by Steve LewickyConfusion reigns as new overtime rule is placed in limbo
Maryland employers and workers have reason to be confused about an anticipated expansion of eligibility for overtime pay. In May, the U.S. Department of Labor issued a regulation that would have doubled (to $47,476) the salary threshold at which many workers have a right to receive time-and-a-half pay, for workweeks that exceed 40 hours. The rule also would have indexed to inflation future increases in this threshold. The rule was to have taken effect on December 1, but a few days ago a U.S. District Court judge in Texas issued an injunction barring the rule’s implementation, holding that the Department of Labor may have exceeded its authority in issuing the rule.
The court’s ruling was handed down as Congressional leaders were giving consideration to adjourning earlier than Congress otherwise would have, to preserve the incoming Republican Congress’ ability to legislatively block the new rule in January 2017. Under the Congressional Review Act, adjourning the current Congress early would stop the clock for legislative review until the new Congress convenes. Congress might still go forward with this blocking action in January, despite the Texas court’s injunction, since the injunction could prove to be temporary. In addition, Congressional action would have a nation-wide effect, while the impact of court action could eventually become regionally fractured if some federal Circuit Courts continue to block the regulation, while other Circuits uphold the regulation (should Congress fail to act in January). As long as the ninth seat on the Supreme Court remains vacant, anticipated splits between the Circuit Courts of Appeal on this issue would remain in place, if Congress does not legislatively block the regulation.
Many employers have already informed their employees of pay increases that would take categories of their workers above the regulation’s $47,476 threshold. This new threshold now no longer is legally binding – as long as the Texas injunction remains in place, and/or if Congress blocks the rule in January – yet employers fear an adverse impact on employee morale should they rescind previously-awarded pay increases. On the other hand, honoring previously-announced increases that are no longer necessary in order to keep an employee under the applicable salary threshold would mean incurring salary costs that are not legally required.
by Steve LewickyFederal court challenges political gerrymandering of state legislative districts.
Gerrymandering is a term used to describe the establishment of legislative or congressional election districts in a way that favors the party that controls the redistricting process. The term was first coined to mock an early 19th Century governor of Massachusetts, Elbridge Gerry, whom the Boston Gazette claimed in 1812 was responsible for a state senate election district that resembled a salamander. Crafting election districts for partisan advantage has been part of American political life throughout the country’s history, and Maryland’s current Congressional district map makes clear that the practice is alive and well. Nationwide, however, partisan line-drawing today overwhelmingly favors Republicans, since that party controlled a greater number of state governments at the time of the most recent decennial census.
Historically, courts have been reluctant to interfere in the drawing of legislative districts, considering it to be an inherently political process that should be left to the legislative branch, without judicial interference. About fifty years ago, however, the Supreme Court held that apportionment of legislative districts is subject to judicial oversight under the Equal Protection Clause of the U.S. Constitution. The Court did not hold that political gerrymandering was unconstitutional across the board, but only that the drawing of legislative districts could not disadvantage minorities by having substantially different numbers of voters in different districts. Since the 1960s, courts have intervened to ensure that votes of citizens are weighted equally. If an apportionment scheme violates the principle of one-person-one-vote, it must be justified on the basis of other, permissible legislative considerations, under a high standard of judicial scrutiny.
It was not until the 1980s that the Supreme Court addressed a case in which a political party challenged an apportionment scheme based upon a claim of partisan advantage, as opposed to the protection of the principle of one-person-one-vote. The Court issued plurality opinions in a 1984 case, and again in the early 2000s, which failed to bring clarity to whether, and under what circumstances, courts may overturn an apportionment plan that results in lopsided partisan advantage. The state of the law regarding political gerrymandering has remained in flux.
In the 2012 elections, Republicans won 48.6% of the two-party vote in the State of Wisconsin, yet because of a gerrymandered apportionment plan they won 61 of the 99 seats in the state legislature. In a lengthy 2-1 opinion issued on November 21, 2016, a three-judge panel of the U.S. District Court for the Western District of Wisconsin has now held that the legislative apportionment scheme enacted by the Republican legislature in Wisconsin violated both the First Amendment and the Equal Protection Clause of the 14th Amendment, because it’s aim was to deprive Democratic voters of their fair representation in the legislature. This judicial order is unique because the court accepted the use of a mathematical formula to measure the extent of political gerrymandering, which the plaintiffs in the case referred to as the “efficiency gap.” The formula looks at the number of additional votes cast for the winning party’s candidate, beyond the number of votes cast by the losing side (in other words, the number of “excess” votes cast for the winner, beyond the number needed to win). It divides this “excess” vote number by the total number of votes cast. If parties cast the same number of “excess” votes across the state, the resulting number would be zero, which would be the ideal, non-gerrymandered outcome. By developing a mathematical formula by which the political results of gerrymandering may be measured, this methodology gives opponents a means to persuade the Supreme Court to place constitutional limits on political redistricting. Specifically, this quantification of the process is thought to be directed toward potentially gaining the vote of Justice Anthony Kennedy, whose past writings on the subject focused on this aspect.
Cases such as this one, heard by three-judge panels of a U.S. District Court, are subject to appeal directly to the Supreme Court, without an intermediate appeal to a Circuit Court of Appeals. For this reason, this Wisconsin District Court decision could have a profound effect on American elections relatively soon, should the Supreme Court take up the case after an anticipated appeal is filed.
by Steve LewickyPolicies to include in employee handbooks
Maintaining current employee handbooks is a critical protection for Maryland employers. Here is a short article written in October 2012 by my colleague, Cheryl Brown, listing some recent developments in the law that employers should consider adding to their employee handbooks as we move into the new year.
by Steve LewickyMaryland Court of Special Appeals upholds verdict in favor of Interactive Digital Solutions
The Maryland Court of Special Appeals, in a published opinion issued on December 20, 2012, upheld a jury verdict that was entered by the Circuit Court for Howard County in June 2011 in favor of our firm’s client, Interactive Digital Solutions.
by Steve LewickyCongratulations to Magistrate Judge Grimm on approval of his judicial nomination by the Senate Judiciary Committee
The Senate Judiciary Committee on June 7 approved, by voice vote, the nomination of Chief U.S. Magistrate Judge Paul W. Grimm to a federal judgeship the U.S. District Court for the District of Maryland. If confirmed by the full Senate, Judge Grimm will succeed Judge Legg. Judge Grimm has written extensively on the admissibility and discovery of electronically stored information (ESI).
by Steve LewickyProsecution of an Occupy Wall Street protester may lead to clarification of privacy rights for social media accounts
The Twitterverse has been abuzz about an ongoing criminal prosecution in New York City of an Occupy Wall Street protester named Matthew Harris, and his effort to stop the government from obtaining information from his Twitter account. Mr. Harris was one of the hundreds of protesters arrested during a march across the Brooklyn Bridge. He was charged with disorderly conduct for allegedly walking in the street instead of on the sidewalk. Many of the protesters, including Mr. Harris, maintain that the police directed them off the sidewalk and into the street. The case has received a great deal of attention recently because the District Attorney subpoenaed Twitter records related to Mr. Harris’s account, in the hope that his tweets might refute his claim that the police directed him to move onto the roadway. Harris moved to quash the subpoena.
There isn’t a lot of reported case law on whether people have a legitimate expectation of privacy in information that they voluntarily post on social media sites such as Facebook or Twitter, but the limited number of reported court decisions so far have generally found little or no privacy protection for a social media site user. It was not entirely surprising, therefore, that the judge in Mr. Harris’ case declined to quash the subpoena, finding that Mr. Harris lacked standing to oppose a subpoena directed toward Twitter. The judge reasoned that Twitter, not Harris, owns any information that Harris posted on his Twitter account, because the Twitter terms of service grant Twitter a license to distribute all tweets.
The denial of the motion to quash that was brought by Mr. Harris didn’t end the matter, however, because Twitter then filed its own motion to quash the subpoena. Twitter argued in its motion that, despite the license rights that Twitter users grant to Twitter, the users themselves “own” their posts under Twitter’s terms of service. Twitter also argued that the Stored Communications Act allows users to challenge requests for their material, and that federal law requires a warrant (not just a subpoena) to access users’ communications. The distinction is important because warrants require probable cause, while a subpoena may be issued if authorities merely have a supportable belief that they are likely to uncover relevant information through the issuance of a subpoena. A number of privacy organizations, including the ACLU, the Electronic Frontier Foundation, and Public Citizen, have now filed their own submissions with the court.
Although this case is only in the pre-trial stage, the high visibility that it has garnered and the efforts by multiple organizations to use it as a vehicle for highlighting these privacy issues, mean that this could end up being an important step in the process of sorting out privacy rights of social media users.
by Steve LewickyNLRB issues memo on illegal employee social media policies
The National Labor Relations Board on May 30 issued a memorandum from its acting general counsel, giving detailed examples of company social media policies that the NLRB may find to interfere with protected employee rights under the National Labor Relations Act. The memorandum can be downloaded here.
by Steve LewickyTrial Authentication of Social Network Evidence in Maryland
Here’s a quick Maryland state court trial practice review of the requirements for authenticating evidence that is obtained from online social network postings: The Maryland Court of Appeals in 2011 issued its decision in Griffin v. State, a case in which a criminal defendant was convicted of shooting a bar patron. During the trial, the State sought to introduce the defendant’s girlfriend’s MySpace profile to demonstrate that, prior to trial, the defendant had allegedly threatened another witness called by the State. The printed pages offered into evidence contained a MySpace profile in the name of a pseudonym, describing a particular woman by age and birthday, and with a photograph of an embracing couple. The printed pages also contained the following statement: “FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!” When the defendant’s girlfriend was called to testify at trial, she was not asked about the pages allegedly printed from her MySpace profile. Instead, the State attempted to authenticate the pages as belonging to the girlfriend through the testimony of a police officer, who would testify to how he downloaded the information from MySpace. Among other objections, the defense objected to the admission of the pages by arguing that the State could not sufficiently establish a connection between the profile and posting, and the person who allegedly posted the information. Outside of the presence of the jury, the police officer provided testimony regarding why he believed the subject MySpace profile information was posted by the girlfriend/witness. When the trial judge indicated that he would permit the officer to testify in support of authentication of redacted pages from MySpace, defense counsel agreed to a stipulation to what the officer would say in testimony, in lieu of the officer testifying, and counsel preserved his objection to admissibility. The intermediate Court of Special Appeals upheld admission of the evidence, but the Maryland Court of Appeals overturned that ruling.
The Court of Appeals found that the printed MySpace profile pages were not properly authenticated pursuant to Md. Rule of Civ. Proc. 5-901, holding that there were insufficient “distinctive characteristics” on this particular MySpace profile to authenticate the printout. The court was especially concerned that someone other than the girlfriend/witness might have created the MySpace account and posted the “snitches get stitches” comment. The court explained that “[t]he potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user leads to our conclusion that a printout of an image from such a site requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site in order to reflect that [the girlfriend/witness] was its creator and the author of the ‘snitches get stitches’ language.” In a footnote, the court took pains to distinguish authentication concerns that it had with regard to social network sites from the authentication issues attendant to emails, instant messaging, and text messages. The court opined that these types of electronic communication differ significantly from those involving an online social network profile because email, IM and text messages are sent directly from one party to one or more intended recipients, rather than being published broadly. The court also made clear that it was not suggesting that printouts from social networking sites should never be admitted into evidence, and suggested that avenues of authentication “worthy of exploration” include asking the purported creator whether she created the profile and if she posted the subject information, searching the computer of the purported creator to examine its internet history, or obtaining information directly from the social networking site to link the profile to the purported creator.
The Griffin case establishes significant hurdles that must be overcome by any litigant wishing to authenticate and admit information from an online social network. In conducting discovery and developing trial strategy, counsel should consider if it is feasible to directly question a purported creator of online content as to whether she created the subject content. Obviously, this would not be practical in most criminal cases but may solve the problem in many civil cases. In either type of case, counsel may wish to strongly consider seeking an order permitting a search of the purported creator’s computer hard drive and internet browser history, if the online information is important enough to justify the cost of following this avenue toward authentication. Finally, in an appropriate case, a party may decide to undertake the daunting challenge of seeking user information directly from a social networking site, though the practical constraints on doing so are often significant. In light of Griffin, it is not sufficient to walk into court with a printout of online social network content, and rely solely on the fact that the page contains information that appears to identify the “owner” of the page as the purported creator of the content. The Court of Appeals has determined that concerns about whether third parties may have posted information while posing as the purported creator of the content outweigh the probity of the kind of identifying personal information that was at issue in the Griffin case.
by Steve LewickyCourt of Appeals rules that Maryland must recognize valid out-of-state same-sex marriages
On May 18, 2012, the Maryland Court of Appeals issued a decision in the case of Port v. Cowan and held that valid out-of-state same-sex marriages will be recognized as valid in Maryland. The two parties to the case, Jessica Port and Virginia Anne Cowan, were married in California in 2008. They separated two years later, and Port ultimately filed a divorce complaint in Maryland. The trial court denied the request for a divorce, finding that their same-sex marriage was not valid, and was contrary to the public policy of Maryland. In its opinion, the Court of Appeals reasoned that, for purposes of the application of Maryland’s divorce laws, a foreign state judgment should be enforced and honored if it is not statutorily prohibited in Maryland, and is not repugnant to Maryland public policy. The court noted that the threshold for “repugnancy” in this context is very high and that Maryland statutory law does not expressly state that foreign same-sex marriages are void. The Court reviewed Maryland statutes and executive branch policies and interpreted them to demonstrate that recognition of valid foreign same-sex marriages is consistent with Maryland public policy. Therefore, the Court held that Maryland courts have the power to adjudicate divorce actions between same-sex parties that are validly married in another state.
by Steve LewickyNew law restricts IDOTs and increases commercial financing costs in Maryland
One means by which the budget and taxation bill that recently cleared the Maryland Legislature will increase state tax revenues is by substantially restricting the utility of indemnity deeds of trust (“IDOTs”) as a legally sanctioned means to avoid the current payment of mortgage recordation taxes on commercial real estate loans. Under current law, the owner of commercial property can establish a separate business entity to act as the borrower on a commercial real estate loan, and the owner can guaranty the loan and secure the guaranty with an IDOT. The separate entity that is established to borrow the funds can be a subsidiary of the property owner. When this structure is used to have separate entities serve as borrower and guarantor on a loan, no current recordation tax is owed on the IDOT. Once the new law goes into effect on July 1, 2012, it will be applicable to all IDOTs over one million dollars recorded on or after July 1, 2010, and will make IDOTs unattractive for most commercial deals. Although state tax revenues will thereby increase, so will the costs of commercial real estate financing in Maryland.