Are DMV Employers Required to Give Employees Time Off to Vote? It Depends.

Josh SchmandJosh Schmand

With Election Day around the corner on November 3, 2020, and early voting ongoing, employees may need time off from work to vote.

Federal law does not require employers to give employees time off from work to vote, but the local jurisdictions have varying voting leave requirements. Here’s what employers need to know about giving employees time off to vote in D.C., Maryland, and Virginia:

Time Off to Vote in D.C.

On April 27, 2020, the District of Columbia enacted the Leave to Vote Amendment Act of 2020, which went into effect on October 1, 2020, just in time for the 2020 election season. The Act gives all D.C. employees the right to at least two hours of paid leave off to vote.

This means that paid voting leave is only available to employees who are voting in person. The leave can be used for either an election held in the District if the employee is eligible to vote in the District or in an election held in the jurisdiction (such as Maryland or Virginia) in which the employee is eligible to vote.

Employers may ask employees to submit the request for paid leave a reasonable time in advance of the date the employee plans to vote and to specify the hours during which employees can take paid leave to vote, including requiring employees to vote early instead of on Election Day or to vote at the beginning or the end of a shift. Employers may not interfere with, restrain, or deny any attempt employees make to take paid leave to vote under the Leave to Vote Act or retaliate against employees for taking paid leave to vote.

The Leave to Vote Act requires employers to post notice of the voting leave requirements in a conspicuous location and on their websites. A notice suitable for posting in the workplace can be found here.

Voting Leave in Maryland

Every employer in Maryland must allow employees at least two hours of paid leave off to vote on Election Day in order to cast a ballot. Like in D.C., this means that paid voting leave is only available to employees who are voting in person.

All employees in Maryland are eligible for paid voting leave if they claim to be registered voters in Maryland and if they do not have two hours of continuous off-duty time during the time that the polls are open. Employees are not eligible for paid voting leave if they have two consecutive nonworking hours while the polls are open.

Employers may require that employees provide written proof that they voted or attempted to vote. The paid voting leave law does not specify whether employers may designate the hours during which employees may take paid leave to vote. The law also does not specify any obligations for employers to inform employees of their right to paid voting leave.

Election Officer Leave in Virginia

Virginia does not have voting leave laws requiring time off (paid or unpaid) for employees to vote.

However, Virginia employers should be aware that they are obligated to provide election officer leave. An election officer is a person appointed by an electoral board to serve at a polling place for any election.

Requests for election officer leave must be made reasonably in advance of Election Day, and the leave does not need to be paid. Employees that serve four or more hours (including travel time) as election officers on Election Day cannot be required to start a shift on or after 5 p.m. that day or before 3 a.m. the day after service.

Voting Leave Policies

The voting leave requirements outlined above are the minimums required by applicable laws, and employers, even those in Virginia, can always amend their policies to provide additional paid voting leave as necessary. Employers should review all requests for voting leave consistent with established policies and applicable laws.

At a minimum, employers should review and modify their leave policies now to ensure compliance with the amended D.C. Leave to Vote Act and to provide employees with their required voting leave.

For more information, contact Josh at 301-347-1273 or jcschmand@lerchearly.com.

Maryland Law Bans Natural Hair Discrimination

The state joins Montgomery County and Virginia in adopting such legislation

Employment/Labor GroupEmployment/Labor Group

Effective October 1, 2020 Maryland’s anti-discrimination law prevents discrimination against persons based on their protective hairstyles and textures.

These types of laws, referred to as Creating a Respectful World for Natural Hair (CROWN) acts, are now being enacted in many states and localities. Montgomery County has had such a law in place since February of 2020, making it the first county in the country to ban hair discrimination. Virginia’s law went into effect on July 1, 2020. DC has not yet enacted such a law.

Maryland’s anti-discrimination law, Title 20 of the State Government Article of the Maryland Code, prevents various types of discrimination including discrimination in employment, places of public accommodation, leasing of commercial property, and housing. The definitional section of the title, Md. Code, State Gov’t § 20-101, has been amended to broaden the definition of “race” by including “traits associated with race including hair texture, afro hairstyles, and protective hairstyles.” Additionally, protective hairstyles is defined to include “braids, twists, and locks.”

Notably, the Senate version of the bill attempted to restrict the law by including language that an employer could establish and require an employee to “adhere to reasonable workplace appearance, grooming, and dress standards that are directly related to the nature of the employment of the employee.” However, this language was ultimately struck before the Act’s passage.

Employers should review any grooming and personal appearance standards or handbook policies in their workplace to ensure that they do not violate the new law.

For more information, contact one of our employment attorneys.

Business Interruption Insurance

To Claim or Not to Claim?

Lauri ClearyLauri Cleary

Now that we are several months into the COVID-19 experience, most businesses have suffered some type of interruption, and many have suffered appreciable income loss.

The latter group may have considered submitting lost income claims on their business insurance policies. Those with offices, warehouses or any other physical premises (and many with only a virtual presence) likely have an all risk “CGL” (commercial general liability) insurance policy. These policies work by process of elimination or “exclusion” rather than “inclusion,” covering more than a narrow group of selected risks by covering any and all risks not expressly excluded–either by a narrow definition of the injury or loss that triggers coverage or express exclusion of certain causes of loss. They are “all risk” in that they insure against covered risks for covered losses.

Claims inquiries to many agents and brokers are met with the pessimistic advice that there likely is no coverage and will be no payout for COVID-19 losses. Many have been counseled not to bother submitting a claim. Given the new burdens the pandemic has placed on businesses trying simply to function, the temptation to forego an exercise in futility is understandably strong. But it should be resisted, and here’s why.

The Case for Making the Claim

As courts and legislatures begin to see and address claim denials, rays of hope are piercing the darkness.

First, and as always, a basic legal principle requires that insurance policies be interpreted in favor of the insured business and against the insurer, whose policy language is at issue. Initial court cases have begun to expose weak spots in the policy language armor insurers donned starting in 2008, after outbreaks of SARS and H1N1 inspired global pandemic fears. Before then, few businesses other than medical or biotech firms had policies excluding bacterial or viral diseases, as those risks were only addressed when they were inherent in the insured’s business.

Once hotel chains racked up huge SARS losses, and their insurers suffered huge verdicts, exclusions were rushed into policies for all businesses. But these exclusions, like all policy language, are narrowly interpreted against the insurer. Exclusions for “bacteria,” “virus,” “viral pandemic,” and other communicable disease sources are not interchangeable: a bacteria exclusion will not cover COVID-19 or any other virus (and vice versa), to justify denial for lack of a “covered cause of loss.”

Another ready refuge for insurers seeking to deny coverage is found in policy definitions of “covered loss.” That language, too, is under strict scrutiny in the courts. The issue is whether there must be physical damage or harm to property owned or rented by the business (or, in contingent income loss policies, to property of a customer or supplier or venue that draws customers to the business); and, if so, what constitutes “damage” or “harm” that may cause a “covered loss.”

Interpreting COVID-19

While courts in the past have interpreted policies to require a permanent structural change to physical property, the COVID-19 issue is whether contamination that does not effect a structural change, but adds a patina of toxicity, might be sufficient. There are apt analogies to be drawn from cases finding coverage for accidental chemical releases requiring decontamination to support an argument that property damage occurs wherever COVID-19 is present. Again, the policy language is paramount, and those providing coverage for “loss” may be broadly interpreted to include “loss of use” rather than only “damage” or “harm” to property.

Policies that interchange these words in other coverage parts may be interpreted against the insurers who argue a more limited meaning in policies that do not contain express exclusions of losses caused by viral pandemics or governmental shutdown orders. A recent D.C. Superior Court, case now headed to the D.C. Court of Appeals, demonstrates this well (Rose’s 1, LLC, et al. v. Erie Insurance Exchange, D.C. Superior Court, August 6, 2020).

In addition, since the onset of COVID-19 in March, state legislatures anticipating coverage denials in 10 states and the District of Columbia have been exploring ways to expand coverage under policies that otherwise would provide none. Most legislative measures would not simply declare coverage to exist where it did not otherwise. Rather, they would require insurers to offer such coverage for an additional premium. This approach balances the insureds’ need with concerns that the insurance industry not be bankrupted by COVID-19 loss payouts.

If nothing else, the judicial and legislative indications strongly support taking the time to submit a lost income claim under any policy that arguably affords any type of business interruption or lost income coverage, however limited.

For more information, contact Lauri at 301-657-0176 or lecleary@lerchearly.com.

CDC Updates Definition of “Close Contact” as it Relates to COVID-19

Employers Should Consider Taking Several Steps

Marc EngelMarc Engel

On October 21, 2020, the Centers for Disease Control (CDC) updated its definition of “close contact” for purposes of determining whether employees have been exposed to COVID-19.  The CDC now defines Close Contact as follows:

Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period* starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.

* Individual exposures added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes). Data are limited, making it difficult to precisely define “close contact;” however, 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation. Factors to consider when defining close contact include proximity (closer distance likely increases exposure risk), the duration of exposure (longer exposure time likely increases exposure risk), whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding), if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting), and other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors). Because the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE.  At this time, differential determination of close contact for those using fabric face coverings is not recommended.

The decision by the CDC to update the definition of “close contact” is likely to, among other things, make contact tracing even more challenging for employers.

To learn about steps employers should consider taking, read the rest of the article on our website: https://www.lerchearly.com/news/cdc-updates-definition-of-close-contact-as-it-relates-to-covid-19.

For more information, contact Marc at 301-657-0184 or mrengel@lerchearly.com.

On the Hook: Business Owners could be Personally Liable for Employees’ Unpaid Wages

Michael NearyMichael Neary

Employee wages must be the number one debt obligation your business pays on time, no matter the financial burdens your business faces. If your business cannot pay wages, rightsize your workforce immediately – or else you personally could be on the hook for the wages.

A recent Maryland Court of Special Appeals case demonstrates yet again why that is the case. While most business entities limit the possibility of personal liability, the Fair Labor Standards Act, the Maryland Wage and Hour Law, and the Maryland Wage Payment and Collection Act allow for personal liability. In Lin v. Cruz, the Maryland intermediate appellate court again found all three of these wage laws can hold individuals liable for the wages owed by a business under the economic realities test.

The Economic Realities Test

In Lin, a group of employees sued a restaurant and six individuals seeking to recover unpaid wages. The trial court found one individual liable for close to $400,000 in wages and enhanced damages. On appeal, the Lin court affirmed the trial court by applying the economic realities test.

The economic realities test asks whether the individual the plaintiff seeks to hold liable “(1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” The economic realities standard can easily extend individual liability past the owners of a business depending on the level of authority the individual had over the employee seeking wages. The ability of plaintiffs’ attorneys to stretch wage statutes to attach liability outside the core ownership group is bolstered by the view expressed in Lin that wage laws should be given an “expansive interpretation” to achieve the “broad remedial purposes” of those laws.

Because of cases like Lin, employees seeking to recover unpaid wages increasingly name individuals as defendants. Plaintiffs filing wage lawsuits can recover the unpaid wage, enhanced damages (up to four times the wage owed in one local jurisdiction), and attorneys’ fees. The enhanced damages increases the exposure for any individual named in a wage lawsuit. Since the economic realities test is fact specific, most individuals named as defendants will find it difficult having the claims dismissed on a motion to dismiss. Accordingly, the individuals could be stuck in the lawsuit through discovery and ultimately, depending on the facts, could be held liable for the damages awarded.

Prioritize Wages No Matter What

Because of the high stakes to the company and individuals in the management group from wage lawsuits, businesses should ensure employees are timely and properly paid for all hours worked no matter how tight the company finances become.

For more information, contact Michael at 301-657-0740 or mjneary@lerchearly.com.

Maryland Imposes Mandatory Notice Requirements for Employers in New “Mini-WARN” Act

Violators Subject to Substantial Penalties

Marc EngelMarc Engel

The Maryland legislature substantially increased the breadth and scope of the state’s so-called “mini” Worker Adjustment and Retraining Notification (WARN) Act to, among other things, impose mandatory notice requirements and stringent penalties on employers who fail to comply with the new law. The new law, known as the Economic Stabilization Act (Act), took effect on October 1, 2020.

Overview

The Act applies to employers with 50 or more employees that operate an industrial, commercial, or business enterprise in Maryland. It is patterned loosely after the federal Worker Adjustment and Retraining Notification Act (Federal WARN). The new law defines an employee as an individual who works for an employer for an hourly or salaried wage or in a managerial and supervisory capacity. The term “employee” does not include individuals who work less than an average of 20 hours per week or have worked for an employer for less than six months in the immediately preceding 12 months.

Scope and Notice Requirements

Unlike the prior iteration of the law, which had voluntary notice provisions, the Act imposes mandatory notice requirements upon covered employers. They must provide 60 days written notice before they initiate a “reduction in operations” which the law defines as (i) the relocation of a part of an employer’s operation from one workplace to another existing or proposed site or (ii) the shutting down of a workplace or a portion of the operations of a workplace that reduces the number of employees by at least 25 percent or 15 employees, whichever is greater, over any 3-month period.

The scope of the Act is broader than its federal counterpart. Unlike the Federal WARN, which applies to employers with 100 or more employees, the Act, as noted, applies to employers with 50 or more employees. Another significant difference is that the statutory triggers are significantly lower under the new Maryland law – 25% or 15 employees – in comparison to Federal WARN which contains thresholds of 33% of the workforce or 50 employees.

The written notice must be provided to affected individuals or entities 60 days before initiating a reduction in operations. The notice must be given to the following:

  1. All employees at the workplace that is subject to the reduction in operations;
  2. Each exclusive representative or bargaining agency, (i.e., a union of the impacted employees);
  3. Maryland’s Dislocated Worker Unit; and
  4. All elected local officials in the area of the impacted workplace.

The notice must include the following:

  1. The name and address of the workplace where the reduction will occur;
  2. Contact information for the supervisor (name, telephone number, email address) for those seeking further information;
  3. A statement explaining whether the reduction in operations is temporary or permanent and whether the workplace is expected to shut down; and
  4. The expected date when the reduction in operations will begin.

Benefit Continuation

The new law directs the Maryland Secretary of Labor (Secretary) to establish regulations for the appropriate continuation of benefits such as health, severance, and pension that an employer should provide to employees who will be terminated due to a reduction in operations.

Significant Penalties

Unlike its predecessor, the new law carries very stiff penalties for violators. The Act authorizes the imposition of a civil penalty of up to $10,000 per day to be assessed by the Secretary for failure to provide the required notices to all required individuals and entities. The factors to be considered by the Secretary in assessing a penalty include the gravity of the violation; the size of the employer’s business; the good faith of the employer; and the employer’s history of violations of the Act.

Open Issues; Next Steps

Significantly, the Act leaves unaddressed the geographic length of a relocation that is required to trigger the employer’s notice obligations. The Act also does not contain some of the exceptions that exist under Federal WARN, including exceptions for (i) a faltering company; (ii) unforeseen business circumstances; and (iii) a natural disaster. Because of the differences in the Federal WARN and the Act, compliance with the federal statute may not constitute compliance with the Act.

Employers considering a relocation of jobs and/or a reduction in staff in Maryland should consult with experienced counsel before doing so.

For more information, contact Marc at 301-657-0184 or mrengel@lerchearly.com.

Welcome to Employment Edge

On behalf of Lerch Early & Brewer’s employment and labor attorneys, we welcome you to Employment Edge, our firm’s new blog focused on the issues impacting employers throughout the Washington, DC Metropolitan Area and beyond.

For years we have connected with you through workshops, seminars, newsletters, and in various other in-person and digital ways (especially in the time of COVID-19). Now, we are excited to bring you relevant information about the most important topics to your business or organization through our Employment Edge blog.

Here, you will find content written by our experienced employment and labor attorneys on a multitude of matters including COVID-related workplace rules; updates on new Maryland, Virginia, and District of Columbia employment related laws; new court decisions and legal trends which impact employers; and a myriad of achievable best practices for complying with the ever changing legal landscape. We believe that this is just the tip of the iceberg. We look forward to continuing to anticipate the issues which we believe you will find important in the future while being responsive in real time to issues affecting you now.

Please visit our website (www.lerchearly.com) where you will find more information about our practice and our attorneys, as well as valuable articles and timely and helpful information.

Please send us your feedback, including issues and topics which you would like for us to address in future blog posts.

We look forward to hearing from you and to seeing you on Employment Edge soon!

Sincerely,

Marc Engel and Julie Reddig
Co-chairs, Employment/Labor Practice