Revisited a Year Later: The Montgomery County Earned Sick and Safe Leave Law Turns One

A year ago, Montgomery County became one of the first counties in the nation to require that employers provide employees with paid sick leave. In general, under the Montgomery County Earned Sick and Safe Leave Law employees must be allowed to earn a minimum of 56 hours of paid sick and safe leave each year.  If the employer has few than five employees, then the employee must be allowed to earn at least 32 hours of paid leave and 24 hours of unpaid leave each year.  While most employers comply with these requirements (and many even provide more than 56 hours of paid sick leave on an annual basis), compliance with some of the detailed requirements are more problematic.  For example, an employer in Montgomery County must:

  • Allow its employees to carry over 56 hours of leave to the next calendar year, unless an employer gives its employees their full leave entitlement at the beginning of each calendar year.
  • Allow its employees to accrue paid sick leave from the first day of employment.
  • However, an employer can restrict the employee from using paid sick and safe leave during the first 90 days of employment.
  • Provide its employees with a written statement (or an online portal) which shows the employee how many hours of paid time off they have available to use.
  • Notify their employees that they are entitled to sick and safe leave.  The notice must comport with certain requirements or include the model notice prepared by Montgomery County.
  • Keep records concerning employees accrual or use of earned sick leave for at least three years.

All employers who have employees located in Montgomery County should review their leave polices to ensure compliance with the Montgomery County Earned Sick and Safe Leave Law.

For more information on employment policies, please contact Scott A. Mirsky at (301) 664-7710 or samirsky@mirskylawgroup.com.

Disclaimer: The content of this blog is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. Laws differ by state and jurisdiction. The information on this blog may not apply to every reader. You should not take any legal action based upon the information contained on this blog without first seeking professional counsel. Your use of the blog does not create an attorney-client relationship between you and Mirsky Law Group, LLC.

Three Items to Check when Updating an Employee Manual

Every 12 months it is a good idea for employers to review their Employee Manual to make sure that their employment policies are up to date, both with the employer’s current protocols and with any changes in the laws in the various jurisdictions where they do business. Here are three items to check when reviewing an Employee Manual.

First, an Employee Manual should make clear that all employees are at-will employees, which means that either the employee or employer may end the relationship at any time. The Employee Manual should make clear that the employer has the right to terminate the employment relationship at any time, with or without case, and with or without notice.  Likewise, the employee is free to resign at any time. The fact that an employee is at-will employee should be stated at the beginning of the Employee Manual, throughout the Employee Manual, and as part of an acknowledgment form that the employee signs when they receive the Employee Manual.

Second, the Employee Manual should contain a clear and conspicuous disclaimer that the Employee Manual is not a contract. This disclaimer should be both in the beginning of the Employee Manual and, again, made part of the acknowledgment form that the employee signs.

Third, many state and local jurisdictions have recently adopted laws that deal with leave benefits. Some of these laws require a certain amount of unpaid leave, while some even require employers to provide employees with paid leave.  In addition, all employer who have at least 50 employees working in a 75 mile radius must comply with the federal Family and Medical Leave Act (FMLA), which requires an employer to provide unpaid leave for specific family and medical circumstances.  This area of the law is rapidly changing and leave polices need to keep up with the new legal requirements.

Of course, these three items are just the start of a long list of items that must be reviewed when updating an Employee Manual. While this process can be time consuming, a well-written Employee Manual can help with workplace efficiency, can assist in making sure that there is consistency in employment policies, and can be used as tool to defend an employer in a lawsuit if an employee brings a claim against the employer.

For more information on employment policies and Employee Manuals, please contact Scott A. Mirsky at (301) 664-7710 or samirsky@mirskylawgroup.com.

Disclaimer: The content of this blog is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. Laws differ by state and jurisdiction. The information on this blog may not apply to every reader. You should not take any legal action based upon the information contained on this blog without first seeking professional counsel. Your use of the blog does not create an attorney-client relationship between you and Mirsky Law Group, LLC.

Freelancers are taking over the workplace!

According to one recent 2016 study, 55 million Americans are working as freelancers (which is 35% of the US Workforce). The use of freelancers by businesses raises all sorts of legal questions, but most significantly is the issue of worker misclassification.  Businesses routinely classify freelancers as independent contractors, not employees.  Is this correct?  It depends on a variety of factors.  In general, if the freelancer is truly independent (meaning that the business does not control how the freelance does his/her work) and the freelancer operates as an independent business, then classifying the freelancer as independent contractor would most likely be correct.  However, the line between who is an employee and who in an independent contractor can sometimes be difficult to determine. Unfortunately, different laws use different tests to determine if the worker is an employee or independent contractor.  Most of the tests focus on (a) whether the business controls how the freelancer performs the work, (b) whether the business controls the “economic realities” of the relationship; and (3) whether the worker has an independent business.  Great care must be taken to ensure workers are properly classified.  A business cannot summarily decide that a particular worker is an independent contractor, rather the relationship and interaction between the business and the freelancer needs to be examined.  The consequences for misclassifying a worker can be significant, as various statues requires violators to pay fines, taxes, unpaid wages, and other damages.

For more information on worker misclassification issues, please contact Scott A. Mirsky at (301) 664-7710 or samirsky@mirskylawgroup.com.

Disclaimer: The content of this blog is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. Laws differ by state and jurisdiction. The information on this blog may not apply to every reader. You should not take any legal action based upon the information contained on this blog without first seeking professional counsel. Your use of the blog does not create an attorney-client relationship between you and Mirsky Law Group, LLC.

Minimum Wage in Montgomery County Set to Increase Again

While is seems like the minimum wage in Montgomery County, Maryland was just increased to $10.75, employers are now less than 90 days away from the next increase. On July 1, 2017, the minimum wage will rise to $11.50 per hour.   While this increase is not a surprise, as the legislation approving this lift in the minimum wage rate was passed several years ago, the fact remains that Montgomery County will have the highest minimum wage in the State of Maryland.  However, Prince George’s County, Maryland will shortly follow and increase its minimum wage to $11.50 on October 1, 2017.   Employers in the District of Columbia are already required to comply with the $11.50 minimum wage.

As a reminder, for all hours worked over 40 in a given work week the employee must be paid time-and-one-half. In other words, all overtime hours must be paid at a rate of $17.25/per hour.

For more information on minimum wage and overtime issues, please contact Scott A. Mirsky at (301) 664-7710 or samirsky@mirskylawgroup.com.

Disclaimer: The content of this blog is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. Laws differ by state and jurisdiction. The information on this blog may not apply to every reader. You should not take any legal action based upon the information contained on this blog without first seeking professional counsel. Your use of the blog does not create an attorney-client relationship between you and Mirsky Law Group, LLC.

Impending FLSA Regulations are On-Hold

In a blog I posted on June 25, 2016, “Time to Start Preparing for The New Overtime Regulations”, I discussed what was slated to become a major change to the Fair Labor Standards Act (FLSA) on December 1, 2016.  Well, not so fast.  Last month, a federal judge in Texas issued a Court Order blocking the implementation of the new regulations which would have increased the minimum salary to $47,476 annually for an employee to qualify for the executive, administrative or professional exemptions (the so called “white collar exemptions”).   While employee-rights groups celebrated the new regulations, many business groups felt that the new regulations put extra financial pressures on businesses that were already having difficulty surviving in the current economy and that the Department of Labor had overstepped its authority with the new regulations.  Thus, lawsuits were filed which culminated in the federal judge’s decision, which applies nationwide, and basically keeps everything status quo for the time being and employers do not have to make changes by December 1, 2016.

However, while I was presenting seminars on this topic during the past few months, I discovered that many employers are still misclassifying their employees and, as a result, may be failing to pay required overtime.  Many employers simply believe that they can pay their employees a non-fluctuating salary, and somehow they are magically in compliance with the FLSA.  This is not the case.  An employee’s job duties dictate if he/she is entitled to overtime.  The fact that the federal judge has stayed the impending regulations, does alter the basic rule that employees whose job duties do not qualify for an exception under the FLSA must be paid overtime.

For more information on the classification of employees under the Fair Labor Standards Act, please contact Scott A. Mirsky at (301) 664-7710 or samirsky@mirskylawgroup.com.

Disclaimer: The content of this blog is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. Laws differ by state and jurisdiction. The information on this blog may not apply to every reader. You should not take any legal action based upon the information contained on this blog without first seeking professional counsel. Your use of the blog does not create an attorney-client relationship between you and Mirsky Law Group, LLC.

Time to Start Preparing for The New Overtime Regulations

**SEE UPDATED BLOG POSTED DECEMBER 2016**

Starting on December 1, 2016, the minimum salary level to qualify for the executive, administrative or professional exemptions (the so called “white collar exemptions”) under the Fair Labor Standards Act (“FLSA”) will increase to $47,476 annually.  This is a big jump from the previous minimum salary level of $23,000 annually.  Put in simple terms, white-collar employees making less than $47,476 will not meet the test for the “white collar exemption” and the employee will be eligible for overtime pay if they work over 40 hours in a given week.

What should employers do to prepare?

Make a list of all employees (and their salaries) who are currently exempt under the “white collar exemptions.”  If they are paid $47,476 or more then no change is warranted (assuming they meet the duties test of the “white collar exemptions” which are not changing under the new regulations).  On the other hand, if the employee makes less than $47,476 they will be entitled to overtime under the new regulations.  Employers have a few options to handle this situation.

  • Raise the employee’s salary to $47,476 or higher;
  • Do not increase the employee’s salary but make sure the employee does not work more than 40 hours in a given week; or
  • Do not increase the employee’s salary and pay the 1.5 overtime premium for all hours worked over 40 hours in a given week.

This decision should not be made until after considering the financial impact of each option and after thorough discussion with a competent employment law attorney.  The author of this blog post, Scott A, Mirsky, Esquire, assists businesses deal with complicated employment issues and employment litigation.   He can be reached at (301) 664-7710 or samirsky@mirskylawgroup.com.

 

Disclaimer: The content of this blog is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. Laws differ by state and jurisdiction. The information on this blog may not apply to every reader. You should not take any legal action based upon the information contained on this blog without first seeking professional counsel. Your use of the blog does not create an attorney-client relationship between you and Mirsky Law Group, LLC.