the particular child and most conducive to his welfare. This best interest standard is firmly entrenched in Maryland and is deemed to be of transcendent importance.” Ross v. Hoffman, 280 Md. 172, 174–75, 372 A.2d 582, 585 (1977) (footnote omitted). Keeping in mind “the best interest of the child,” we believe the appointment of an attorney to act as the guardian of the child in the instant matter is required. Furthermore, the appointment of a neutral third party would eliminate the very real possibility, as may exist in this case, of one of two warring parents exercising the power of veto for reasons unconnected to the polestar rule of “the best interests of the child.”

Nagle v. Hooks, 296 Md. 123, 128, 460 A.2d 49, 51 (1983) (footnote omitted).

“Thus, it has become the policy of this State, as enunciated in Nagle, that, when the parents are involved in a custody dispute and the child requires representation, the ‘best interest of the child’ may require appointment of a neutral attorney to act as the child’s guardian.” Auclair v. Auclair, 127 Md. App. 1, 16, 730 A.2d 1260, 1268 (1999) abrogated on other grounds by Fox v. Wills, 390 Md. 620, 890 A.2d 726 (2006).

In determining whether to appoint counsel, Maryland Rule 9-205.1(b) “Appointment of Child’s Counsel” states:

(b) Factors. In determining whether to appoint child’s counsel, the court should consider the nature of the potential evidence to be presented, other available methods of obtaining information, including social service investigations and evaluations by mental health professionals, and available resources for payment. Appointment may be most appropriate in cases involving the following factors, allegations, or concerns:

(1) request of one or both parties;

(2) high level of conflict;

(3) inappropriate adult influence or manipulation;

(4) past or current child abuse or neglect;

(5) past or current mental health problems of the child or party;

(6) special physical, educational, or mental health needs of the child that require investigation or advocacy;

(7) actual or threatened family violence;

(8) alcohol or other substance abuse;

(9) consideration of terminating or suspending parenting time or awarding custody or visitation to a non-parent;

(10) relocation that substantially reduces the child’s time with a parent, sibling, or both; or

(11) any other factor that the court considers relevant.
[…]

In Garg v. Garg,[1] the Court of Special Appeals discussed the importance of appointing counsel for the minor child:

The relevance of the child’s position and the fundamental importance of counsel’s role are underscored by the function of the child’s counsel in an acrimonious custody dispute. To that end, Md.Code, F.L. § 1–202 authorizes the circuit court to appoint counsel for a child to provide the court with an “independent analysis” of the child’s position. John O. v. Jane O., 90 Md.App. 406, 436, 601 A.2d 149 (1992). Indeed, “[t]he purpose of § 1–202 is to afford the court an opportunity to hear from someone who will speak on behalf of the child.” Id. at 435–36, 601 A.2d 149 (citation and internal quotation marks omitted). The statute thus recognizes that the interests and positions of the parents in these cases are not necessarily congruent with those of the children, and that the child is entitled to an advocate who will champion the child’s position. See Levitt v. Levitt, 79 Md.App. 394, 403–04, 556 A.2d 1162 (concluding that trial court should have appointed counsel for child in custody modification proceeding, although no party had apparently ever moved for appointment of counsel), cert. denied, 316 Md. 549, 560 A.2d 1118 (1989).

To be sure, [the child] was not a casual bystander in these proceedings. Yet, without the presence of counsel, his voice was not clearly heard. …

Given that [the child] will be profoundly affected by the outcome of the case, fundamental fairness suggests that he should have had a lawyer to articulate his interest and to assist on the critical and complex issues that were determinative of his future. Because [the child’s] interests were not represented below, and the outcome of the case will have a colossal impact on his life and that of his parents, we cannot overlook the failure to appoint counsel for him.

Garg v. Garg, 163 Md. App. 546, 577-78, 881 A.2d 1180, 1198 (2005) rev’d, 393 Md. 225, 900 A.2d 739 (2006) (bold emphasis added) (first alteration in original).

Many times, where there is a highly contested custody dispute, the best interests of the children require appointment of a neutral attorney to act as the child’s guardian and represent their rights and interests. See Auclair v. Auclair, 127 Md. App. 1, 16, 730 A.2d 1260 (1999). In Auclair, a guardian ad litem was appointed to represent the minor children in their parent’s contested divorce. While many parents may lobby to gain the Best Interest Attorney’s favor or his or her ultimate recommendation, the appointment of a best interest attorney is solely for the child’s benefit and support. In re Blaemire, 229 B.R. 665 (D. Md. 1999).

It is never ideal to have children testify. The Court’s appointment of a Best Interest Attorney can meet the objective of considering the children’s preferences without subjecting the child(ren) to the scrutiny of being in court or the later ramifications of believing they may have played a part in the dissolution of their family.

David Bulitt, Esquire is a principal in this firm’s Family Law Group and is often appointed by the Judges of the Circuit Court to represent children. David is an excellent resource to attorneys and colleagues who have further questions regarding Best Interest Attorneys and their role in representing children.

Timothy F. Maloney was recently quoted as an expert source in a Washington Post article regarding the Freddie Gray case. The issue relates to Baltimore police officer William G. Porter being called as a prosecution witness against fellow officers Caesar R. Goodson Jr. and Alicia D. White while awaiting a retrial on charges of involuntary manslaughter. Porter was offered limited immunity for his testimony, which his lawyers say cannot be enforced.

“Maryland lawyer Timothy Maloney said he does not see how Goodson’s trial could move forward with Porter as a witness until judges consider an appeal. Maloney was a member of a commission reviewing the state’s criminal code in the 1980s and raised questions about the constitutionality of the type of immunity prosecutors are offering to compel Porter’s testimony.”

“There are real questions with the enforceability of that promise,” Maloney said of the proposed immunity. “It is a very important question, and it is one that has to be litigated now or never . . . because once he testifies, he loses his right to remain silent.”

Maloney said “transactional immunity,” which is broader, would be more appropriate but would prevent prosecutors from retrying Porter.