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  • November 30, 2016

Employee Benefit Plans and the Voluntary Fiduciary Correction Program

The Voluntary Fiduciary Correction Program (“VFCP”), sponsored by the Employee Benefits Security Administration of the Department of Labor, provides relief from civil liability and an exemption from excise taxes under the Internal Revenue Code (“IRC”). VFCP is designed to encourage self-correction of certain violations and fiduciary breaches of the Employee Retirement Income Security Act of 1974. VFCP covers many different transactions. One of the most commonly violated transactions that it covers is delinquent contributions. Plan sponsors have a fiduciary responsibility to ensure that participant contributions are deposited in a plan’s trust on a timely basis. Participant contributions are defined as…

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  • January 27, 2016

Robert L. Ferguson, Jr. and Ann D. Ware Win Another Coverage Case in the United States Court of Appeals for the Fourth Circuit

  Robert L. Ferguson, Jr. and Ann D. Ware won another appeal argued before the United States Court of Appeals for the Fourth Circuit.  This is their second successful 4th Circuit appeal in the span of a few months.  In this most recent matter, Mr. Ferguson argued that a Crew Provision in a marine insurance policy was unambiguous and that a reasonably prudent layperson construing the policy would conclude that there was no coverage for the Appellant.   In an unpublished opinion, the Fourth Circuit agreed with Mr. Ferguson and affirmed the United States District Court for the District of Maryland’s…

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  • February 16, 2015

Maryland and DC Employers Required to “Think Outside the Box” or Rather Ban it Altogether

Many people like to use the cliché “think outside the box.”  In most instances the phrase is used to encourage someone to be creative and look for ideas outside of what is common or the norm.  New laws in three localities in Maryland and in the District of Columbia are not simply encouraging employers to think outside the box, but requiring them to “Ban the Box” entirely.  The penalties for failure to do so are significant. These laws have been termed “Ban the Box” legislation because, in addition to other provisions, the new laws ban employers from having a box…

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  • December 10, 2014

Must a Public University Provide Closed Captioning for Hearing-Impaired Spectators Attending Live Athletic Events?

Dr. Joseph Innes, Daniel Rinas, and Sean Markel (“Plaintiffs”) filed a lawsuit against the University of Maryland claiming that the university does not provide an equal opportunity to enjoy, benefit from, or participate in watching athletic events equivalent to that of individuals without hearing disabilities. The Plaintiffs, all of whom have a hearing disability, contend that the university excludes them from participating as spectators (and as fans) of live sporting events by failing to reasonably accommodate their disability. The Plaintiffs brought this action under Title II of the Americans with Disabilities Act of 1990 (the “ADA”), and the Rehabilitation Act.…

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  • December 5, 2014

Employee Courtesy and Other Workplace Conduct Standards: Why The NLRB Says They May Violate Federal Law

Most employers think (incorrectly) that they can decide what conduct will be deemed appropriate in their workplace.  What they don’t appreciate is that the federal government is looking over their shoulder and, increasingly, ruling that many common sense standards for workplace behavior violate federal law. Take this quick quiz. Is it permissible to prohibit an employee from expressing a “discourteous or inappropriate attitude” towards customers, co-workers, or the public?  Can you discipline an employee for making false or derogatory comments about coworkers and management?  Can you tell employees that when they are in the community they should represent your business…

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  • November 4, 2014

Anti-Retaliation Protections Under the Affordable Care Act

Employers are typically familiar with prohibitions against retaliating against their employees for engaging in protected activity under a statute.  Employers, however, may be unaware of additional anti-retaliation provisions that have been established under the Affordable Care Act (“ACA”). One of the lesser known provisions of the ACA is its amendment to the Fair Labor Standards Act (“FLSA”) to protect employees who receive certain benefits under the ACA or who report violations related to their employer’s failure to meet certain requirements of the ACA.  Specifically, Section 158 of the ACA, which creates Section 18C of the FLSA, prohibits employers from discharging,…

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  • October 1, 2014

Maryland Legislature Increases Employee Leave: The Parental Leave Act

On October 1, 2014, a new Maryland law expanding rights of employee leave took effect. Codified as Maryland Labor and Employment Article sections 3-1201 through 3-1211, the Maryland Parental Leave Act (MPLA) requires certain employers to allow eligible employees to take unpaid leave for very narrow and specific reasons. Who is Affected? The MPLA affects Maryland employers with at least fifteen but not more than forty-nine employees. For purposes of counting, employees are those persons who have worked each working day during a period of twenty calendar workweeks in the current or preceding calendar year. A person is eligible for…

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  • May 6, 2014

Can Employers Become Contractually Bound to the FMLA?

The Family and Medical Leave Act (FMLA) protects employees who work for employers that have more than 50 employees within seventy-five miles of the employee’s worksite.  However, the United States District Court for the Northern District of Illinois has suggested that employers, even if not specifically covered by the FMLA, may bind themselves to the terms of the FMLA through certain oral and written statements made to their employees. In Reaux v. Infohealth Management Corp., 2009 WL 635468 (N.D.Ill.), there was no dispute that the employer employed fewer than 50 employees within seventy-five miles of the employee’s worksite.  However, the…

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  • April 29, 2014

OFCCP Adopts Final Rules Expanding Veteran Hiring Requirements for Federal Contractors

The past few years have seen a flurry of regulatory activity by the Department of Justice’s Office of Federal Contract Compliance Programs (OFCCP).  A previous post discussed the newly-revised rules concerning disability hiring requirements for federal contractors.  Another important development has been the adoption of new rules imposing requirements for the hiring of veterans, now codified as Title 41 of the Code of Federal Regulations, Part 60-300.  Like the disability-related rules, these amendments took effect on March 24, 2014. The newly-amended rules impose several new requirements that will change the way federal contractors do business.  Among the most important are…

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  • March 25, 2014

OFCCP Adopts Final Rules Expanding Disability Hiring Requirements

Over the past several years, the Department of Justice’s Office of Federal Contract Compliance Programs (OFCCP) has undertaken several revisions to its regulations governing equal employment opportunity.  One of the more important revisions amended Title 41 of the Code of Federal Regulations, Part 60-741: Affirmative Action and Nondiscrimination Obligations of Federal Contractors and Subcontractors Regarding Individuals with Disabilities.  The initial advanced notice of proposed rulemaking was published in July 2010; 400 comments and several revisions and notices later, the final rules were adopted and published in the Federal Register on September 24, 2013. These rule amendments become effective March 24,…

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