Employment Law

Unemployment Insurance, Baltimore Shutdown Edition

The following information may be useful for readers who live or work in or near the scenes of recent disturbances in Baltimore. By reading this, you do not become my client.  I might be suing you, and so I don’t want to become your attorney by you reading this. Statutes cited are from the Maryland Unemployment Insurance Law, Md. Code Ann. LE § 8-101 et seq.

1) If a worker loses her job because the business got burned down, can she get unemployment in MD?

Maybe. In general employees who lose their job “through no fault of their own” per the general language of § 8-102(c) are eligible if otherwise qualified and not disqualified for other reasons. Losing one’s job due to arson is an example of this, unless the worker purposefully or, perhaps, negligently burned or allowed to be burned her place of employment.

2) If a worker loses her job due to the curfew, can she get unemployment in MD?

Maybe. The curfew is a strong public policy in Baltimore City; people are being held in Central Booking for violating it right now (April 30). The question is very fact-specific. A bar might have to shut down if its customers cannot walk the street or its workers commute in or out. On the other hand, night-shift work is often 10PM-6AM, and the curfew might not affect those workers directly. Most workers are permitted to commute under the curfew, but curfew might interrupt other services necessary to the business or to getting to work (transit interruptions.)

3) If I get locked up, can I get unemployment?

Maybe, but it’s doubtful. While you are locked up, you cannot get unemployment for multiple reasons, most specifically because you are not “able, available and actively seeking work” while a jail or correctional facility is preventing you from working. If you get locked up and released, a lot depends on what led to the lock up and what happened after.

Whether getting locked up is either a form of “misconduct” (8-1002or a “voluntary quit” depends on the details. The Unemployment Insurance Division has opined that the mere fact of incarceration, without later conviction, does not constitute a “voluntary quit” from employment, provided that the worker notifies the employer. Lansinger v. Baltimore County Fire Department, 1305-BR-82. Whether workers locked up in Central Booking with dubious access to communications, per recent reports, would be excused from not contacting their employer immediately is debatable.

The other issue is whether getting locked up constitutes “misconduct” under § 8-1003 or, by analogy, related §§ 8-1002 or 8-1002.1 To effectuate a misconduct disqualification, an employer must fire a worker as a disciplinary response to misconduct, which is “a transgression of some established rule or policy of the employer, the commission of a forbidden act, a dereliction of duty, or a course of wrongful conduct committed by an employee within the scope of his employment relationship, or on the employer’s premises.” Hollenbaugh v. Whitcraft Transmission 1101-BR-85 If the firing is not the result of a disciplinary choice, or it is not “connected with the work”, it does not constitute a basis for a misconduct disqualification. The first duty of the worker, however, is to show up for work. The issue then becomes whether one’s misconduct that led to the arrest is sufficiently connected to the work, through the risk of arrest and schedule interruption, to constitute “misconduct connected with the work.” Since riot – the common-law charge under which many people have been charged or arrested in Baltimore – carries no maximum penalty, one who commits riot probably risks arrest, high bail ($500,000.00 in some recent cases) and indefinite incarceration in a way that constitute an act of misconduct connected to the work.

4) If I get fired for what I put on Facebook about the demonstrations, can I get unemployment?

Maybe. It’s illegal for an employer in Maryland to demand the passwords to social media accounts such as Facebook. However an employer is at liberty to read whatever is open to be read, and may take offense and even fire a worker for online (or non-online commentary.) The right of the employer under at-will employment to fire a worker is a separate question from whether a worker’s online activities constitute a transgression or dereliction connected to the work.

If your job relates to public safety, public health or administration, might be a good idea to run your actual and proposed social media feed by your own attorney before you make commentary.

5) What if I cannot get work for a while in the face of this unrest?

Unemployment lasts up to 26 weeks, depending on worker eligibility. Under some circumstances, workers may be eligible for extended unemployment benefits that are funded in part by Congress.

6) What if I have more specific questions about my eligibility?

You need to consult with an attorney. Some attorneys are working pro bono in the aftermath of the recent unrest. I cannot take on much pro bono work myself in my Montgomery County practice, but I would be happy to help pro bono callers get to pro bono resources in Baltimore and the surrounding area.

 

Posted by Bruce Godfrey, 0 comments

DLLR: Prison inmates received unemployment

Baltimore Sun, March 7, 2015:

The audit of the Division of Unemployment Insurance, which was released Friday, found that the agency did not periodically review whether people getting unemployment benefits were incarcerated, had the same address as others also getting benefits, or were DLLR employees. In a sampling, auditors found that four incarcerated people were paid about $17,700 in benefits between June 2012 and December 2013.

I am surprised that it was not much more, especially after counting people who are only locked up for very short periods while they are getting benefits. $17,700 is about 40 weeks of max benefits or little less than 2 beneficiaries maxing out on 26 weeks of benefits over 18 months out of a total Maryland population of perhaps 4 million adults. The minimum UI unit is a week of benefits; not everyone gets the maximum payment in a UI week, but this is not massive fraud or overpayment.

Posted by Bruce Godfrey in Maryland law - general, Unemployment, 0 comments

Friolo v. Frankel: 14 years of Maryland litigation and still going strong

Friolo sued Frankel under the Maryland wage payment and collection statute, and the rest has been 14 years of trial and appellate history, including the appointment of a special master and three trips to Maryland’s highest court.  A lot of the fighting has dealt with attorneys’ fees, specifically the reasonableness of requested fee-shifting under Md. Code Ann., Labor and Employment article, §3-507.2.

From the very recent opinion of Judge Wilner, specially assigned to this case after his retirement, I give you the first paragraph and last sentence thereof.

“This case is making its third appearance in this Court, having visited the Court of Special Appeals twice and having occupied the attention of the Circuit Court for Montgomery County on three occasions, one of which involved two separate proceedings. Like Kaufman and Hart’s man who came to dinner, it is wearing out its welcome….

“We would admonish Friolo and Goldsmith [ed. Plaintiff’s counsel] to be mindful of the risks of excessively gilding the lily and suggest to both parties that it is not too late to negotiate a settlement.”

For those poorly formed in the American theatrical tradition such as myself, this is a link to Wikipedia’s entry on The Man Who Came to Dinner.  Since I have no culture, I probably would have gone with Groundhog Day.

Posted by Bruce Godfrey in Employment Law, Maryland law - general, Practice of Law, 0 comments

Unemployment and Severance Pay: Watch Out

Workers who receive severance pay are generally disqualified from receiving unemployment benefits for the period over which the severance accrues. This is true whether the severance is paid in a lump sum or in the payment method by which regular salary or wages were paid.

However, this is not the trap.

The trap is that severance is itself not subject to unemployment taxes; employers don’t pay premiums to the UI Division for severance. Severance is subject to income taxes and FICA, but not to UI taxes.

Why does this matter?

A worker who receives severance may fail, particularly if the severance period is lengthy and if the worker is in a higher-income field where jobs pay well but are scarce, to earn 10 times her weekly benefit amount in UI-taxable wages during the applicable benefits year as required by statute. In practice, someone on severance can earn out her severance, become eliglble for unemployment and then be disqualified.  Further, if the worker contacts the UI Division for unemployment benefits during severance, it may work as a Catch-22: the worker has established a benefits year during which no benefits are payable (due to severance), then may be “gotcha-ed” out of a more favorable benefits year due to the lack of earnings.

The problem is that UI Division publications encourage workers to apply for benefits immediately upon becoming unemployed, whether they are getting severance or not. For some workers, that advice is counter-productive, or at least deserves closer review and additional advice from legal counsel. Someone receiving severance is “unemployed”, but just disqualified under most circumstances. There is no provision to “fix” a poorly-chosen benefit year; it must start from the first claim/application for UI benefits.

Bottom line: if you or your client may be getting severance, don’t apply for UI benefits without first undertaking careful, detailed analysis of what the eligibility requirements are for that worker not in theory, but in practice.

Posted by Bruce Godfrey in Employment Law, Maryland law - general, Unemployment, 1 comment