Author: JGL Law

  On April 14, 2014, Governor Martin O’Malley signed two bills that usher in a change for marijuana laws in Maryland. The first, Senate Bill 364, goes into effect on October 1st and decriminalizes the possession of marijuana. Under SB 364, a person cannot be criminally charged for possession of less than 10 grams of marijuana, instead they will face civil fines as follows:

• first-time offenders will face fines up to $100
• second-time offenders will be punishable with a fine up to $250; and
• subsequent offenders will face fines up to $500

The bill also requires third-time offenders or offenders under the age of 21 to be evaluated for substance abuse problems, and to attend drug education classes. Importantly, though possession of marijuana has been decriminalized the possession of paraphernalia remains illegal. Two weeks prior to SB 364 reaching the Governor’s desk, the House of Delegates voted 78-55 to pass the legislation. On April 7, 2014 the Senate followed suit, approving the measure 34-8. The second bill, House Bill 881, goes into effect on June 1 and allows qualified patients who obtain authorization from certain state-approved physicians to purchase marijuana from licensed medical marijuana treatment centers. These qualified patients will also be protected from arrest and prosecution of marijuana possession charges. Maryland has incrementally loosened restrictions regarding medical marijuana over the past decade. In 2003, it adopted the Darrel Putnam Compassionate Use Act, which allowed defendants charged with possession of one ounce or less of marijuana to assert an affirmative defense of medical necessity. If successful, the defendant would not face any penalty. That law, however, did not prevent patients from being arrested, prosecuted, or having to pay a fine, even if a defendant could prove they were a qualified patient. Last year, Maryland passed HB 1101 which established “Academic Medical Centers” to supply marijuana to patients. This program was contingent on hospitals approved to conduct medical marijuana research agreeing to join the program and supply cannabis to patients. HB 1101 was largely viewed as a failure because no medical facility actually joined the program. In contrast to the legislation passed in 2003 and 2013, SB 364 and HB 881 significantly liberalize marijuana laws in the state. Maryland joins a dozen other states that have legalized or decriminalized marijuana to some extent, although Maryland has not caught up to Colorado’s pot vending machines. Nevertheless, the possession of marijuana remains illegal under federal law. In Gonzales v. Raich, 545 U.S. 1, (2005), the Supreme Court held in a 6-3 decision that under the Commerce Clause of the United States Constitution the federal government could prohibit the use of marijuana, including for medicinal use, even if it was allowed by state law. Because the federal government still has marijuana prohibition on the books, Marylanders, otherwise acting legally under state law, can still face federal enforcement and associated criminal penalties.

On April 8, 2014, President Barack Obama signed an Executive Order prohibiting federal government contractors from retaliating against employees for disclosing their own or other employees’ salary information. This post will explore the implications of this new Executive Order for federal contractors and their employees.

What is the purpose of the new Executive Order?

Many employers, including government contractors, prohibit their employees from discussing or disclosing salary and compensation information with one another. Such policies often make good business sense from an employer’s perspective by giving employers freedom to compensate employees as they see fit without creating tension and dissention among employees regarding their salaries. However, these policies also make it more difficult for employees and the federal government to detect discrimination.

Current federal law, the Equal Pay Act of 1963 and the Lilly Ledbetter Fair Pay Act of 2009, prohibits employers from discriminating against employees in the payment of wages on the basis of their sex. Federal law also prohibits any form of discrimination on the basis of race, color, religion, sex (pregnancy), national origin,[1] disability[2], and age[3]. These laws can be difficult to enforce if employers have policies prohibiting employees from disclosing salary and compensation information to each other, as many employers do. As explained in the Executive Order, “[w]hen employees are prohibited from inquiring about, disclosing, or discussing their compensation with fellow workers, compensation discrimination is much more difficult to discover and remediate, and more likely to persist.”

The purpose of this Executive Order is to prohibit federal contractors from terminating or taking other adverse actions against employees for disclosing salary and compensation information, with the goal of expanding enforcement of federal equal pay and anti-discrimination laws.

How will the new Executive Order affect federal contractors?

The President’s Executive Order amends the longstanding Executive Order 11246. EO 11246 was first enacted by President Lyndon Johnson in 1965 on the heels of the Civil Rights Act of 1964 in an effort to eradicate discrimination by federal contractors. EO 11246 is implemented through the Federal Acquisition Regulation (FAR), a set of federal regulations that govern all aspects of federal contracting.

EO 11246 currently requires that federal contracts include, among other things, provisions mandating that “the contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin,” and requiring contractors to take certain affirmative actions to prevent discrimination. The new Executive Order amends EO 11246 to add the following provision: “The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant.”

Contractors and employees of contractors will want to take note of several important aspects of this new law:

• It applies not only to current employees, but also to applicants for employment;
• It allows employees and applicants to inquire about, discuss, or disclose their own compensation information;
• It also allows employees and applicants to inquire about, discuss, or disclose the compensation information of other employees or applicants;
• It prohibits employers from terminating or “discriminating” against employees and applicants because they inquired about, discussed, or disclosed compensation information, effectively precluding standard employer policies that prohibit employees from disclosing their compensation information to one another;
• It contains an exception for employees who have access to compensation information as part of their duties; employers may still prohibit these employees—such as accounting and human resources personnel—from disclosing compensation information, unless it is done as part of an EEO complaint process or investigation.

Does the new Executive Order apply to all federal contracts and contractors?

Generally, the required EEO provisions must be incorporated into all prime and subcontracts valued at more than $10,000. The FAR provides that this requirement does not apply directly to contracts of less than $10,000. However, if the aggregate value of all of a contractor’s prime and subcontracts during the last 12 months exceeds $10,000, the required EEO provisions must be incorporated into the contract. It is anticipated that, since the new Executive Order amends EO 11246, the $10,000 requirement will apply to it as well.

Under the FAR, there are other exemptions from the requirement to include EEO provisions in a contract. Any contractor with questions about whether EEO provisions must be included in a contract, or whether an exemption applies, should consult with counsel.

What happens if a federal contractor violates provisions of the new Executive Order?

The Secretary of Labor has authority to enforce the provisions of EO 11246. A contractor who violates EEO provisions in a contract can be subject to a variety of sanctions. Under the FAR, the Secretary of Labor has discretion to publish the name of the contractor, report violations to the EEOC or Department of Justice for investigation and further proceedings, and in egregious cases direct that the contract be cancelled or even that the contractor be prohibited from entering into further contracts.

What rights does an employee have if a federal contractor violates provisions of the new Executive Order?

EO 11246 does not necessarily provide an employee with a direct cause of action. If a contractor violates the new Executive Order by terminating or retaliating against an employee for inquiring about, discussing, or disclosing compensation information, the employee can make a complaint to the Secretary of Labor. Beyond that, the employee may have a claim against the contractor for violation of federal equal pay or anti-discrimination laws. Any employee who believes his or her rights have been violated should consult with an attorney immediately.

When does the new Executive Order take effect?

Although the new Executive Order itself took immediate effect, its provisions do not apply to current contracts. The Executive Order directs the Secretary of Labor to propose regulations to implement the Order within 160 days. The provisions of the Executive Order will apply to contracts entered into after the effective date of those regulations.

“Death of the fraudster” by Georg Auer Hohensalzburg

Are you a Marylander?

Do you want your hard earned tax money going to companies who are defrauding the Maryland state government?

Probably not.

But, if you don’t mind companies who contract with the Maryland state government who fraudulently take taxpayer funds, then Monday, April 7, 2014, the last day of the legislative session, was a great day for you.

On that day, the Maryland False Claims Act Amendment, HB 867, which passed the Maryland House of Delegates, was just about to make it through to a final vote on the Maryland Senate floor when it was postponed.  This delay killed the bill for another year.  This postponement was evidently orchestrated in last minute, backroom deals that are the all-too-familiar, stereotypical control of our country’s legislative bodies by special interest groups.

Currently, Maryland law only covers fraudulently taken health care funds, such as Medicaid.  This allows the state to recover illegally taken health care funds and subjects healthcare contractors who fraudulently obtain Maryland funds to penalties and damages.  House Bill 867’s enactment would have allowed the state to recover and penalize fraud on all of Maryland’s funds in the same manner, not just healthcare.

In theory, everyone should be against fraud.  Pope Francis, for instance, recently took a seriously hardline on people who steal from the government, implying by quoting Jesus that they be thrown in the sea with a stone around their neck.  President Abraham Lincoln came up with the idea for the federal law (aka “Lincoln’s Law”) in 1863 that House Bill 867 essentially duplicated.  The Federal False Claims Act even has bipartisan support in Congress, a rarity today.  So, what could be wrong with treating fraudulent non-healthcare contractors like fraudulent healthcare contractors?  Somehow stopping the stealing of taxpayer money is bad for business. Of course, this is true if your business is illegally obtaining and performing contracts with the State of Maryland.

What opponent groups fail to explain is that unreported and unrecovered fraud hurts, not only taxpayers, but honest businesses too who are at a competitive disadvantage by following the law.  As Jonathan Swift wrote in Gulliver’s Travels:

They [the Lilliputians] look upon fraud as a greater crime than theft, and therefore seldom fail to punish it with death; for they allege that care and vigilance, with a very common understanding, may preserve a man’s goods from thieves, but honesty has no defence against superior cunning; and, since it is necessary that there should be a perpetual intercourse of buying and selling, and dealing upon credit, where fraud is permitted and connived at, or has no law to punish it, the honest dealer is always undone, and the knave gets the advantage.

In Gulliver’s Travels, Lemuel Gulliver explains that he tried to defend a Lilliputian’s fraudulent actions to the state (“the emperor”) but realizing that there was no legitimate defense felt “heartily ashamed.”  While we can expect no such self-reflection by the special interests who support and are funded by the “knaves,” hopefully, the average citizen, like the little Lilliputians can make a push to enact a “law to punish” fraud next session.

Click here to get your state senator’s contact information. To see if they voted to kill the bill (a “yea” being bad), go here.

  Most people have car insurance and health insurance.  Some people even have pet insurance!  If you own property, you most likely have homeowner’s insurance.  But how many people have title insurance and/or even know what it covers? If you own real property (real estate) or plan to purchase real property in the future, you will inevitably be asked if you want to get title insurance.  However, most purchasers have no idea what title insurance is or how it benefits them even though the purchase of a home or other type of real property is probably going to be the largest purchase in their life! When you purchase real property with a lender, they will require a Lender’s Title Policy to insure certain coverage for their loan for the transaction. You may think that the Lender’s Title Policy will cover you if a claim arises, but it doesn’t.  The Lender’s Title Policy insures ONLY the Lender and it insures only that the mortgage is a valid lien, only subject to certain priorities that the Lender has seen and agreed to. An Owner’s Title Policy is offered as an option at settlement.  It is a one-time payment which provides the Owner with certain coverage and protection regarding the Real Property. Title insurance is a way to protect yourself against possible problems regarding your rights to ownership of your property arising out of events that have happened during prior ownership of the property. It may also  help to cover the cost of defending any claims that may arise after settlement.  When you purchase a piece of real estate, you are not only purchasing the physical property itself, but also all of the prior owners’ and sellers’ rights and interests in the property, which may not be 100%.  Prior to settlement, the title company will try to determine the various rights and interest that are attached to that particular property.  There are three main types of rights and interests: 1.  Rights and interests that are recorded in public records, like deeds and mortgages. 2.  Rights and interests that are not recorded in public records but which exist by law through statutes, like mechanics liens, taxes and assessments. 3.  Rights and interests that are hidden, like unknown heirs of an estate and forgeries of critical documents in the title chain. Even the most diligent title examiner may not uncover all of the “hidden” defects in title, thereby leaving you exposed and at risk of financial loss or worse, losing your home or investment.  That is a scary thought! The most common title claims arise in the form of the third version: rights and interests which are hidden.  Consider the following scenarios:

• You arrive at settlement to finalize the purchase of a home from Mr. & Mrs. Seller.  After settlement, the real Mrs. Seller claims that her name was forged; she never agreed to nor had knowledge of the transaction and therefore still owns the property.  If you don’t have title insurance and Mrs. Seller’s claims are true, you may actually own only Mr. Seller’s interest in the property.  If the entire transaction is found to be fraudulent, you may lose your entire ownership of the property.  If you had purchased title insurance, the title insurance company might negotiate with the real Mrs. Seller and reach a settlement so that you could remain in your new home.

• Mr. Decedent owned a piece of real property and no Will can be found at the time of his death.  Mr. Personal Representative sells the piece of real property to you on behalf of Mr. Decedent’s heirs at law; his three children, A, B and C.  After settlement, a valid Will for Mr. Decedent is found stating that the real property has been specifically devised to Mr. Decedent’s good friend, Mr. Neighbor.  Mr. Neighbor now sues you, claiming that he is the true and rightful owner of the property.  If you had purchased title insurance, the cost of defending the claim made by Mr. Neighbor could be covered as well as any financial loss that you may incur.

• You have now decided to build your dream home.  However, the builder didn’t pay the roofer and now the roofer wants his payment, so he files a lien against the property.  Without a title search alerting you to this lien, and an owner’s policy protecting you, you would become responsible for paying this debt— meaning you’d be paying the roofer instead of purchasing new living room furniture.  If you had purchased an Owner’s Title Policy, the insurance company likely would have relieved you from paying that bill.

• After a months-long search, you finally find your family’s dream home—in a safe neighborhood with a great school district, and a big backyard for the swimming pool you plan to build.  You move in and hire a contractor to build the pool, but a few days into construction the contractor finds an underground utility line running right through the middle of your backyard.  You check your owner’s policy of title insurance, and find out that the title search did not discover this easement. Due to the fact that you had obtained an owner’s policy, your title insurance company may pay to have the underground utility relocated so you can build your swimming pool.

These are just a couple of instances where not purchasing title insurance may cost you in the long run.  Having an Owner’s Title Policy will provide protection against ownership challenges, errors or omissions in deeds, mistakes in examining records, missed liens, forgery and undisclosed heirs, among other things. What about the extra cost?  It’s not as much as you think!  Title insurance is only a one-time premium paid at settlement and is based on the purchase price of the property.  The protection of the title insurance continues for as long as you OR your heirs own the property. So the real question isn’t how much does title insurance cost; it is how much could it cost me if I don’t have title insurance?    

On March 5, 2014, the Maryland Senate passed SB212 (2014), historic legislation providing the protections of Maryland’s employment, public accommodations, and housing anti-discrimination laws to transgender persons. Passing by a vote of 32-15 in the Senate, the bill reportedly passed with the largest margin ever for an LGBT-rights bill in Maryland.

[i]The bill, introduced as The Fairness for All Marylanders Act of 2014, faced what many considered to be its greatest challenge in the Senate Judicial Proceeding’s committee, where it ultimately passed by a vote of 8-3 on February 20, 2014.[ii] On the heels of the Maryland Senate’s vote in favor of protecting transgender individuals from employment discrimination, the absence of such a provision in the Prince George’s County Code highlights an increasingly glaring omission for the County’s employees and residents.

What does the bill do?

SB 212 (2014) proposes to amend current prohibitions on discrimination in employment, housing, and public accommodations on the basis of race, color, religion, sex, disability, marital status, and sexual orientation under State law by including gender identity, and therefore transgender individuals, as a protected status.

The first reading of SB 212 (2014) defined “gender identity” as a “gender related identity, appearance, expression, or behavior of an individual regardless of the individual’s assigned sex at birth.” Opponents raised objections to the bill based on proposed hypotheticals suggesting that transgender people would be able to use restrooms consistent with their gender identities, as opposed to their assigned sexes at birth, creating uncomfortable and potentially unsafe environments.[iii]

Advocates have argued that to the contrary, transgender people are in fact in greater need of anti- harassment and anti- discrimination laws. The National Center for Transgender Equality and the National Gay and Lesbian Task Force found that transgender and gender non-conforming people suffer greater rates of unemployment, homelessness, and harassment than found in the general population.[iv]

Senator Getty’s amendment addressing these concerns is credited for the Act’s passing. The amendment narrows the definition of “gender identity.” It, too, was adopted by the Senate. In addition to the proposed definition for “gender identity” stated in the first reading of the bill, as adopted with amendments, SB 212(2014) provides that a person’s gender identity:

 may be demonstrated by either consistent and uniform assertion of the person’s gender identity or any other evidence that the gender identity is sincerely held as part of theperson’s core identity.

 If the Fairness for All Marylanders Act of 2014 passes the House and is signed into law by Governor O’Malley, Maryland will become the 18^th state in addition to Washington, DC that extends its anti-discrimination statutes to transgender persons.

How would SB212(2014) affect employees in Prince George’s County?

 Significantly, Md. Code State Gov’t §20-1202 provides an independent civil cause of action for discrimination under the Howard County, Montgomery County, or Prince George’s County codes in addition to the civil cause of action provided for violations of the State’s anti-discrimination statutes.[v] Likewise, Md. Code State Gov’t §20-1203 authorizes a civil action for violations of Baltimore County’s anti-discrimination laws arising under the Baltimore County code.  Distinct from the civil cause of action a complainant can raise under State Gov’t § 12-1013 for violations of the state’s anti-discrimination laws, §20-1202 and §20-1203 provide for the award of attorney’s fees and are not limited by any caps on damages.

Yet, as the General Assembly takes one step toward equal protection of civil rights for all Marylanders,  examination of each of the county codes that serve as the basis of legislatively authorized civil claims reveals that the protections sought by SB 212(2014)’s advocates are absent from Prince George’s County anti-discrimination ordinances. The Montgomery County Council modified its county code to include anti-discrimination protections for transgender people in 2007;[vi] Howard County followed in 2011;[vii] and Baltimore County amended its Code to include gender identity as a protected status in 2012.[viii] Each of the counties whose codes prohibit discrimination on the basis of gender identity therefore entitle a complainant to file a civil claim on that basis under the county code under the authority of State Gov’t §20-1202 or 1203. If SB 212 (2014) is signed into law, transgender individuals in Montgomery, Howard, and Baltimore Counties would also be able to file an additional civil claim for employment discrimination on the basis of gender identity under the State’s proposed anti-discrimination law, as well.

However, at present, there are no protections for gender-identity or expression or for transgender persons under the existing Prince George’s County ordinances prohibiting discrimination in employment , housing, residential real estate, law enforcement, education, financial lending, and public accommodations.[ix] Section 2-186 of the Prince George’s County Code defines discrimination as an act or failure to act or delay of any action regarding a person “because of race, religion, color, sex, national origin, age (except as required by State or federal law), occupation, familial status, marital status, political opinion, personal appearance, sexual orientation, or physical or mental handicap….” In so doing, Prince George’s County provides protections from discrimination in arguably the broadest scope, at least relative to its sister counties whose employees and residents are entitled to enforce anti-discrimination ordinances by filing civil claims in court.

If SB212(2014) is enacted into law, transgender employees in Prince George’s County would be entitled to file administrative charges of discrimination and lawsuits on the basis of their gender identities for a violation of the State law, but not for any violation of the Prince George’s County Code. As a result, transgender individuals filing claims of employment discrimination in Prince George’s County could be left with an incomplete remedy not equal to that otherwise enjoyed by successful complainants of employment discrimination under the county code on any other basis: without protection under the county code, transgender individuals in Prince George’s County would be deprived of the benefit of attorney’s fees and would further be subject to the limitations of the damages caps provided under State Gov’t §20-1009.

The actions of Howard, Montgomery, and Baltimore Counties appear to lay the foundation for a growing trend favoring equal protection of anti-discrimination laws for transgender employees.  No matter the outcome of SB212 (2014) at the end of this legislative session, Prince George’s County should take note of this absence in its County Code. If The Fairness for All Marylanders Act of 2014 passes, the absence of gender identity as a protected status from the Prince George’s County Code creates a gap in the remedies potentially available to transgender individuals that is not apparent for any other employment discrimination complainants.

Photo credits: http://www.davidmixner.com/2012/10/new-marriage-equality-poll-on-maryland-ballot-measure.html and  http://www.ohchr.org/EN/Issues/Discrimination/Pages/LGBT.aspx

When two parties divorce (or seek custody of children), often one or both of the parties will seek child support and/or alimony. Sometimes one of the parties has been unemployed (particularly with a stay at home mother) or under-employed. But now, you will have two households, two sets of entirely separate living expenses, and additional costs – based on the salary and incomes you had while living together.

Adding to the already-frustrating multitude of complexities custody or divorce litigation involves, in many cases the unemployed or underemployed party feels indignant that he or she should change his or her lifestyle and now contribute to expenses for the household. Particularly if he or she feels that the other party was the cause of the break up.

You’ve likely seen War of the Roses with Michael Douglas, Kathleen Turner and Danny Devito. Imagine what happens when, on top of the anger and disdain for one another that already exists, the lying, cheating, philandering no good, soon-to-be-ex-spouse, tells you – “Tough luck, you need to get a job!”

Maryland Law is clear. If one parent is capable of earning an income and contributing to the support of the minor child(ren), he or she is required to do so by law under Maryland Ann., Code, F.L. Art. § 5-203(b)(1) (stating that “[t]he parents of a minor child . . . are jointly and severally responsible for the child’s support, care, nurture, welfare, and education”). The Courts have, likewise, upheld this requirement in divorce and custody cases.[1]

For example, a mother who has stayed at home for 10 years raising children may claim that she lacks marketable job skills. However, a word to the wise, “the court may impute income to a party if that party is capable of earning more income than he or she is earning at the time of the divorce.” Brewer v. Brewer, 156 Md. App. 77, 121, 846 A.2d 1 (2004)[2]

In order for the Court to determine whether a party is “voluntarily impoverished,” the Court must find that a party has “reduced his or her level of income to avoid paying support by quitting, retiring or changing jobs.” Goldberger v. Goldberger, 96 Md. App. 313, 326, 624 A.2d 1328, 1330 (1993).

In Wills v. Jones, 340 Md. 480, 667 A.2d 331 (1995), the Court of Appeals stated that “voluntary” means that “the action [must] be both an exercise of unconstrained free will and that the act be intentional.” The Court explained the need to examine the intent of the party in Goldberger:

The intent of the parent in those cases is often important in
determining whether there has been voluntary impoverishment.
Was the job changed for the purpose of avoiding the support obligation
and, therefore, voluntary, or was it for reasons beyond the control of the parent, and thus involuntary?”  Thus, a parent is voluntarily
impoverished when they have made the free and conscious choice to
render themselves without adequate resources.

“[A] parent shall be considered voluntarily impoverished whenever the
parent has made the free and conscious choice, not compelled by
factors beyond his or her control, to render himself or herself
without adequate resources.”

Goldberger v Goldberger, 96 Md. App. 313, 325-27, 624 A.2d 1328, 1330 (1993). [emphasis added].

“Factors beyond his or her control” can be extremely critical to remember, particularly if your reduction in income is based on your company down-sizing, you were laid off, or were even terminated. The Maryland Court of Special Appeals has specifically found that termination from one’s employment does not constitute voluntary impoverishment, when the individual did not intend to lose their job. Stull v. Stull, 144 Md. App. 237, 249, 797 A.2d 809, 815 (2001). In Stull, the appellant was terminated from his job for falsifying documents. Despite the appellant’s obvious misconduct, which was so reprehensible that he was precluded from receiving unemployment benefits, the Court held that the appellant was not “voluntarily impoverished” for a determination of support. The Court reasoned that regardless of whether the appellant may have intended to falsify the documents, the appellant did not intend to be terminated from his employment. Id.

Similarly, in Wills v. Jones, 340 Md. 480, 496, 667 A.2d 331, 338-9 (1995), the Maryland Court of Appeals held that “misconduct on the part of an employee is not sufficient to deem a subsequent termination of employment voluntary even if the employee’s termination was a foreseeable result of the misconduct.” The Court in Wills was determining whether a father’s incarceration and resulting impoverishment was voluntary because it was the father’s free choice to commit the crime which led to his incarceration. Id. The Court ultimately decided “that the foreseeability of an action’s possible consequences were not sufficient to conclude that the [father] brought those consequences about voluntarily.” Wills v. Jones, 340 Md. 480, 496, 667 A.2d 331, 339 (1995).

If you hire an attorney who is savvy to the Court’s expectations (and you should), he or she will likely tell you that you need to apply, apply, apply for jobs – regardless of whether you are really looking to obtain employment (hence the title of this blog). Reason being, the Court can determine that the unemployed or underemployed parent is “voluntarily impoverished” if he or she has refused to seek employment or work toward becoming self-sufficient. See Guarino v. Guarino, 112 Md. App. 1, 14-15, 684 A.2d 23 (1996) and Durkee v. Durkee, 144 Md. App. 161, 182-84, 785 A.2d 94 (2002).

At the time of trial, your attorney will likely provide the Court with your resume, applications, and any cover-letters you’ve prepared during the pendency of the hearing. Some attorneys even try to dazzle the Court with the weight of your efforts. “Your Honor, I have 3 inches of job applications that my client has submitted almost daily in her efforts to find employment.”) However, a good trial attorney may cross-examine you on your actual applications and whether the five pounds worth of paper was feigned attempts to obtain employment or legitimate efforts. (Hint – applying for positions well outside your scope of education, knowledge, or prior work experience may not be helpful to you on cross-examination).

Finally, when the Court conducts a hearing and determines that a party is voluntarily impoverished, the Court must make a determine of the factors enunciated in John O. v. Jane O., 90 Md.App. 406, at 422, 601 A.2d 149:

1. his or her current physical condition;
2. his or her respective level of education;
3. the timing of any change in employment or financial circumstances relative to the divorce proceedings;
4. the relationship of the parties prior to the divorce proceedings;
5. his or her efforts to find and retain employment;
6. his or her efforts to secure retraining if that is needed;
7. whether he or she has ever withheld support;
8. his or her past work history;
9. the area in which the parties live and the status of the job market there; and
10. any other considerations presented by either party.

You have your custody order, but it’s been a few years and circumstances have changed. You want to modify the Order, so now what?

If you’re looking to modify a custody order, you are likely already very familiar with the terms “best interest of the children.”  As you know, the primary focus of any custody case and determination is the best interests of the children. In Montgomery County v Sanders, the Court of Special Appeals attempted to narrow down and enunciate the factors a trial court should consider in determining the best interest of a child. The Court ruled that the criteria should include an evaluation of the  “1) fitness of the parents, 2) character and reputation of the parties,  3) desire of the natural parents and agreements between the parties,  4) potentiality of maintaining natural family relations, 5) preference of the child, 6) material opportunities affecting the future life of the child, 7) age, health and sex of the child,  8) residences of parents and opportunity for visitation,  9) length of separation from the natural parents and 10) prior voluntary abandonment or surrender.” [Internal citations omitted].

In addition, a trial court may consider the “capacity of parents to communicate and to reach shared decisions affecting child’s welfare, willingness of parents to share custody, fitness of parents, relationship established between child and each parent, preference of child, potential disruption of child’s social and school life, geographic proximity of parental homes, demands of parental employment, age and number of children, sincerity of parents’ request, financial status of parents, impact on state or federal assistance, and benefit to parents.” See Shenk v Shenk and Taylor v Taylor.

Because the Court is primarily concerned with the best interest of the children, which change and evolve over time, Courts in Maryland have the power to modify custody.  Pursuant to the §8-103 of the Family Law Article, Maryland Courts are vested with the power to modify any agreement or settlement with respect to the “care, custody, education or support of any minor child . . . if the modification would be in the best interests of the child.”

However, a parent should keep in mind that it is the burden of the moving party to demonstrate the need for a change in custody.  As explained in McMahon v. Piazze, “when presented with a request for a change of, rather than an original determination of, custody, courts employ a two-step analysis. First, the circuit court must assess whether there has been a ‘material’ change in circumstance.” As the Court of Appeals has explained, “a change in circumstances is ‘material’ only when it affects the welfare of the child.” McMahon at 594, citing McCready v. McCready, 232 Md. 476, 482, 593 A.2d 1128 (1991). See also Sullivan v Auslaender, 12 Md. App. 1, 5, 276, A.2d 698 (1971) (holding that to justify a change in custody, the change in conditions upon which it is based must be one affecting the welfare of the child and not of the parent) (citing Krebs v Krebs, 255 Md. 264, 257 A.2d 428 (1969). If the Court finds that there has been a material change in circumstances, then they consider the best interest of the child (as described above) “as if the proceeding were one for original custody.” See McMahon v. Piazze.

This is a tough burden to prove because normal, everyday change will not necessarily in and of itself warrant a modification.  For example, claiming that the child was 4 years old when the Court determined custody and the child is now 7 is not typically sufficient (without more) to warrant a modification.  The Court of Appeals has explained that the requirement of a showing of “material change” has its roots in principles of claim and issue preclusion:

The ‘material change’ standard ensures that principles of res judicata are not violated by requiring that such a showing must be made any time a party to a custody or visitation order wishes to make a contested change, even if it is to an arguably minor term. The requirement is intended to preserve stability for the child and to prevent relitigation of the same issues. See Domingues v. Johnson, 323 Md. 486, 498, 593 A.2d 1133, 1139 (1991).

Simply put, in determining whether a modification of custody is appropriate, the Court must recognize “the child’s need for continuity. Basically, if a child is doing well in the custodial environment, the custody will not ordinarily be changed.” The best interests of the children are presumed to be “a continuation of custody.” Levitt v. Levitt, 79 Md. App. 394, 397, 556 A.2d 1162, cert denied, 316 Md. 549 (1989).

Many times parents have concerns regarding the other parent’s parenting skills, desires  additional time with their child or even have concerns with their child’s behavior and academic performance, but is that enough to modify custody? The answer is “it depends.” For instance, in McMahon v. Piazze., the Court declined to modify custody where it found that the only changes were to be the minor child’s home life, age and maturity. However, changes such as a parent’s relocation, a child’s slip in grades or other identifiable harm, may rise to the level of a change in circumstances warranting a modification of custody.

Do you have a will?

Even if you never get around to consulting a lawyer to prepare a will and have it properly executed, virtually every state in the union has taken the trouble to write one for you.  Unfortunately, the legislatures who created  the laws of intestacy don’t know you, don’t know your children, don’t know your crazy “ex”, don’t care if your only sibling is a homeless, unemployed, or deadbeat.  They create a “one size fits all” set of rules that direct where your assets go and in what percentages without regard to any of those details of your life.

Read on to hear what the State of Maryland has planned for you if you reside here when  “ the end” comes  and some of the challenges your survivors may face:

Generally speaking, if you die without a Will and you are married, your spouse gets only ½ of your assets; the rest goes to your children in equal shares regardless of their age or individual needs.  No spouse?  All of it goes to your kids.  No kids either?  All to your parents.

That distribution plan doesn’t sound so bad until you look more closely at some possible unintended consequences that could apply to any family:

Maryland treats all your children equally – children from prior marriages, adopted children, adults (over the age of 18) and minors. If you happen to have the family home titled in just your name, your spouse will have to get permission from a Court appointed guardian of any minor children for permission to sell the house, refinance , it or use their half of any proceeds to buy a new home.  This could include an ex-husband or wife who as the qualified guardian of a child from a previous marriage ends up with control of the purse strings.  Imagine the joy your new widow will experience  having to deal with your ex-wife in a battle over proceeds from a sale of the former marital home.

In addition, since Maryland treats all your children equally, your adult children who may have gotten the benefit of an Ivy league education funded by you in earlier years get the same dollar amount of your estate as the 10 year old in elementary school, or a severely disabled child.

No spouse and no children – everything goes to your parents, regardless of whether they are multi-millionaires or institutionalized with severe dementia and your death leaves that homeless, unemployed, and deadbeat of a brother as the custodian of their funds.

It is estimated that only 60% of individuals over the age of 50 years have wills, 45% of these people have powers of attorney, 30% of these people have advance medical directives, and only 23% have living trusts. These statistics indicate that most people fail to create a comprehensive estate plan, and of those who have completed their estate planning, odds are they haven’t reviewed or updated their plans in years. Prior planning produces positive results upon disability or death.

Failing to plan is planning to incur unnecessary problems, delays, taxes, and expenses.

It’s your first day on a new job. You are shown to a desk or conference table and the office manager places a large stack of papers in front of you. Tax forms, personal information forms, and the Employee Handbook. The Handbook can be small or large, and most of the time no one reads it. Nearly all of the time, however, a new employee will sign a piece of paper saying that he or she has read the handbook and understands all that is contained in the handbook. After this point, few employees ever think about what is actually written in the handbook until something bad happens. And sometimes not until it’s too late.

The Family and Medical Leave Act is available to qualified employees to allow them unpaid time off to care for themselves and qualified family members with serious health problems, the birth and adoption of children, and several other circumstances. The FMLA prohibits an employer from interfering with a qualified employee’s ability to take FMLA leave, and from discriminating and/or retaliating against someone who exercises his or her FMLA rights. Visit the Department of Labor’s website on the FMLA for more specifics, available here.

In the case of serious health problems with the employee or the employee’s covered family member (parents, spouses, and children), the FMLA provides protected leave for both situations when the need for leave is foreseeable and unforeseeable. One of the most commonly litigated issues is whether or not the employer had notice that the employee needs to take FMLA leave.

This is where the handbook comes in.  Many, if not all, employers have call-in policies for sick leave and/or reporting tardiness or absenteeism from work.  These call-in policies often explain who you need to call (manager, office manager, a 1-800 number to a corporate headquarters), when you need to call (e.g., within the first two hours of the employee’s shift), and the method of communication (e.g., telephone call, e-mail, etc).

The FMLA’s purpose is to balance an employer’s need (and arguably the right) to know whether its employees are showing up to work or just quitting by being a no-call/ no-show, with the employee’s need to sometimes be out of work to deal with personal and family emergencies. The FMLA provides covered employees with this flexibility, but apart from pre-approved leave, the FMLA does not allow an employee to just go silent for days on end and then show back up to work to find his job still waiting for him. If an employee needs to use unforeseen FMLA leave, the employer needs to know this and that communication is the employee’s responsibility.  This does not mean that the employee has to use the magic words, “I need FMLA leave.” An employee doesn’t even need to know that FMLA exists! This is well established in the regulations and case law.[1] What this does mean is that, as a general rule, unless there are extreme extenuating circumstances, the employee needs to comply with the employer’s call-in policies.[2] Even if an employee otherwise would qualify, an employer has the legal right to deny FMLA leave when the employee does not follow the standard leave request and call-in policies.[3]

Here is an extremely important point: merely calling in “sick” will not be sufficient information to trigger FMLA protections.  The regulations specifically say so: “Calling in ‘sick’ without more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.”[4] FMLA is not to be used for run of the mill ailments. It is for serious health conditions and other qualifying circumstances. When calling-in, the employee is obligated to provide the employer with enough information so that the employer can reasonably know that FMLA leave applies to this situation.  For example, calling-in and telling your employer “I’m just been admitted to the hospital and I will be here for three days,” will in most cases provide enough information to the employer that the employee needs FMLA leave, not just sick leave. Be careful though – if your employer requires that you call in every day you are out, even though you told them the duration of the hospital stay in the initial communication, you may still be required to follow the call-in procedures for each subsequent day.

If the circumstances are such that either the employee himself cannot call, and there is no other qualified representative (e.g., spouse, adult family member, or other responsible person) that can do so on his behalf, the regulations allow that the employee follow the employer’s call-in procedures as soon as practicable.[5]  What does “practicable” mean? It means that “it generally should be practicable for an employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave.”[6]

For example, the Tenth Circuit Court of Appeals in Bones v. Honeywell International, Inc., found that the employer did not interfere with the employee’s exercise of FMLA rights where the employee did not “show up to work for three consecutive days and [failed to] notify her supervisors of those absences.”[7] Where an employer’s call-in and sick leave request policies do not infringe on FMLA rights by being overly burdensome, employees must follow those policies even when faced with a personal or familial emergency covered by the FMLA.  The Honeywell case explained that because of this AWOL period the employee would have been terminated “irrespective of whether or not these absences were related to a requested medical leave” as the “request for an FMLA leave does not shelter [the employee] from the obligations, which is the same as that of any other Honeywell employee, to comply with the Honeywell’s employment policies, including its absence policy.”[8]

So what does this mean for the employer and the employee? Employers may be able to reduce the risk of litigation if they provide specific call-in and absence policies that do not run afoul of FMLA rights, and have policies that are clearly delineated, easily accessible to employees, and applied evenly to all employees.  For employees, this means that you should take the time to read these policies early and often. An employee should assume that if an employer has taken the time write out these policies, the employer is willing to enforce the policies.  This does not mean that an employee who has not followed the policy and whose FMLA rights were violated does not have a claim, but this is a situation that is best to avoid if possible.

In short, READ THE HANDBOOK, as your employer created it for a reason.

On the heels of the Supreme Court striking down key parts of the Defense of Marriage Act (DOMA), including holding that in states where it is legal for same-sex couples to marry, the government must extend same sex couples federal health and social security benefits, and extending tax benefits to same same-sex couples, Attorney General Eric Holder has announced that the Federal Government will extend married couples equal protection under the law.

One of the many victories of this announcement is that couples in same sex marriages will be allowed to jointly file for bankruptcy and domestic support obligations, such as alimony owed to a former same-sex spouse, can no longer be discharged through bankruptcy proceedings.

Generally, domestic support obligations are not dischargeable in bankruptcy but, in the past, the federal government could challenge joint bankruptcy filings in states that did not recognize same-sex marriage and the debtor spouse could seek to avoid their support payments on the grounds that their state did not recognize same-sex marriages and thus, those pesky support payments, were not support payments and were therefore dischargeable.

However, under Chapter 11 and Chapter 13 bankruptcy proceedings, the debtor spouse, in any marriage, may discharge certain alimony payments during bankruptcy proceedings where the alimony payment has been assigned to a third party or where the debts, although written as alimony, are not for spousal support (such as a penalty for late support payments). A debtor spouse may also be able to reduce their debt payments under a Chapter 13 bankruptcy proceeding. Although, the supported spouse should also be heartened to hear that while the supporting spouse may be granted an automatic stay of enforcement by creditors, the stay does not apply to proceedings to determine or enforce the payment of child support or alimony (except that it may stay proceedings to determine how to divide up  marital property mad may require the permission of the bankruptcy court to proceed). Bankruptcy may also affect the ability of the supporting spouse to pay alimony and the need for a spouse to receive alimony, both of which are major factors used by the Court in determining whether an award of alimony is appropriate. Pursuant to the Maryland Family Law Article §11-106(b), the Court shall consider all the factors enumerated below, to determine a fair and equitable award of alimony:

(1) the ability of the party seeking alimony to be wholly or partly self-supporting;

(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;

(3) the standard of living that the parties established during their marriage;

(4) the duration of the marriage;

(5) the contributions, monetary and nonmonetary, of each party to the well-being of the family;

(6) the circumstances that contributed to the estrangement of the parties;

(7) the age of each party;

(8) the physical and mental condition of each party;

(9) the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;

(10) any agreement between the parties;

(11) the financial needs and financial resources of each party, including:

(i) all income and assets, including property that does not produce income;

(ii) any award made under §§ 8-205 and 8-208 of this article;

(iii) the nature and amount of the financial obligations of each party; and

(iv) the right of each party to receive retirement benefits; and

(12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health-General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.

The Court must demonstrate that it has considered all of these factors, including factors that are not expressly listed in this section but which the Court deems “necessary and appropriate” in determining an award of spousal support.

If you are concerned about how your or your former spouse’s bankruptcy proceeding may affect your divorce proceeding, you should consult with your attorney immediately to discuss your rights.

On November 19, 2013, the North Carolina Court of Appeals rejected the University of Maryland’s (“UM”) attempt to dismiss a lawsuit over the university’s planned migration from the Atlantic Coast Conference (“ACC”) to the Big Ten Conference later this year.[1]  In 2012, the ACC brought suit against UM in North Carolina state court seeking a declaratory judgment that a withdrawal payment provision in the ACC Constitution was a valid liquidated damages clause enforceable against the university.

  The ACC alleged that UM’s withdrawal from the ACC subjected the university to a mandatory penalty in the amount of $52,266,342.

In January 2013, UM filed a pre-answer motion to dismiss the ACC’s complaint for lack of personal jurisdiction.  Specifically, the university asserted that the trial court lacked jurisdiction based on the sovereign immunity of the State of Maryland.  Following briefing and a hearing on the matter, the trial court denied the UM’s motion.  In so doing, the trial court refused to extend comity (the practice among political entities to mutually recognize legislative, executive, and judicial acts) to UM’s claim of sovereign immunity in North Carolina’s courts.

That very month, The Board of Regents of the University System of Maryland unsuccessfully attempted to have the ACC’s lawsuit dismissed in the Circuit Court of Prince George’s County, Maryland on the ground that the courts of North Carolina enjoy “no jurisdiction over the sovereign State of Maryland and its public universities.”[2]  Judge Paul Davey stayed the matter pending the outcome of the North Carolina litigation.

Shortly thereafter, UM filed a notice of appeal from the order denying their motion to dismiss.  The ACC responded with its own motion to deny UM’s request for a stay of the trial court’s proceedings and asked the trial court to retain jurisdiction.  The trial court granted the ACC’s motion to retain jurisdiction.

In April 2013, UM filed a petition for the issuance of a writ of supersedeas in the North Carolina Court of Appeals seeking a stay of the trial court’s proceedings pending resolution of UM’s appeal.  The appellate court allowed the petition and stayed all proceedings in the court below pending the review of the interlocutory appeal.

UM argued that the common law principle of comity should apply.  In essence, UM argued that, as an agency of the State of Maryland, due the protections of sovereign immunity, it was immune from litigation in the State of Maryland, and, therefore, North Carolina, out of deference to the laws of its sister state, was also deprived jurisdiction over it. As without jurisdiction, a court cannot entertain a lawsuit.  The court of appeals agreed only in part.  It held “that rights acquired under the laws or judgments of a sister state will be given force and effect in North Carolina if they are not against public policy.”[3]  In other words, the court was not required to determine if Maryland law entitled UM to sovereign immunity.  Instead, the issue of consequence was whether North Carolina law afforded UM sovereign immunity.

Despite the fact that the court of appeals had recently extended sovereign immunity to the University of Virginia and dismissed it as a defendant in a civil case[4], the panel determined that an extension of immunity to UM would violate public policy.  Unlike the University of Virginia matter, a case which sounded only in tort, UM was alleged to have breached a contract.  The North Carolina Supreme Court, in the context of the sovereign immunity doctrine, previously used public policy to effectively waive the State of North Carolina’s sovereign immunity in causes of action grounded in contract.[5]  Relying on that precedent, the court of appeals held:

Accordingly, because the public policy of this state does not allow the State of North Carolina to avoid its obligations in contract, we cannot extend comity to Defendants’ claim of sovereign immunity.  Furthermore, because we find that the extension of comity in this case would violate public policy, we decline to consider—as would be required if we had reached the opposite conclusion—whether Defendants would be entitled to sovereign immunity as a matter of Maryland law.[6]

Defeated on appeal, but not in spirit, UM retaliated by filing a $157 million counterclaimagainst the ACC earlier this month in which it alleged, inter alia, that ACC member universities attempted to recruit two Big Ten universities to join the ACC.  UM’s counterclaim represents the latest punch thrown in this prolonged legal battle.

(Monopoly® is a registered trademark of Parker Bros., and is produced by Hasbro)

Two bills in the Maryland legislature could affect which estates would be subject to Maryland estate tax in the future and should be carefully watched by estate and tax attorneys and those Marylanders looking to protect their estate assets.

Back in 2001, the federal government decided to increase the exemption for estate taxes. Prior to that time, the exemption was $1,000,000 and any net assets in excess of this amount were subject to a hefty tax. Over the next 10 years the new exemption amounts would increase from $1,000,000 to $5,000,000. In order to help offset the imminent loss of revenue, the federal government cast aside the “state death tax credit,” a dollar-for-dollar tax credit for state death taxes paid. A portion of the federal estate tax was set aside and paid directly to the state in which the decedent resided.

In response to the potential loss of revenue that would come with the abandonment of the state death tax credit, the Maryland legislature, between 2002 and 2006, passed a series of new estate tax laws. These new laws effectively reinstated the Maryland estate tax that would have otherwise been paid had the federal estate tax laws remained as they were in 2001. Thus, Maryland estate tax was, and still is, applied to net estate assets in excess of $1,000,000.

There are voices across the state that have, for many years, screamed that the estate tax laws in Maryland are the impetus for many wealthy Marylanders to flee the state. Those individuals point out that the bordering states of Virginia and Delaware have both abandoned the estate tax and, given their proximity to Maryland, are very attractive to Maryland millionaires looking to avoid the potential burden imposed on their families that would result if they were to pass away while residing in Maryland. And, if you don’t mind traveling a little further, you could move to Florida, to avoid estate taxes, income taxes and below-zero wind chills brought here by the “polar vortex.” This point of view is bolstered by reports such as the Tax Foundation’s review of state to state migration[i] that showed that between 2000 and 2010, Maryland lost $5.5 billion dollars in taxable income from net migration. During that same period, only seven states suffered higher domestic migration losses in taxable income.

There are many, however, that argue that most people leaving Maryland are doing so for other reasons, like warmer weather, housing prices or other personal reasons. These voices point to opposing studies that show Maryland is a desirable place for millionaires to reside. For the third consecutive year, Maryland ranked first in Phoenix Marketing International’s annual ranking of millionaires per capita,[ii] moving up the from the second place position it held from 2007 through 2010. This would seem to show that at least some millionaires hold an affinity for Maryland despite the current status of its estate tax. Or, they simply haven’t moved yet.

Well, the flight from Maryland that may or may not be driven by the Maryland estate tax, has not gone unnoticed by the Maryland legislature. There are currently two bills moving through the legislature that would bring the Maryland estate tax exemption back in line with the federal estate tax exemption amount.

Senate Bill 163 (2014) proposes tying the Maryland exemption to the federal exemption amount effective for anyone dying after December 31, 2013.  This bill has been introduced during previous legislative sessions and has never garnered enough support to pass.

The other bill, Senate Bill 155 (2014) proposes a staggered increase in the exemption amount; beginning with an increase from $1,000,000 to $2,000,000 for individuals dying in 2014 and culminating in 2017, when the Maryland exemption amount will fall in line with and continue to follow the federal exemption amount. Unlike Senate Bill 163, Senate Bill 155 has received significant bi-partisan support. It is sponsored by Senate Minority leader, David Brinkley, and is co-sponsored by Senate President Thomas V. Mike Miller, Jr., among other co-sponsors. This bill would seem to have the best chance of passage of any proposed since the current laws were enacted; however we will have to wait and see.