Schmidt, Dailey & O’Neill, L.L.C.Schmidt, Dailey & O’Neill, L.L.C.2023-12-07T08:14:26Zhttps://www.sdolaw.com/feed/atom/WordPress/wp-content/uploads/sites/1503195/2020/07/cropped-Fav-icon-min-32x32.jpgOn Behalf of Schmidt, Dailey & O’Neill, L.L.C.https://www.sdolaw.com/?p=467822022-08-09T15:08:50Z2022-07-28T14:34:12ZWhen is an injury not covered by workers’ compensation?
To be eligible for workers’ compensation in Maryland, the worker must have suffered an injury. This injury must have been an accident. If the worker injured themselves on purpose, they cannot pursue workers’ compensation.
In addition, to be eligible for workers’ compensation in Maryland the worker’s injury must “arise out of employment.” This means that they are injured performing duties you require them to perform. The injury must arise from a job-related risk or danger. You are not responsible for workers who are injured in ways that are not related to their job.
A worker’s injury must also have come about within their “course of employment.” This refers to the time, location and circumstances of the incident that led to the injury. You are not responsible for injuries that take place outside of work hours, at a non-job-related location or in circumstances that have nothing to do with the worker’s job.
You may not be responsible for all injuries
Workers’ compensation can cover many types of accidents that occur in many ways and in many locations. However, just because an injury occurred does not mean that, as an employer, you are responsible for the injury. If your worker does not meet all the elements of a valid workers’ compensation claim, you are not responsible for paying benefits.]]>On Behalf of Schmidt, Dailey & O’Neill, L.L.C.https://www.sdolaw.com/?p=467782022-06-09T22:06:01Z2022-06-09T22:06:01ZCould the candidate claim discrimination?
In most cases, you can rescind an offer unless you already signed an employee to a contract. That doesn’t mean the candidate won’t consider taking legal action. However, without a contract, they wouldn’t have valid grounds unless they had reason to believe it was because you learned they were part of a group that’s protected from employment discrimination under the law.
Say you interviewed a person via Zoom, and when they decided to drop off their signed offer letter in person, you saw they were in a wheelchair. Rescinding an offer afterwards (even if it had nothing to do with that) could look problematic. That doesn’t mean you can’t do it. However, be prepared to provide evidence of your reason(s) for revoking the offer.
Preventing problems before they start
You can minimize your chances of having to deal with a disgruntled candidate (whom you may actually want to hire later) by doing all of your due diligence on them before making an offer. If you’re eager to make them an offer before another company snaps them up, include the necessary caveats in your offer letter – such as stating that the offer is pending results of all reference and background checks and any drug or other testing that’s required.
Having legal guidance as you draft your offer letters and contracts – as well as throughout the hiring process – can help you avoid expensive and time-consuming litigation down the road.]]>On Behalf of Schmidt, Dailey & O’Neill, L.L.C.https://www.sdolaw.com/?p=467472022-04-04T09:23:56Z2022-01-31T12:10:59Zhostile work environment, and wrongful termination litigation. The stakes in these cases can be high, too, especially given that they are sometime high profile. Your company’s reputation can take a hit, and any judgments levied against it can shake its financial stability to its core. It can reduce worker morale, decrease retention, and affect recruitment. Overall, one of these lawsuits can be devastating, which is why you need to know how to protect your interests in the event that your business faces allegations of wrongdoing.
How do I protect my business from these claims?
Fortunately, there are a lot of ways to reduce risk here. Let’s look at ways to protect and defend your business from sexual harassment and the claims that are often associated with them.
Training: Ongoing, consistent, and thorough training on sexual harassment can be a great preventative measure, but it can also be key to your defense. It can lay a framework for what your employees are supposed to do if they suspect that sexual harassment has occurred, which then gives you something to look back at in the event that legal action is taken. If the employee failed to follow company policy in reporting sexual harassment, then it’s going to be more difficult for him or her to show that you, as the employer, knew or should have known about the harassing behavior. So, make sure that you have clear policies and practices in place.
Discipline: Your discipline system needs to be swift and clear in these instances. Stalling on taking action on allegations of sexual harassment can look bad in legal proceedings, and it can lead to even more harassing behavior in the workplace. Have policies in place so that your human resources department knows exactly what it needs to do when sexual harassment allegations are levied.
Build affirmative defenses: While training and discipline can help you build your defense in one of these cases, you’re probably still going to have to prove some other legal elements if you hope to escape liability. The onus likely will fall on you to prove your affirmative defense if the victim can clearly show that sexual harassment by a supervisor or co-worker has occurred. In the event that no adverse employment action was taken against the victim, then you’ll want to gather evidence showing that you acted promptly and reasonably to stop and correct the harassing behavior and that the victim failed to avail himself or herself of corrective or remedial opportunities offered. Keep in mind that in many of these instances you’re better positioned if you can show that you either didn’t know about the harassing behavior and that there’s no way that you should’ve known about it.
Build the compelling defense that you need to protect your business
These are just some of the steps that can be taken to protect your business from sexual harassment allegations. There may be other legal strategies that you can deploy in your case, such as attacking the plaintiff’s credibility based on delayed reporting of the incidents or other factors that attack the plaintiff’s character for truthfulness.
What’s important to remember is that you have options. And with so much on the line in your case, you need to be diligent in assessing those options and acting on those that best position you for success. Attorneys who are experienced in this realm may be able to assist you in developing the legal strategy that is necessary to protect your interests, so don’t hesitate to reach out for assistance if you feel like you could use an aggressive advocate on your side.
]]>On Behalf of Schmidt, Dailey & O’Neill, L.L.C.https://www.sdolaw.com/?p=467462022-04-04T09:24:04Z2021-10-29T10:50:27ZWhat is EPLI?
EPLI is insurance coverage that protects businesses against lawsuits brought by employees claiming their rights as an employee were violated by the employer. These types of lawsuits are on the rise, according to the Insurance Information Institute. EPLI can protect against claims of sexual harassment, discrimination, breach of contract, wrongful termination and more. The type of EPLI coverage a business needs depends on the type of business being run, how many employees work at the business and other risk factors, such as prior lawsuits. EPLI reimburses businesses against the cost of having to defending themselves against a legal claim.
How can businesses prevent employee lawsuits?
Having insurance can help when an employer is sued, but there are a variety of tactics businesses can take to minimize the change that they will be sued by an employee in the first place. Effective hiring programs can protect against discrimination claims. In addition, corporate policies should be included in employee handbooks as well as posted throughout the workplace, so there is no confusion. Having a proper internal process for handling instances of alleged harassment or discrimination can also help avoid a lawsuit. Finally, if there is a dispute keep a paper trail by documenting all steps you took to try to resolve the dispute.
What happens if you are sued by an employee?
Unfortunately, even if you have EPLI you may still be sued by an employee, and most EPLI policies do not cover everything that could possibly happen leading up to a lawsuit. If your business is facing an employment law claim brought by an employee, you will want to take the appropriate actions to address the claim in a way that reaches a reasonable and satisfactory resolution.
]]>On Behalf of Schmidt, Dailey & O’Neill, L.L.C.https://www.sdolaw.com/?p=467152022-04-04T09:24:10Z2021-07-29T11:00:08Zemployee handbook to be considered a binding contract it is important to use the correct language.
Business policies
Most businesses in Baltimore have policies governing workplace behavior and operation. Oftentimes these policies are laid out in an employee handbook. Such policies may include dress codes, whether workers can return products and whether employees can eat or drink on the job.
Business contracts
Business contracts are different from mere policies. Contracts may be oral or written but they exist between a business and the employees. Business contracts with employees may include noncompete agreements, confidentiality agreements and other appropriate actions between employees and employers.
What is the difference between policies and contracts?
Policies and contracts are different in the way they are enforced. If a party to a contract breaches the contract, they could face a lawsuit against the business. On the other hand, a business policy cannot lead to a lawsuit unless the terms of the policies were also included in a contract that was ultimately breached. Thus, businesses should be careful when including promises in its business policies. If not, courts have in the past considered that in such situations an implied contract exists that should be enforced.
Learn more about business law
It is essential that an employee handbook does not contain provisions that can be construed as a business contract. If it does, the employer could face legal action brought by an employee. This post is for educational purposes only and does not contain legal advice. Our firm’s webpage on employment law for employers may be a useful resource for those who want more information on this topic.
]]>On Behalf of Schmidt, Dailey & O’Neill, L.L.C.https://www.sdolaw.com/?p=467142022-04-04T09:24:17Z2021-04-27T07:32:14Zdefend yourself and protect your interests. This is no small feat, especially if the evidence seems stacked against you. But there’s a significant probability that you’ve got some defense options available to you that could either minimize your eliminate your exposure.
How to build contributory negligence arguments
As you probably know, Maryland is a contributory negligence state, meaning that recovery on a tort claim will be denied if the plaintiff was even 1% at fault. This leaves you in a strong position. All you have to do is show the person who is suing was partially at fault for his or her injuries, then you’ll escape liability altogether.
But how do you go about building a contributory negligence argument? It depends on the facts at hand and the type of case you’re dealing with. For example, in a car or truck accident case, you might be able to show that the plaintiff was engaging in distracted drive, was driving too fast, or was following too closely when the accident occurred.
Evidence of these facts might not be readily apparent, though, which is why you might want to conduct an accident reconstruction where an expert uses the laws of physics to analyze the facts and determine how, exactly, the wreck occurred and who is to blame.
In a defective product case, you might be able to show that several actions taken by the plaintiff invited the harm and therefore constituted contributory negligence. For example, a consumer might modify a product or use it in a way that is counter to its intended use. Some consumers even fail to abide by warning labels, which can also constitute contributory negligence.
Can you shift the blame to a third-party?
Even if you can’t show contributory negligence, you still might be able to avoid liability. In many tort cases, the facts are complex and it’s hard to tell who was at fault for the injuries in question. These ambiguities leave the door open for legal argument as far as fault is concerned. There may be one or more third-parties that are responsible for the damage at hand, and, if that’s the case, you need to be prepared to prove it.
Again, you might be able to utilize expert witnesses to provide clarification to the court or at least give you a strong negotiating position when you engage in settlement negotiations. But you can also depose witnesses and gather relevant documents, including police reports, hospital records, and even email correspondence with the injured party.
Take the holistic approach you need to your case
There are a lot of ways that you can try to limit your liability in tort claims. But you can’t afford to leave your case to chance. Instead, you need to be aggressive in approaching every claim that is levied against you. You need to know the rules of trial procedure, the rules of evidence, and statutory and case law that might apply to your case. Only then can you take the holistic approach to your case that you need to protect your interests.
Although you might have a lot of options at your disposal when it comes to legal representation, we encourage you to choose carefully and only after you have thoroughly vetted those firms that pique your interests. After all, there are only a handful of firms out there that have both extensive experience in this area of the law and a strong track record of success.]]>On Behalf of Schmidt, Dailey & O’Neill, L.L.C.https://www.sdolaw.com/?p=467112022-09-13T13:57:11Z2021-04-05T16:26:43Zways to lessen the burden. Following are some tips that could help your business meet the financial challenges of paying for your workers’ comp coverage.
Prioritize safety: Ways to keep your employees safe include implementing a written safety control program and enacting disciplinary measures for those to neglect safety concerns. Fewer claims means a safer, more productive workforce and lower insurance rates.
Conduct drug tests: A drug free workforce is a safer workforce. Identifying employees with drug and alcohol problems is critical for their safety and the safety of other employees. Also, if a workplace accident occurred due to drug or alcohol use, it may not be compensable.
Document accident scenes: When accidents do occur, thoroughly document them, compiling photographic evidence of the scene, questioning eyewitnesses and gathering other information about how the accident took place. This information will prove crucial in the process of defending against a workers' compensation claim.
Keep an eye out for fraud: If you suspect a claim is fraudulent, let your insurance provider know as soon as possible so they can begin an investigation.
Keeping up with your workers’ compensation obligations can be expensive, but with skilled guidance, you can meet these challenges in an efficient manner. If you have legal questions regarding coverage or claims, speak with an attorney who is experienced in handling workers’ compensation issues for small businesses.]]>On Behalf of Schmidt, Dailey & O’Neill, L.L.C.https://www.sdolaw.com/?p=467042022-04-04T09:24:29Z2021-01-13T19:20:07Zwhen your company faces a discrimination lawsuit:
Your employee will request his or her employment file. You are required to provide it. If you don’t, you can’t use information from the file in a discrimination case that goes to court.
Your business will receive notice of the filed lawsuit. As part of the notice, your business will receive a certain amount of time to respond to the discrimination allegations (for federal cases, the time allotted is 20 days). If your business doesn’t respond to the allegations in that time, the court will rule in favor of your employee by default.
The case will have a discovery period. During this time, the prosecution (representing your employee) and the defense (representing your business) will trade evidence in the case. You may receive depositions from witnesses to the alleged discrimination as part of this process.
Your business and your employee may decide to negotiate a settlement for the lawsuit out of court. You may decide to enter arbitration over the matter, as a more cost-efficient and less time-consuming alternative to court.
Employment discrimination allegations are serious. As a business owner, you want to ensure your business doesn’t violate federal discrimination laws and isn’t a hostile workplace for employees of all genders, races and religions. Investigating and resolving an employee’s compliant about discrimination is an important part of running your business effectively and fairly.]]>On Behalf of Schmidt, Dailey & O’Neill, L.L.C.https://www.sdolaw.com/?p=467022022-04-04T09:24:35Z2020-10-07T23:02:21ZCheck exemption statuses
Some employers misclassify non-exempt employees as exempt to avoid paying them overtime wages. Unless an employee earns a salary, or unless they perform administrative, professional or executive duties, they will qualify as non-exempt under the Fair Labor Standards Act (FLSA). By misclassifying employees, they may be entitled – if they have worked overtime – to pay that they have not received. To avoid a claim, then, you must make sure you have a firm understanding of your employees’ duties. You can use this information to create accurate job descriptions, which you can keep on file to help you stay in compliance with your employees’ exemption statuses.
Keep detailed records
Under the FLSA, you must keep three years of records for every non-exempt worker your business employs. You must also keep payroll records for your exempt employees, though you do not need to record their hours worked.
For all non-exempt employees, you must document, by law:
Their personal information
The number of hours they work per day and per week
Their hourly rates and earnings
Their overtime earnings
Any additions to or deductions from their wages
Their total wages per pay period
The date you paid their wages and the corresponding pay period
By keeping records, you can make sure all your employees receive adequate compensation for the work they perform. If your business does face a claim, consulting these records can help you determine whether it has merit.]]>On Behalf of Schmidt, Dailey & O’Neill, L.L.C.https://www.sdolaw.com/?p=465172022-04-04T09:24:42Z2020-07-14T18:51:09Zinsurance torts and allegations of bad faith, the better equipped they will be to handle potential actions.
The Maryland Insurance Administration (MIA) handles administrative bad faith claims
Typically, insureds must pursue every administrative option for recourse before filing an action. The Maryland Insurance Administration oversees administrative remedies for lack of good faith claims. Cases that the MIA cannot resolve or cases that are exceptions to Md. Code Ann., Ins. § 27-1001 may have to proceed to court.
Civil rulings set long-lasting precedent
Sometimes, insurance companies spend more money investigating and defending a claim than they would simply paying a settlement. Why put so much time, money and effort into investigation and defense? Because the court’s ruling on a case can set a precedent that may have a negative impact on insurers for years to come.
Defense counsel is crucial
With that said, one of the best ways that insurers, self-insured, employers, businesses and other entities can avoid and resolve bad faith claims is by working with insurance defense counsel. Navigating the numerous regulations of insurance law requires knowledgeable legal advice. Though defense may require the allocation of significant resources, it is well worth it to avoid unfavorable settlements or judgments.
Because torts play an incredibly significant role in today’s world. Every insurer must remain aware of the potential for a tort, even involving seemingly airtight insurance policies. This will go a long way toward protecting their bottom line if a bad faith claim does arise.]]>