What Should You Do if You Receive a Notice to Employer of Intent to Claim Lien for Unpaid Wages?

First of all, you must act quickly if you are an employer in Maryland.  Under Maryland law, employers only have 30 days from receipt to contest the notice.  If you do nothing during the 30-day period, the employee will then be permitted to file a lien against your property without any further opportunity for you to dispute the claim.

During the 30-day notice period, it is imperative that you file a Complaint to Dispute Lien for Unpaid Wages with the Court.  Accordingly to Maryland law, a hearing on the matter must be scheduled within 45 days after the Complaint is filed with the Court.  If the Court rules against the employer after a full hearing on the claim, the employee is entitled to the reimbursement of his/her legal fees to be paid by the employer.

In sum, once an employee (or their counsel) sends out the required notice to the employer then the burden is on the employer to take immediate action to refute the claim or serious consequences can occur.

A link to the complete law (Section 3-1101, et seq., of the Labor and Employment Article, Maryland Annotated Code) can be found here:

You’re being sued for a non-employee’s actions—How is this possible?

Imagine a situation where you just learned that one of your best customers is making sexually and racially offensive comments towards one of your employees.  If your business does not act quickly and proactively to address the situation, the conduct of your customer could be imputed to your company.

In a recent case issued by the US Court of Appeals for the Fourth Circuit, Freeman v. Dal-Tile Corporation, the Court ruled that a business can be held liable when it allows one of its customers to create a hostile work environment for one of its employees.   Ms. Freeman alleged that a customer made repeated derogatory and offensive comments in her presence.  Ms. Freeman reported the behavior to her superiors on several occasions, but appropriate action was not taken.  Ms. Freeman eventually went to Human Resources to complain of the incident, and HR took action, however the Court ultimately deemed the actions inadequate. The Court ruled that the employer could be held liable for its customer’s conduct when the employer knew or should have known that the offensive conduct was occurring.  This ruling exposes employers to liability for hostile work environment claims created by customers or other third-parties.  An employer cannot avoid Title VII liability for harassment by adopting a “see no evil, hear no evil” strategy.

In an effort to minimize exposure to these types of claims, a prudent employer should (1) adopt and implement a written anti-harassment policy that includes clear reporting procedures; (2) adopt and implement a written policy describing the specific steps that a supervisor should take if he or she becomes aware of harassment in the workplace; and (3) react promptly and effectively to harassment claims even if the alleged harasser is someone outside of your company.

If you would like more information on this topic, please contact Scott A. Mirsky.

Alert! New Parental Leave Law Affecting Maryland Employers with 15 to 49 Employees.

Beginning October 1, 2014, all Maryland businesses with 15-49 employees will be required to provide six weeks of unpaid parental leave to an employee upon the birth of their child or the placement of an adopted or foster care child. This new law requires that the employer hold the employee’s job for up to six weeks or return the employee to an “equivalent position” when the employee returns within the six week leave period.

While under existing federal law employers with more than fifty employees are already required to grant 12 weeks of leave for various qualifying family and medical events, the new Maryland law is geared to providing employees who work for smaller employers with a watered-down version of the federal Family and Medical Leave Act.  Most significantly, the new Maryland law does not cover medical leave (as it is limited to parental leave) and it only provides for six weeks of leave.  However, medical coverage must be maintained in the same manner as if the employee had not taken leave.  Premiums may be recovered by the employer if the employee fails to return to work after the leave ends.

Nonetheless, for Maryland employers with 15-49 employees, now is the time to begin preparing for this new law.  To ensure compliance, employers should draft a parental leave policy that is consistent with new Maryland law, prepare the necessary forms needed to ensure compliance with the act, and plan on how your business will continue to operate when employees exercise their rights under the new law.

New Hires and Unfinished Business

Thinking of bringing a new person with clients on board or “we like her, she has a nice portfolio of ongoing work.”

As lawyers, we call that having a book of business.  It can be costly for the acquiring firm.  Take the recent case involving the dissolution of Howrey and Simon.  At one time one of the largest firms, it is now a debtor in bankruptcy court in California.  The Trustee sued a large firm that took in some of the departing lawyers claiming the right to its interest in profits realized or to be realized from its work in progress.  Just before voting to dissolve, the Partners adopted into their partnership agreement an “Unfinished Business” provision that said that neither the Partners nor the partnership shall have any claim to clients or matters on-going at the time of dissolution.  Finding this provision to be a fraudulent transfer of assets that could be recovered by its creditors, the bankruptcy judge agreed with the Trustee and wrote that the profits from future unfinished business could be used to satisfy creditors.  In re Howrey LLP, Bkr Case #11-31376 DM (BK ND Cal. Feb. 7, 2014)So let’s assume you have just taken on a new hire who brings on-going work to your firm.  Does he or she, and thereby your firm, have a duty to account for the profits billed to the old firm?  An argument by an extension of Howrey may make you vulnerable.  Shouldn’t your agreement with the new hire have some indemnity or other protection?Otherwise, the initial attractiveness of the new hire may be for naught.

A general counsel whom you have on a monthly retainer primed to think proactively like this may have just saved your firm.

Anger Management in the Workplace

Do you get angry in the workplace?  Are your clients driving you nuts?

Managing anger is a healthy tool and a developing skill for most (yours truly included) – and while the tendency may be to procrastinate on a program of developing healthy approaches, you may be setting a time bomb for a suit over your workplace conditions.

Meditation and candle gazing may work for some, but what about something “practical” during the day while managing stressful projects?  Some things to try include a few deep breaths, imagining the beach or a memory from your last vacation, count to ten (or twenty!!), or walk around the block.  Do I do any of these?  No.Some things more constructive I have found are the following:

a. Sit down with my office policy manual and work at what steps can be taken when this same stressor arises in the future.  If you don’t have such a manual, now is the time to work with your general counsel to develop one.

b. Grade your clients.  That’s right.  Grade them from A to F.  You will find your D and F clients are the source of most of the anger in your firm because of the stress they place on you with unreasonable demands and of course slow or non-payment.Then, draft your letter, with your general counsel’s help, terminating the relationship if possible, or if not, at least setting them on a course for finding your replacement.Your stress will decrease, your happiness will increase, and you will make more money and perform better services for the A and B clients you want to keep.

c. When you do have the most anger – is there a particular time of day, client or type of project?  Any patterns at all can be helpful.  Then spend a few minutes drafting a solution or even a step towards a solution.Deep breathing and proactive measures are not a panacea.  But, if practiced over time, they may provide some improvement.  If not go ahead and yell at us!

A general counsel whom you have on a monthly retainer primed to think proactively like this may have just saved your firm…or your life!

The Benefits of Having a General Counsel

Do you have a general counsel that serves the needs of your design or engineering practice? Do you know what it costs you every year not to have ready access to legal counsel who knows your industry?

Most of us labor under the misunderstanding that a lawyer, like a funeral director, is only to be called upon when absolutely necessary.  If you operate your practice that way, sooner, rather than later, your practice will die.

Good business planning requires legal help.  Some things to think about:

1. What are your thoughts on an ideal design practice?

2. What type of business entity should you have?   LLC? S-Corp? or an LLC choosing subchapter S status for tax purposes?

3. How much capital should the members contribute?

4. How do you bring in new principals?

5. How are profits and (God forbid) losses to be divided?

6. How do you resolve disputes among the principals?

7. Management issues?

8. Technology?

9. Policy and procedures?

10. Should you have employer’s liability insurance?

11. What are the terms and conditions of your contract–should you use AIA forms or some version of your own terms and conditions?

General Counsel whom you have on a monthly retainer primed to think proactively like this may be a lifesaver for your firm or business.

Are non-compete agreements enforceable in Maryland?

Is a non-compete agreement enforceable?

In Maryland, if the terms of the non-compete agreement are reasonable then the Court will generally enforce the agreement. To determine what is reasonable, many factors need to be analyzed. Such as, what is the duration of the restriction? What is the geographic scope of the restriction? What is the scope of work that is being restricted? If the non-compete is narrowly tailored to protect the legitimate business needs of a company, and its terms are reasonable, then the Maryland courts will most likely enforce a non-compete agreement. If on the other hand, the non-compete is overbroad, seeks to restrict activities that are outside of the company’s business or geographic region, or is for too long of a time period, then the Court will not enforce the non-compete agreement.

What are the possible remedies for breaching a non-compete agreement?

If a company wants to take action against a former employee who is violating a non-compete agreement, then the company can hire an attorney to write a cease-and-desist letter asking the former employee to stop breaking the terms of the non-compete agreement. In addition, the company can take immediate legal against the former employee and ask the Court to enter an emergency order for injunctive relief against the former employee ordering him/her to stop violating the non-compete agreement. At a subsequent trial, the company may be awarded monetary damages caused by the former employee’s actions and the company may also be awarded their attorney’s fees if the non-compete agreement specifically allows the company to recover its attorney’s fees.

As knowledgeable employment law attorneys, we can help you navigate and figure out the best way to protect your business, trade secrets, and client base.

Mirsky Policastri Launches New Firm

Scott Mirsky and Gene Policastri, two experienced trial lawyers, have recently launched Mirsky Policastri, LLC. The new firm, headquartered in Rockville, Maryland, focuses on three practice areas: Construction Law, serving primarily architects and engineers; Business Law, providing cost-effective corporate, contracts, and legal advice including contract litigation and real estate litigation; and Employment Law, representing both employers and individuals in employment matters.

Scott has recently tried a number of cases involving the enforcement of noncompete agreements, successfully obtaining preliminary relief pending trial.  He also successfully resolved a proprietary software infringement claim worth over a million dollars.

Gene has this past year successfully arbitrated a water infiltration case and has won an appeal affirming a trial win exonerating a business from millions of dollars of promissory note obligations executed by someone without proper authority.

Office Space and a Vision

We knew we had found the perfect space at 600 Jefferson Plaza, but could we get all the components aligned?  Starting Mirsky Policastri LLC has been exhilarating, fun, and physically exhausting. As we end the first week in December, less than a month into our venture, we have a lot to be proud of and thankful for.

First, we are thankful to our loyal clients who trusted in us and have stuck by us during our transition. MP Law–our nickname, since we dare you to say, “Mirsky Policastri LLC” five times in a row– is a firm based on client service. In our first month as a new firm, we have continued to put client service and quality first and are thrilled to continue to work with our existing client base. Thank you to our clients! Even with the behind-the-scenes efforts of starting up a new venture, we are proud of our continued client service mindset and delivery of quality legal services in November and December.

Second, we are thankful for and will miss our friends and colleagues we parted with at Bromberg Rosenthal LLP. There are so many great memories, fun times, excellent work product, legal strategies, family and professional milestones we shared together.

Now, some behind the scenes insight into what we have been up to this month…

Branding: lots of amazing branding has been delivered this month. We are working hard to get our new name, logo, website and vision out to our clients. We have a logo, letterhead, business cards, updated photos, and a modern look.  A stellar entry sign is ordered and should be installed in the next few weeks.

Facilities and Infrastructure: Our 600 Jefferson Plaza Suite 440 is contemporary and newly built. We love the bright offices and new furniture…most of it has been delivered, but we can’t wait for our conference room tables and our new desk chairs!  We have invested in tools and new technology aimed at providing the best possible services and infrastructure. Our new billing system emails invoices and accepts online, secure credit card payments. We are automating as much as possible and streamlining our communications with you. We have excellent answering services and receive email notifications with messages and voice mails on our smartphones, even from messages left on our desk phones. We are not completely settled, but we are well on our way.

The Little Things: We knew it would be tough, but there are SO many details. We have had fun getting to know our new vendors and they have gotten to know us very well in a short amount of time. We have come a long way from our planning meeting in the Mirsky kitchen to our recent planning meeting at a folding table at the office. By the end of this month, we will be having meetings in our amazing conference room with Skype and video teleconferencing capabilities. The details are endless, but we are creating some memories… registering our URL for this web site one late evening, tracking the landlords all over Rockville to get our new keys, realizing that our furniture would take a few weeks to be delivered, researching three-hole-punch machines, buying single service coffee k-cups that meets everyone’s tastes and preferences, finding the best prices on copy paper, showing our families the new office space, ordering endless amounts of office supplies, and many more memories to come.

Follow our blog to get more updates on our progress. We will share legal news and news about our firm. We will also be announcing several open houses to be hosted at our new office in January.

Here are a few early photos of our office space…

Mirsky Policastri LLC Entry and Conference Room – before furniture

New Receptionist Station… figuring out how to best place it in the room

Mirsky Policastri LLC Entry

Future attorneys running weekend errands with dad