by Lisa WhiteMaryland is a great state to form a Non-Stock Corporation
Maryland’s corporation laws make it a favorable state in which to form a non-stock corporation. A non-stock corporation is a corporation that does not issue shares of stock, and is formed for not-for-profit purposes. The term “non-stock” is different than the designation of an entity as a “501(c)(3)” corporation. The 501(c)(3) designation is an IRS tax-exempt status for a corporation. Non-stock corporations can qualify for tax-exempt status with the IRS, if the entity complies with all necessary requirements. Non-stock corporations can be formed for a variety of purposes, including religious, educational, or charitable. This type of corporate entity often is used by homeowner’s associations, religious groups, trade associations, and other entities that want to run a not-for-profit organization, and take advantage of the benefits afforded to this type of entity.
The State of Maryland provides tax exemptions to non-stock corporations that meet certain requirements. For instance, the state may offer exemption certificates to qualifying non-stock corporations for purchasing personal property without paying sales and use tax. Some non-stock corporations may also be eligible for a state income tax exemption.
Officers of a non-stock corporation receive legal protections from liability, though these protections are not absolute. Limits on liability allow the officers of the company to focus on the mission of the corporation.
Forming a non-stock corporation requires compliance with Maryland’s general corporations law as well as the laws applicable to non-stock corporations. At Lewicky, O’Connor, Hunt, & Meiser, LLC, I assist my clients with forming Maryland non-stock corporations and helping them navigate the process. This includes choosing a name, filing Articles of Incorporation, selecting a Resident Agent, creating By-Laws, and holding organizational meetings. If you or someone you know are interested in forming a non-stock corporation, Lewicky, O’Connor, Hunt, & Meiser, LLC stands ready to assist you.
None of the information provided in this article constitutes legal advice. Every situation is different and should be thoroughly reviewed by and discussed with your legal advisors. Please do not rely on the contents of this article as a basis for making decisions regarding your situation. Please call us to schedule a consultation at (410) 489-1996.
by Lisa WhiteA Maryland Employer’s Guide to Sick Leave Policies
Employers in Maryland must work within the confines of both state and federal laws when implementing sick and safe leave policies for their employees. The Maryland Healthy Working Families Act imposes specific requirements that employers must comply with regarding the accrual and usage of leave. Employers need a sick leave policy that meets the statutory requirements and meets the needs of their operations.
An employer’s legal obligation to provide sick leave to its employees depends on the number of employees at the company. If there are 15 or more employees, the employer must provide paid sick and safe leave. If 14 or fewer employees, the employer must at least provide unpaid sick and safe leave.
Certain categories of workers may be excluded from the requirement of providing leave. An employer should consult with an attorney to assess whether leave, and what type of leave, must be provided to its workers or employees.
How is Sick and Safe Leave Earned?
Employers have two choices in determining how their covered employees earn sick and safe leave. An employer may opt to allow employees to earn leave incrementally over time based on hours worked at a rate of one hour of leave for every 30 hours worked. Alternatively, an employer may choose to front-load the full amount of annual leave, which is 40 hours, at the beginning of the year. Employers may choose to require that employees wait up to 106 calendar days after beginning employment before using accrued leave.
In Maryland, unused leave must be carried over from year to year. Employees may carry over up to 40 hours of unused leave. Employers are allowed to limit the amount of leave any one employee accrues to 64 hours at any time.
For What Purposes Can an Employee Take Sick and Safe Leave?
Employees may use sick and safe leave for the following reasons:
- The employee’s own illness, injury, or medical condition
- Preventive care, such as doctor’s appointments
- Caring for a family member with a medical condition
- Medical or physiological care
- Leave to address situations involving domestic violence, sexual assault, or stalking
This list is not exhaustive. Employers should ensure that their company policies reflect all permissible uses for sick and safe leave allowed by law.
Maryland employers must comply with recordkeeping requirements and consider other federal laws that may apply to their business. Whether you are a business in need of establishing an appropriate sick and safe leave policy for your business or an employee with concerns about your company’s implementation of its sick and safe leave policy, Lewicky, O’Connor, Hunt & Meiser stands ready to assist you.
None of the information provided in this article constitutes legal advice. Every situation is different and should be thoroughly reviewed by and discussed with your legal advisors. Please do not rely on the contents of this article as a basis for making decisions regarding your situation. Please call us to schedule a consultation at (410) 489-1996.
by Lisa WhiteAre Non-Compete Agreements Enforceable in Maryland?
People searching for a new job often discover that an offer of employment comes with a request – or requirement – to sign a non-compete agreement with the new employer. Sometimes these agreements are signed without the job seeker giving full consideration to the implications of signing.
To be enforceable in Maryland, a non-compete agreement must be reasonable in scope, geography, and duration. The agreement must protect a legitimate business interest of the company, and cannot cause undue hardship on the employee’s right to earn a living. Maryland law prohibits non-compete agreements for employees earning less than 150% of the state minimum wage, or when the non-compete agreement would prevent the employee from entering into employment with a new employer or becoming self-employed in the same or similar business or trade as a matter of public policy. Currently, 150% of the state minimum wage is $22.50 per hour ($46,800.00 per year).
For certain health care providers (those providing direct patient care and earning less than $350,000.00 annually), a non-compete agreement may have a duration of no longer than one year from the last day of employment. Such non-compete agreements may not contain a geographical restriction of more than ten miles from the primary place of employment.
Maryland courts evaluate whether a non-compete agreement is reasonable in scope, geography, and duration, and also determine whether the agreement protects a legitimate business interest of the company, imposes undue hardship, and whether the agreement harms the public. A reasonable non-compete agreement must be narrowly tailored to protect the employer’s business interest. It cannot pose an undue hardship on the former employee. Geographically, the limitation must not be any wider than necessary for the protection of the employer’s business.
How Should Your Business Tailor Its Non-Compete in Maryland?
First, an employer must determine the scope of its business and what it seeks to protect with the non-compete agreement. Next, an employer must determine its geographical scope within which it conducts business. Contacting a business attorney can assist an employer with drafting an enforceable agreement that can be tailored to specific employees to meet the legal requirements for enforceability.
What Employees Should Do Before Signing or Violating a Non-Compete?
When an employee is presented with any type of non-compete, whether as part of an initial hiring or during the course of employment, the employee should not assume it is enforceable – but it might be. The employee should read the entire document and consult with an attorney to learn about the risks to the employee should the employee choose to sign the document. These agreements can contain penalties for violation of the non-compete, including an injunction and payment of attorney’s fees to the employer should a breach of the agreement occur.
Lewicky, O’Connor, Hunt & Meiser stands ready to review proposed non-compete agreements, whether you are a business or an employee seeking advice. None of the information provided in this article constitutes legal advice. Every situation is different and should be thoroughly reviewed by and discussed with your legal advisors. Please do not rely on the contents of this article as a basis for making decisions regarding your particular situation. Please call us to schedule a consultation at (410) 489-1996.
by Lisa WhiteWhat should you do if you are served with a civil lawsuit?
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Contact a lawyer.
Nobody likes receiving delivery of court documents and finding out they are a defendant in a civil lawsuit – but if you are named as a defendant, be sure to consult with an attorney as soon as possible who is licensed to practice in your state or jurisdiction. Don’t be afraid to ask your lawyer questions during your initial consultation. The more information you provide during this initial meeting, the better your attorney will be able to assist you.
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Be mindful of deadlines.
A response to the lawsuit will need to be filed with the court within a fixed period of time, calculated from the date on which you received written notice of the lawsuit. Read the delivered papers carefully, and be sure to ask your attorney about your responsive filing deadline.
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Know your options and your rights.
After receiving notice that you have been named in a lawsuit, you may be tempted to directly contact the person or company that filed, without first consulting an attorney. Giving a written or verbal response to the plaintiff or the plaintiff’s attorney, without first receiving advice from your own attorney, could be very detrimental to your defense. It is essential to have the benefit of professional legal advice and guidance before submitting any response to the person or company that has brought suit.
If you have been served with a lawsuit brought in courts located in Maryland or the District of Columbia, Lewicky, O’Connor, Hunt & Meiser stands ready to provide legal support to you. Call our office at (410) 489-1996 to schedule a consultation with an attorney who can provide you with options and guide you through the litigation process.
None of the information provided in this article constitutes legal advice. Every situation is different and should be thoroughly reviewed by and discussed with your legal advisors. Please do not rely on the contents of this article as the basis for making decisions regarding your particular situation.
by Lisa WhiteIf I Successfully Bring a Lawsuit, Will I be Reimbursed for My Attorneys’ Fees?
One of the most common questions I hear during initial consultations with clients is whether an individual or business can recover attorneys’ fees if they prevail in a lawsuit. The answer is…it depends. Maryland generally follows the “American Rule” that each party in a lawsuit is responsible for their own attorneys’ fees, unless there is a statute allowing for fee-shifting, the parties to the lawsuit have previously entered into a contract allowing for the recovery of attorneys’ fees, or a lawsuit is brought in bad faith.
Even in these situations, one must first prevail in the lawsuit to be awarded reimbursement of attorneys’ fees. Even if a party wins the lawsuit, in the sense of having the court find that the other side is liable or contractually obligated to the other, the court still has discretion regarding the amount of attorneys’ fees to award to the prevailing party. The court must determine that the amount of attorneys’ fees being sought is reasonable under the circumstances.
For these reasons, even if there is a statutory or contractual basis to seek reimbursement of attorneys’ fees in a lawsuit, that does not guarantee that a prevailing litigant will be reimbursed 100% of their attorneys’ fees. If there is a statutory or contractual basis to seek reimbursement of fees, it is still the judge presiding over the case that will make the final determination regarding reimbursement of attorney’s fees.
Statutory Basis for Recovering Attorney’s Fees
Maryland law allows for recovery of attorney’s fees in cases alleging violations of the Maryland Consumer Protection Act and Maryland Wage Payment and Collection Act. Attorney’s fees can also be sought in cases involving mechanic’s liens, certain landlord-tenant actions, and certain divorce and family law actions.
Contractual Basis for Recovering Attorney’s Fees
A written contract between the parties may state, within its terms, that a party to the contract can be awarded attorneys’ fees from the other party to the contract in the event of a breach of the parties’ agreement. If this type of provision is in a contract, a litigant may assert a claim for attorneys’ fees as part of the lawsuit. The party seeking reimbursement would still need to prevail on the merits of the case to recover attorneys’ fees.
Maryland Rule 1-341
Maryland Rule 1-341 allows a judge to award attorneys’ fees to a defendant if a civil lawsuit is brought in bad faith. The court assesses whether the conduct of any litigant is “without substantial justification,” in which case the court may, in its discretion, award attorney’s fees to the non-offending party.
If you are considering whether to engage in litigation, it is important to discuss your situation with an attorney to assess whether you have a good faith basis for claiming reimbursement of attorneys’ fees. None of the information provided in this article constitutes legal advice. Every situation is different and should be thoroughly reviewed by and discussed with your legal advisors. The law regarding reimbursement of attorneys’ fees may be different than what is summarized here in states and jurisdictions other than Maryland. Please do not rely on the contents of this article as a basis for making decisions regarding your particular situation.
by Lisa WhiteAppealing a Decision of the National Labor Relations Board
In 1935, Congress enacted the National Labor Relations Act (the “Act”) and created the National Labor Relations Board (“NLRB”). The NLRB was formed to adjudicate disputes between employers and employees, while protecting the rights of employees to choose for themselves whether to engage in protected activities such as collective bargaining. The NLRB’s mission is to provide a pathway to dispute resolution without causing business interruptions and disruptions in the flow of commerce that can occur from employee strikes and other protests. The NLRB handles disputes related to union representation and unfair labor practices. Employment lawyers can assist clients in preparing and filing a charge with the NLRB for either of these avenues. Unfair labor practices, as defined in the Act, include an employer interfering with an employee’s right to self-organize, form, or join a labor organization, and collective bargaining. Among the statute’s list of defined activities, unfair labor practices also includes discrimination or termination of an employee for filing charges or providing testimony under the Act.
If an employee receives an unfavorable decision from the NLRB, he or she has the right to appeal the decision. There are different paths for appeal, depending on the stage in the process and the type of claim. If the NLRB refuses to pursue a complaint on behalf of a party, an appeal can be submitted to the General Counsel for review. If an administrative law judge issues an adverse decision, that decision can be appealed to a U.S. Court of Appeals, and then ultimately to the U.S. Supreme Court.
Appeals have specific deadlines, and can require submission of briefs and sometimes oral argument, which are best discussed during a consultation with an employment lawyer. None of the information provided in this article constitutes legal advice. Every situation is different and should be thoroughly reviewed by and discussed with your legal advisors. Please do not rely on the contents of this article as a basis for making decisions regarding your particular situation.
by Lisa WhiteProtecting Your Older or Susceptible Family Members from Financial Exploitation
According to the National Council on Aging, scammers are targeting older adults at increased rates, in an effort to gain trust and steal money. Scams include fake profiles on online dating sites, impersonation of grandchildren, and technical support scams.
Maryland law allows a private right of action to protect older or susceptible adults from financial exploitation. If you are an authorized representative of an older or susceptible adult, you may also bring a lawsuit on their behalf to recover any property, income, resources, or trust funds that were taken or used illegally. This law is known as the SAFE Act. Older adults are defined as over the age of 68, while susceptible adults are those persons who cannot operate one or more of their daily living activities, or have diminished executive functioning due to a variety of factors as defined by the statute.
If you are a victim of financial exploitation or an authorized representative of a victim and have questions, Lewicky, O’Connor, Hunt & Meiser stands ready to provide legal support to you. None of the information provided in this article constitutes legal advice. Every situation is different and should be thoroughly reviewed by and discussed with your legal advisors. Please do not rely on the contents of this article as a basis for making decisions regarding your particular situation. Please call us to schedule a consultation at (410) 489-1996.
by Lisa WhiteYou Established a Guardianship. Now what?
In Maryland, you can be a court-appointed guardian of the person and/or the property of a minor child or a disabled person. Once the court process for seeking a guardianship is complete and a guardianship order is issued, the newly-appointed guardian has rights and responsibilities under the law. All guardians must file an annual or biannual report with the court.
Guardianship of a Person
A court, through issuance of an order, may grant the guardian of a disabled person the same rights, powers, and duties that a parent would have over a minor child. For a disabled person, a guardianship order can allow the guardian to establish the disabled person’s home. Guardians can also be given the authority to make medical decisions, including determining a medical course of treatment. While guardians have powers, they also have responsibilities. Court-appointed guardians have a duty to provide for the disabled person, including ensuring provision of medical care, comfort, and clothing, and fostering friendships. Guardians must keep records and periodically report to the supervising court.
Guardianship of Property
A guardian of the property of a minor or of a disabled person has the powers of a fiduciary. A fiduciary is a trustee who may make decisions on behalf of the minor child or disabled person, including decisions regarding investments, mortgages, leases, or borrowing money, for the purpose of protecting the minor or disabled person’s property. A fiduciary may retain the assets of the minor or disabled person, and may receive assets from any sources on the person’s behalf. Guardians of the property may also make charitable contributions, protect the minor’s or disabled person’s property from damage, loss, and liability, and may pay taxes. Guardians may also employ attorneys, as needed.
None of the information provided in this article constitutes legal advice. Every situation is different and should be thoroughly reviewed by and discussed with your legal advisors. Please do not rely on the contents of this article as a basis for making decisions regarding your particular situation. If you are a court-appointed guardian and have questions, or wish to petition the court to establish a guardianship, Lewicky, O’Connor, Hunt & Meiser stands ready to provide legal support to you. Please call us to schedule a consultation at (410) 489-1996.
by Lisa WhiteThe Appellate Court of Maryland Clarifies State Corporate Law in Mekhaya v. Eastland Food Corporation
The Appellate Court of Maryland, in its recent decision in Mekhaya v. Eastland Food Corporation, brought Maryland law in line with the corporate laws of other states, expanding shareholders’ rights. This case changed Maryland business law in several respects. Corporate shareholders now may assert some types of claims directly on their own behalf, even without a written agreement. The court in this decision also limited the “business judgment rule,” and addressed “de facto” dividends.
Clarification of Shareholders’ Rights
The Mekhaya decision is significant because it broadens shareholders’ rights to assert claims against a corporation. Prior to this decision, when addressing a dispute among shareholders, Maryland courts looked to the shareholders’ written agreement or their employment agreements to determine what rights are provided to the shareholder under the agreement. A shareholder was then able to assert a “shareholder derivative claim” on behalf of the corporation. If successful, such a suit would result in the corporation recovering monetary damages if the suit is successful (with the shareholder indirectly receiving benefit, in the role as a shareholder). In the Mekhaya case, however, the shareholders did not have a written shareholder agreement, so the court instead considered what it believed to be the reasonable expectations of the shareholders to determine if the particular shareholder asserting the claim had direct standing to sue the corporation, and to recover damages personally. As a result of this decision, shareholders in Maryland corporations can bring direct claims against a corporation in some situations, and potentially recover damages in their personal capacity. In the Mekhaya case, the shareholder was permitted to assert direct claims of shareholder oppression, breach of fiduciary duty, and unjust enrichment.
Limiting the Business Judgment Rule
The court’s opinion also held the business judgment rule inapplicable to direct claims of shareholders, if the shareholder can show a breach of fiduciary duty owed to the shareholder, and that the shareholder was personally harmed, even without showing an injury to the corporation. The court remanded the case for a determination as to whether the shareholder’s expectations were objectively reasonable.
“De Facto” Dividends
The court also acknowledged ambiguity in the states Corporations and Associations Code, and concluded that some distributions to shareholders may be considered “de facto” dividends, even if the payments are disguised as a large bonus, and not labeled as dividends. The Mekhaya court concluded that a payment to a shareholder might constitute a dividend, even when included as part of a shareholder’s salary as a corporate employee or director.
Lewicky, O’Connor, Hunt & Meiser can answer questions and provide legal guidance to businesses about their legal rights and obligations. We help companies prepare shareholder agreements to avoid future issues of legal interpretation. Please contact us at [email protected] or (410) 489-1996.
by Lisa WhiteA New Paid Family and Medical Leave Insurance Program Takes Effect in Maryland
A new law taking effect in Maryland this year requires many employers in the state to offer paid family and medical leave benefits to their employees. The Maryland General Assembly passed the Time to Care Act (SB 275) on April 9, 2022, but the law takes effect in 2023. This makes Maryland the tenth state in the nation to establish a paid family and medical leave insurance program. This law applies to employers with at least 15 employees, where at least one employee works in Maryland. It does not apply to businesses in which the owner is the sole employee, such as a single-member limited liability company, sole proprietorship, or a C or S corporation. Self-employed individuals may opt into the program. Employers and employees will begin making contributions to the program starting October 1, 2023, with payouts to employees beginning January 1, 2025. The Maryland Department of Labor (“MDOL”) will be responsible for administering and enforcing the program and will determine the rates of contributions by employers and employees by June 1, 2023.
The Maryland Time to Care Act provides up to twelve weeks of wage-replacement benefits from $50 to $1,000 per week to employees who have worked 680 hours in the last twelve months prior to the time the employee is requesting leave. The leave can be continuous or intermittent. The same employee may have up to an additional twelve weeks if the employee has a newborn and a serious health condition preventing the employee from performing the functions of the employee’s job.
Beginning in 2025, employees will be able to submit a claim for benefits and qualify for leave for any of the following reasons:
- Care for a newborn child, newly adopted child, foster care placement, or kinship care with the employee during the first year after the birth, adoption, or placement
- Care for a family member with a serious health condition
- Care for the employee’s own serious health condition
- Care for a service member with a serious health condition resulting from military service who is the employee’s next of kin
- If the employee has to attend to a “qualifying exigency” due to a family member’s military deployment
For employers, the Maryland Time to Care Act means additional payroll withholding and payout that businesses will want to factor into their future planning. Additional compliance issues may arise as well, as the law requires employers to provide proper notice to employees about the benefits, and specific payments into the program and eventually to employees requesting leave. Under the new law, the MDOL may investigate alleged violations of the law. Failure of employers to contribute to the program or to pay their employees may result in fines, back wages to the employee, court-assessed punitive damages, and payment of reasonable attorney’s fees.
Notice will be required by both employers and employees. Employees are required to notify their employer with written notice of their intention to take leave at least 30 days prior to taking the leave if the leave is foreseeable. If the leave is not foreseeable, then an employee needs to give their employer notice as soon as practicable and comply with the employer’s procedural requirements for requesting and reporting the leave. Employers are required to provide notice of the law’s rights to employees, and an employer must provide notice of eligibility to an employee within five business days of the employee’s request for leave.
As further guidance is released, Lewicky, O’Connor, Hunt & Meiser will be able to answer questions and provide legal guidance to businesses about their legal rights and obligations under the Maryland Time to Care Act. We can also assist those looking to form a new business to ensure legal compliance. Please contact us at [email protected] or (410) 489-1996.
