What Should Employers Do About the COVID-19 Vaccine?

A Webinar featuring Employment Attorneys Marc Engel and Michael Neary

The COVID-19 vaccine raises many questions for employers. Should you mandate it? Should you recommend it? What policies do you need? 

Lerch Early employment attorneys Marc Engel and Michael Neary on February 11 presented a webinar on how employers should handle issues surrounding the COVID-19 vaccine and plan for the day when the vaccine is readily available.

To view the webinar on Zoom, click here. The passcode is #tFhB3O3.

The webinar was hosted by the Greater Bethesda Chamber of Commerce, the Greater Silver Spring Chamber of Commerce, and the Gaithersburg-Germantown Chamber of Commerce.

If you have any follow-up questions or comments, feel free to reach out to Marc at mrengel@lerchearly.com or Michael at mjneary@lerchearly.com.

Managing Your Employees: What New and Small Businesses Need to Know

Employment attorneys Michael Neary and Nida Kanwal presented to new and small business owners on January 19 about managing their employees. You can watch a recording of the presentation here:

Micheal and Nida touched on several important topics, including:

1.  Hiring Process and Accompanying Risks
2.  Registering Employees With the State
3.  Immigration Compliance
4.  Documenting Employment Relationship: Offer Letters, Contracts, Equity Grants
5.  Best Practices for Employer Policies
6.  Wage and Hour Issues – Employee/Independent Contractors
7.  Protecting Your Intellectual Property and Trade Secrets
8.  Workplace Health and Safety – COVID-19
9.  Insurance
10.  Benefits

You can find a copy of their presentation here: https://www.lerchearly.com/events/managing-your-employees-what-new-and-small-businesses-need-to-know

For more information, contact Michael at mjneary@lerchearly.com or Nida at nkanwal@lerchearly.com.

Montgomery County Makes It Easier for Employees to Prove Unlawful Harassment

Marc EngelMarc Engel

Last month, the Montgomery County (Maryland) Council enacted amendments to the county’s anti-discrimination statute, which substantially lowers the standard for proving unlawful hostile harassment claims.

The amendment was signed into law on October 16, 2020 and takes effect on January 15, 2021. As discussed below, the amendments are likely to have a profound impact upon employers.

Overview

Sexual harassment is a form of sex discrimination prohibited by local, state, and federal law (Title VII). There are two types of unlawful harassment: (i) quid pro quo harassment (“you do this for me, and I do that for you”) and (ii) the more common type of harassment, known as hostile work environment.

Under current county, Maryland state, and federal law, in order to establish unlawful harassment, an employee must:

  • Establish that the conduct was unwelcome;
  • Was based upon the sex of the employee;
  • Was sufficiently “severe or pervasive” to alter the employee’s conditions of employment and to create an abusive work environment; and
  • The wrongdoing is imputable on a factual basis to the employer.

These requirements also apply to harassment claims based upon other unlawful factors, such as age and race.

The “severe or pervasive” prong has both a subjective and an objective component. With regard to the subjective component, an employee must show that she or he subjectively perceived, as a reasonable person would perceive, that the environment was hostile or abusive.

The conduct must also be objectively “severe or pervasive” and have a substantial effect on the terms or on the conditions of employment. The “severe or pervasive” requirement has proven challenging for employees to satisfy. The Fourth Circuit (where Maryland is located) has noted that boorish and crude behavior alone is not sufficiently “severe or pervasive” to be actionable under Title VII. As the Fourth Circuit explained: “While no one condones boorishness, there is a line between what can justifiably be called sexual harassment and what is merely crude behavior.”

Summary of Impact of New Legislation

The amendments to the Montgomery County anti-discrimination statute effectively replace the requirement that workplace conduct be sufficiently “severe or pervasive” to alter the working conditions of a reasonable person in the employee’s shoes, with the requirement that a reasonable person in the employee’s shoes “would consider the conduct to be more than a petty slight, trivial inconvenience, or minor annoyance.”

Although the law still contains an element of objective reasonableness, the employee is only required to establish that the conduct was more than a trivial inconvenience, minor annoyance or petty slight (and not that the conduct was sufficiently “severe or pervasive” to alter the working conditions of a reasonable person in the employee’s shoes) – which is a significantly lower standard than the one used under Maryland’s state anti-discrimination law and under Title VII.

Takeaways

To learn about steps employers should consider taking, read the rest of the article on our website: https://www.lerchearly.com/news/montgomery-county-makes-it-easier-for-employees-to-prove-unlawful-harassment.

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

Montgomery County Council Considers Legislation to Amend its Ban the Box Law

Michael NearyMichael Neary

A proposed Montgomery County bill greatly expands the County’s law prohibiting employers from asking about the criminal histories of job applicants until after an initial interview. In 2014, the County passed its “Ban the Box” law, which applies to employers with fifteen or more employees. Councilmember Will Jawando proposed an amendment reducing the employee threshold from fifteen to one on July 29, 2020. If passed, any employer in the County employing one individual would have to comply with the mandates of the Ban the Box law.

What Else is in the Proposed Bill?

The proposed legislation also would push the timeline back for when an employer could inquire about criminal histories from after a first interview until after the employer makes a conditional offer of employment. Further, as currently drafted, the bill would prohibit employers from asking about certain criminal offenses. Under the proposed legislation, employers could not ask about or, run a criminal records check to discover, whether the applicant has:

  1. Any arrest records that did not lead to a conviction;
  2. A first conviction for:
    a. Trespass;
    b. Disturbing the peace; or
    c. Second degree assault;
  3. A conviction for a misdemeanor if at least three years have passed since:
    a. The date of conviction; and
    b. The date any period of incarceration for the misdemeanor has ended;
  4. Juvenile records deemed confidential by statute; or
  5. Convictions that have been expunged.

The bill also prohibits employers from inquiring about these offenses when considering current employees for promotions.

The legislation delegates to the County Executive responsibility for preparing implementing regulations and regulations necessary to notify employees and employers of their rights and responsibilities under the legislation.

How Would the Bill Impact Employers?

If passed, the bill would significantly limit employer’s ability to investigate the criminal histories of applicants. The current Ban the Box law simply regulates the timeline for when employers can check the criminal histories of applicants. The public policy behind the current law is that employers may be willing to hire an applicant with a criminal history if the information is learned after the applicant has an opportunity to make a good impression during an initial interview. The proposed legislation, however, would ban inquiry into certain offenses preventing employers from considering them at all during the hiring process. The list of excluded offenses includes what some would consider more than simple nuisance crimes. For instance, a conviction for second-degree assault in Maryland can result from a defendant intentionally or recklessly causing physical contact or physical harm to another.

The legislation also could significantly slow down the hiring process. Employers would not discover an applicant’s criminal history until the end of the hiring process meaning employers might have to start the search again if the employer disqualifies a successful candidate because of a criminal record.

The Council held a public hearing on the bill on September 15, 2020 at which five speakers testified. The Council referred the bill to the Health & Human Services and Public Safety Committees for consideration. The council staff issued a work session staff report to the Committees on September 23, 2020. The next step is for the two Committees to make a recommendation to the full Council on the bill.

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