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Paid Sick Leave to Take Effect in Maryland, Despite Governor’s Veto

Maryland has joined the growing ranks of states across the country mandating employee sick leave. Last year, the General Assembly passed the Healthy Working Families Act, requiring employers to allow employees to earn time off from work.  While Governor Larry Hogan vetoed the bill late last year, the General Assembly reconvened in January and overrode the veto. The Act takes effect on February 11, 2018, and employers should be prepared to implement changes quickly.

Coverage:

The Act applies to full-time, part-time, and temporary employees. However, it does not apply to any employee who works fewer than 12 hours per week, or employees under 18 years old.  Additionally, the Act contains other exceptions for certain categories of workers, including agricultural workers, construction industry employees that are covered by a collective bargaining agreement, and “as needed” shift employees in the healthcare industry.

Whether sick leave is paid or unpaid depends on the size of the employer. Employers with 15 or more employees must provide up 40 hours of paid sick leave per year.  Employers with 14 or fewer employees must provide employees the same amount of unpaid sick leave.

Accrual:

An employee begins accruing leave immediately upon starting work.  Employers must allow employees to accrue one hour of sick leave for every 30 hours worked, and the accrual rate is the same whether leave is paid or unpaid.  Additionally, employers must allow employees to carryover at least 40 hours of earned sick leave from one year to the next.  However, employers

Tips For Drafting Employee Handbooks – Tip #6: Requiring Acknowledgement Forms

This article is the last part of a six-part series.   The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.  Tip #6 discusses why it is helpful for an employer to require its employees to sign employee handbook acknowledgement forms.

Tip #6: Acknowledgment Forms

In addition to disseminating the employee handbook to all employees, employers should require each employee to sign a form acknowledging receipt of the employee handbook and the responsibility to review the same.  Signed acknowledgment forms should be maintained in employee personnel files.  Once this has been done, employees cannot credibly disclaim having received notice of all policies in the employee handbook.  It also is a good idea to specifically reference important policies (e.g., a harassment policy with a complaint reporting procedure) in the acknowledgment form so that an employee cannot later claim that he/she did not realize

Tips For Drafting Employee Handbooks – Tip #5: Updating Handbooks to Address Changes in the Legal Landscape

This article is part five in a six-part series.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.  Tip #5 focuses on the importance of consistently updating employee handbooks.

Tip #5: Updating Handbooks to Address Changes in the Legal Landscape

An employee handbook can only reduce potential liability if the policies therein are legally compliant.  Accordingly, it pays to review your handbook periodically to ensure that your policies are up to date.

For example, multi-state employers need to be vigilant about ever-changing state-specific (and even city-specific) obligations.  Current hot topics include leave rights (e.g., paid sick leave), drug testing (e.g., protection for medical marijuana use), and pregnancy accommodation.  Rarely will a “one size fits all” policy on any of these or similar subjects be compliant in all jurisdictions.  Accordingly, employers should consider state-specific addenda and update them regularly.

At a

Tips For Drafting Employee Handbooks – Tip #4: Avoiding Invasion of Privacy Claims

This article is part four in a six-part series.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.  Tip #4 addresses how including certain information in an employee handbook may help an employer defend against invasion of privacy claims.

Tip #4: Avoiding Invasion of Privacy Claims

An employer’s investigation of an employee’s potential misconduct can give rise to various claims relating to invasion of privacy.  Employer investigations can take many forms, from physically searching an employee’s desk, locker, or automobile following a complaint of stolen property, to retrieving an alleged harasser’s emails and voicemails while investigating a sexual harassment complaint, to drug and alcohol testing following a workplace accident.  Privacy laws differ quite a bit from state to state.  Accordingly, it is important to consult with local counsel regarding state law requirements, especially with respect to drug and alcohol testing which is one of the more heavily regulated areas of employment law.  With that disclaimer, there are certain measures that all

Tips For Drafting Employee Handbooks – Tip #3: Avoiding Breach of Contract Claims

This article is part three in a six-part series.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.  Tip #3 explains how including certain language in an employee handbook may help an employer to defend breach of contract claims.

Tip #3: Avoiding Breach of Contract Claims

It is not difficult to form a common law contract.  Typically, all that is needed is an offer, an acceptance, and consideration.  In most jurisdictions, an employee’s acceptance of employment or continued employment following receipt of an employee handbook can satisfy both the acceptance and the consideration elements of contract formation.  This leaves only the offer prong to be satisfied, and employees and the plaintiffs’ bar have long argued that policies in employee handbooks stating what an employer will (or will not) do in certain circumstances constitute contractual offers or promises, the breach of which can support a breach of contract claim.

For example, an employee may bring a breach of contract claim based on

Tips For Drafting Employee Handbooks – Tip #2: The Importance of Equal Employment Opportunity and Harassment Policies

This article is part two in a six-part series.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.  Tip #2 addresses how equal employment opportunity and harassment policies are especially beneficial to include in an employee handbook.

Tip #2: The Importance of Equal Employment Opportunity and Harassment Policies

The U.S. Supreme Court has held that an employer’s implementation of an anti-discrimination/anti-retaliation policy can be raised as an affirmative defense to a claim for punitive damages.[1]  The U.S. Supreme Court also has ruled that an employer’s written anti-harassment policy with an effective complaint reporting procedure can support an affirmative defense to certain types of harassment claims.[2]  Thus, employers should include these types of policies in their employee handbooks.

Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers draft and update their employee handbooks.  If you or your organization would like more information on employee handbooks or employment laws, please contact an

Tips For Drafting Employee Handbooks – Tip #1: Determining the Appropriate Scope and Length

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.

This article is part one of a six-part series.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.  Tip #1 examines factors an employer should consider when determining the appropriate scope and length for an employee handbook.

Tip #1: Determining the Appropriate Scope and Length

There are different schools of thought when it comes to deciding what policies to include in employee handbooks.  Some employers prefer to have a comprehensive employee handbook containing written policies governing virtually all aspects of the employment relationship, while others take the “less is more” approach.  There are pros and cons to each.  A more comprehensive employee handbook helps to ensure consistency in the administration of employment policies throughout an organization, especially if the employer has multiple locations that may utilize different employment practices at the local level in the absence of a written policy.  Thus, a more comprehensive employee handbook often makes sense for larger employers.

On the other hand, small to mid-size employers

Tips for Drafting Executive Employment Agreements – Tip #4 – Beware of 409A

August 7, 2017

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This article continues with another tip for drafting executive employment agreements and the importance of consulting counsel.

For every well drafted executive employment agreement in the business world, there seem to be multiple, poorly drafted agreements.  Too often, employers simply copy and paste from older agreements without knowing anything about the identity or qualifications of the author of the original agreement, the jurisdiction, or circumstances in which the agreement was intended to be used.  Moreover, employers sometimes borrow terms from an agreement that was heavily negotiated by an executive with considerable leverage.  Under such circumstances, the agreement likely will contain terms that are less favorable to the employer than those that can be negotiated with another executive.  Most employers do not realize their mistakes until they are consulting an employment attorney regarding their rights and obligations with respect to an executive who has engaged in misconduct or is simply performing poorly.  The purpose of this series is to provide tips for drafting executive employment agreements and to highlight the importance of consulting counsel before tendering an agreement to an executive for consideration.

Tip No. 4:  Beware of 409A

When drafting executive employment agreements, it is imperative to consider the potential implications of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”).   Section 409A is a U.S. tax law which governs the payment of deferred compensation (i.e., compensation earned in one year that is payable in another year).  This law generally regulates the time, form and manner

Tips for Drafting Executive Employment Agreements – Tip #3 – Restrictive Covenants

July 28, 2017

Categories

This article continues with another tip for drafting executive employment agreements and the importance of consulting counsel.

For every well drafted executive employment agreement in the business world, there seem to be multiple, poorly drafted agreements.  Too often, employers simply copy and paste from older agreements without knowing anything about the identity or qualifications of the author of the original agreement, the jurisdiction, or circumstances in which the agreement was intended to be used.  Moreover, employers sometimes borrow terms from an agreement that was heavily negotiated by an executive with considerable leverage.  Under such circumstances, the agreement likely will contain terms that are less favorable to the employer than those that can be negotiated with another executive.  Most employers do not realize their mistakes until they are consulting an employment attorney regarding their rights and obligations with respect to an executive who has engaged in misconduct or is simply performing poorly.  The purpose of this series is to provide tips for drafting executive employment agreements and to highlight the importance of consulting counsel before tendering an agreement to an executive for consideration.

Tip No. 3:  Check Applicable Law Before Drafting Restrictive Covenants

Executives often are provided with access to high-level client contacts and highly confidential, proprietary, and competitively valuable information.  While state law typically provides some protection against the disclosure of trade secret information in the absence of contractual commitments, including restrictive covenants in an executive employment agreement can provide additional and, in most cases, much more effective, protection.  Employers

Tips for Drafting Executive Employment Agreements -Tip #2 – Severance Conditions

July 20, 2017

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This article continues with another tip for drafting executive employment agreements and the importance of consulting counsel.

For every well drafted executive employment agreement in the business world, there seem to be multiple, poorly drafted agreements.  Too often, employers simply copy and paste from older agreements without knowing anything about the identity or qualifications of the author of the original agreement, the jurisdiction, or circumstances in which the agreement was intended to be used.  Moreover, employers sometimes borrow terms from an agreement that was heavily negotiated by an executive with considerable leverage.  Under such circumstances, the agreement likely will contain terms that are less favorable to the employer than those that can be negotiated with another executive.  Most employers do not realize their mistakes until they are consulting an employment attorney regarding their rights and obligations with respect to an executive who has engaged in misconduct or is simply performing poorly.  The purpose of this series is to provide tips for drafting executive employment agreements and to highlight the importance of consulting counsel before tendering an agreement to an executive for consideration.

Tip No. 2:  Condition Severance on the Execution of a General Release and Compliance With Other Contractual Provisions

If the Company is going to include the payment of severance in an executive’s employment agreement, it should always require the executive to execute a general release of all claims against the Company as a condition of receiving severance.  By failing to include this condition, an executive could be terminated,

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