In this issue:
- The D.C. Accrued Sick and Safe Leave Act
- New Rules Proposed in the H-2B Temporary Labor Certification Program
- NOTE: Changes Made to the Maryland Guide to Wage Payment and Employment Standards of the Department of Labor, Licensing and Regulation
- The Interaction Between the Rules of Professional Conduct and Malpractice Actions in the District of Columbia, Maryland, and Virginia
The D.C. Accrued Sick and Safe Leave Act
By Thomas L. McCally, Tina M. Maiolo and Sarah E. Godfrey
The District of Columbia’s “Accrued Sick and Safe Leave Act” will take effect on November 18, 2008. Washington D.C. is only the second city in the nation to enact a law that requires employers to provide paid sick days for their employees. It is the first city to require employers to provide “safe” days for victims of sexual assault, stalking, or domestic violence.
The D.C. Accrued Sick and Safe Leave Act applies to all private and government employers. The number of sick or safe days each organization must provide depends on the size of the employer:
- 0 – 24 employees: 1 hour per every 87 hours worked
- 25 – 99 employees: 1 hour per every 43 hours worked
- 100 + employees: 1 hour per every 37 hours worked
Employers in the smallest category must provide at least 3 sick and safe days per year. Employers in the middle category must provide at least 5 sick and safe days per year. The largest employers must provide at least 7 sick and safe days per year. Employers are permitted to allow more, but no fewer than the minimum number of annual sick and safe days, as dictated by the schedule.
An employee may “roll over” any unused sick and safe days into the following year. Employers, however, are not they required to compensate employees for their sick or safe leave balance upon termination of employment.
An employee begins to accrue sick and safe days on the first day of employment, though the employee cannot access her time until she has completed 90 days of service. The law does not apply to all employees; independent contractors, full time students, certain heath care workers, and waiters and bartenders who make a combination of wages and tips are excluded from the Act.
Employees may use their accrued time for their own medical care, or to assist with the medical care of a family member. Medical care includes everything from emergency visits to preventative treatment. The term “family member” is also defined broadly by the Act. It includes children, grandchildren, foster children, spouses, siblings, siblings’ spouses, children’s spouses, parents, grandparents, and domestic partners. A domestic partner is defined as anyone with whom the employee maintains a committed relationship and with whom the employee has lived with for the past year.
An employee may also use accrued time if the employee or employee’s family member is the victim of stalking, domestic violence, or sexual abuse. The employee’s absence must be “directly related” to seeking social services, legal services, or medical attention as a result of the violent or abusive conduct. The employee’s time can be used to obtain help from a victim services organization, prepare for legal action against the offender, or to relocate. The employee may also use accrued safe time take “any other action” to enhance the employee’s own safety and economic health, or the safety and economic health of her family members.
To the extent a leave event is foreseeable, an employee is must provide her employer with a written request at least 10 days in advance of the proposed leave date. If the need for paid leave is unforeseeable, the employee must notify her employer prior to the start of the next work shift. If an employee has taken three or more consecutive days of paid leave, the employer can request certification such as a physician’s note or a police report.
District of Columbia Mayor’s office is charged with preparing a notice that summarizes the terms and complaint procedures provided by the Sick and Safe Leave Act. Employers are required to post and maintain this notice in a conspicuous place.
Penalties for Noncompliance
Any employer who violates the Sick and Safe Leave Act is subject to a civil penalty of $500 for the first offense, $750 for the second offense, and $1000 for each subsequent offense. An employer who violates only the posting requirement is subject to a $100 fine for each day the employer fails to post the notice. The Act also contains provisions that make it unlawful for employers to discriminate or retaliate against employees who use their paid leave, or employees who file a complaint against the employer related to the Act.
How to Prepare your Company
While the law does not take effect until November 2008, D.C. employers should begin to review their current leave policies to asses whether they are in compliance with the Act’s requirements. Employers should ensure they provide at least the minimum number of sick or safe days per year, and that time is accrued according the Act’s schedule.
If you have any questions about how to bring your company’s policies into compliance with the D.C. Accrued Sick and Safe Leave Act, please contact Thomas McCally or Tina Maiolo.
New Rules Proposed in the H-2B Temporary Labor Certification Program
By Tina M. Maiolo and Tracy D. Stuger
On May 22, 2008, the Department of Labor announced its efforts to revise the application process under the H-2B temporary labor certification program.
The H-2B temporary labor certification program permits employers to hire foreign workers to come to the United States and perform temporary nonagricultural work, which may be (1) one-time, (2) seasonal, (3) peak load or (4) intermittent. The applicant must be a U.S. employer with a job opportunity located within the United States, and the job opportunity must be temporary. A job opportunity is considered temporary under the H-2B classification if the employer’s need for the duties to be performed is temporary, whether or not the underlying job is permanent or temporary.
In addition to the criteria mentioned above, an applicant is required to adequately test the U.S. labor market to demonstrate that there is no qualified and willing U.S. worker available for the job. In order to ensure an adequate test of the labor market, the employer must offer, and subsequently pay, the foreign worker at a wage equal to or higher than the prevailing wage for the occupation at the skill level in the area of employment.
Under the current application process for the H-2B program, employers initially apply with the appropriate state workforce agencies (SWA) that, among other tasks, fills in the applicable prevailing wage for the job opportunity. This process has been criticized as lengthy and duplicative. In addition, because the process is initially coordinated by the states, critics have stated that there is no consistency in the application process. Recognizing a need to streamline the application process, the Department has proposed new rules that it states will modernize the application process.
Under the newly proposed rules, employers would submit their applications directly to the Department of Labor’s Employment Training Administration. This differs from the current process of submitting applications first with the applicant’s SWA. In addition, the employers will be responsible for obtaining information about the prevailing wage for the job opportunity, another task currently performed by SWAs. The prevailing wages currently used by SWAs in H-2B applications have been for several years available to the public through the Department of Labor. As part of the proposed new process, employers will now be responsible for obtaining information about the prevailing wage directly from the Office of Foreign Labor Certification within the Department of Labor. According to Secretary of Labor, Elaine Chao, these proposed improvements will give the department additional tools to protect and remove duplicative bureaucracy.
The proposal also would change the application process so that employers would be required to attest that they have complied with the program’s requirements or they would be subject to fines and other penalties. Although attestations are required of current applicants, several more attestations will be added to the proposed application form than the current form. Among the new attestations that the applicant would have to declare is that the employer is not displacing any similarly employed permanent U.S. worker in the area of intended employment within the period beginning 120 days before the date of need and throughout the entire employment of the worker. Additionally, an employer must attest that it has not and will not shift the cost of preparing or filing the H-2B application to the temporary worker including the costs of domestic recruitment or attorney’s fees. Consistent with the Fair Labor Standards Act (FLSA) and current procedures, the Department of Labor will continue to permit employers to make reasonable housing and transportation deductions from a worker’s pay for the reasonable cost of furnishing housing and transportation.
In regard to recruitment efforts, employers would be required to conduct recruitment efforts for U.S. workers prior to filing an application. This would include the placement of a job order with the SWA serving the areas of the intended employment, the placement of three advertisements, one of which must be on a Sunday, in the newspaper most appropriate for the occupation and most likely to reach the U.S. workers who would apply and qualify for the job opportunity, and the preparation of a recruitment report outlining the results of the recruitment. These steps are similar to those currently in place. The Department has stated that, by having employers engage in these steps under their own direction rather than the SWA’s, the application processing is expected to improve and be consistent.
Under the federal statute, 8 U.S.C. 1184 (g)(1)(B), there is an annual limit of 66,000 foreign workers who may receive H-2B status. However, the H-2B foreign labor certification program continues to increase in popularity among employers. According to the Department of Labor, the number of H-2B certification applications has increased 129 percent from 2000. As a result of the increase, the Department has noted the growing challenge to efficiently and timely process applications.
If you have any questions about the application process under the H-2B temporary labor certification program please contact Tina Maiolo.
NOTE: Changes Made to the Maryland Guide to Wage Payment and Employment Standards of the Department of Labor, Licensing and Regulation.
By Thomas L. McCally and Tracy D. Stuger
At the close of this year’s legislative session, the Maryland General Assembly passed emergency legislation, and Governor Martin O’Malley signed into law, a bill that amends the Maryland Wage Payment and Collection Law, Md. Code Labor and Employment §§3-504, 3-505 to provide that an employer’s written policy will determine whether an employee must be paid unused accrued leave upon his or her termination.
This law addresses the concern shared by many employers about a change made to the Maryland Guide to Wage Payment and Employment Standards (“Maryland Guide”) of the Department of Labor, Licensing and Regulation (“DLLR”). The change in the Maryland Guide stated that, regardless of the information an employer includes in its handbook or at the time of the employee’s hiring, an employer is required to pay out all of an employee’s accrued vacation time at the time of the employee’s termination.
The newly signed law is directly contrary to the change that was made to the Maryland Guide. In fact, the DLLR has now updated its website regarding the Maryland Guide to state that whether unused vacation time is payable to an employee at termination “depends on the employer’s written policy, and whether this policy was communicated to the employee at the time of hiring.”
Many suggest that the decision in Catapult Technology Ltd. v. Wolfe, No. 997 (August 20, 2007) had much to do with the initial change in the Maryland Guide. In Catapult, the employer maintained a policy that required its employees to provide two weeks of resignation. Accordingly, Catapult’s employee handbook noted that failure of an employee to provide the required notice resulted in the forfeiture of accrued vacation leave, a result that was determined to be against public policy. Although the employer’s policy regarding leave was expressly and clearlycontained within its employee handbook, the Court of Special Appeals ruled that accrued unused paid time off is a wage that must be paid to an employee at his termination.
The recently amended law runs counter to the Catapult ruling and specifically provides that an employer is not required to pay accrued leave to a terminated employee in the following circumstances:
- The employer has a written policy that limits the compensation of accrued leave to employees;
- The employer notified the employee of the employer’s leave benefits in accordance with §3-504(a)(1);
- and the employee is not entitled to payment for accrued leave at termination under the terms of the employer’s written policy.
In light of the recent amendments to the Code, it is now more important than ever for employers to examine their written policies and guidelines regarding vacation pay and accrued leave. Please contact Thomas McCally if you are interested in having us review and update your existing policies for compliance with these new requirements.
The Interaction Between the Rules of Professional Conduct and Malpractice Actions in the District of Columbia, Maryland, and Virginia
The Interaction Between the Rules of Professional Conduct and Malpractice Actions in the District of Columbia, Maryland, and Virginia
The sanctioning of an attorney by a disciplinary authority does not mean that the attorney has committed malpractice. A finding of liability in a malpractice case does not mean that there has been a violation of the Rules of Professional Conduct. But what is the interplay between the Rules of Professional Conduct and malpractice actions? Section 20 of the Preamble of the ABA Model Rules of Professional Conduct, as amended through August 2007, states clearly that a “[v]iolation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached.”2 However, the final sentence of Section 20 does state, “[n]evertheless, since the Rules do establish standards of conduct by lawyers, a lawyer’s violation of a Rule may be evidence of breach of the applicable standard of conduct.”
The language makes it very clear that a violation of a Rule of Professional Conduct is not presumptive proof that malpractice has occurred. However, the plaintiff’s bar has attempted to use violations, perceived or actual, of the Rules of Professional Conduct, as proof of malpractice. A review of case law in the tri-state area shows that “many courts have determined that pertinent ethical standards are admissible as evidence relevant to the standard of care in legal malpractice actions along with other facts and circumstances.” 3 This article provides a review of the case law in the District of Columbia, Maryland, and Virginia.
DISTRICT OF COLUMBIA
The District of Columbia did not adopt Section 20 when it adopted the Rules of Professional Conduct. Instead, the District included the following paragraph in its Scope section:
 Nothing in these Rules, the Comments associated with them, or this Scope section is intended to enlarge or restrict existing law regarding the liability of lawyers to others or the requirements that the testimony of expert witnesses or other modes of proof must be employed in determining the scope of a lawyer’s duty to others. Moreover, nothing in the Rules or associated Comments or this Scope section is intended to confer rights on an adversary of a lawyer to enforce the Rules in a proceeding other than a disciplinary proceeding. Some judicial decisions have considered the standard of conduct established in these Rules in determining the standard of care applicable in a proceeding other than a disciplinary proceeding. A tribunal presented with claims that the conduct of a lawyer appearing before that tribunal requires, for example, disqualification of the lawyer and/or the lawyer’s firm may take such action as seems appropriate in the circumstances, which may or may not involve disqualification. 4
Section 4 acknowledges that “[s]ome judicial decisions have considered the standard of conduct established in these Rules in determining the standard of care applicable in a proceeding other than a disciplinary proceeding.” Thus, the District of Columbia Courts view violations of the Rules of Professional conduct as evidence relevant to the standard of care for attorneys.5
DISTRICT OF COLUMBIA COURT OF APPEALS
In Waldman v. Levine, 544 A.2d 683 (D.C. 1988), a legal malpractice case, the District of Columbia Court of Appeals held that a legal expert’s testimony that he considered portions of the Code of Professional Responsibility was admissible.
In the underlying medical malpractice matter, the attorneys failed to consult the proper expert witnesses. During the legal malpractice trial, the plaintiff’s standard of care expert testified that failure to consult the required medical expert caused the attorneys’ conduct to fall below the minimum standard of care for attorneys in medical malpractice cases. The expert testified that he considered certain provisions of the Code of Professional Responsibility for lawyers when deciding the whether the standard of care was met. The Court of Appeals stated, “[a] number of courts have held that although the Code does not attempt to delineate the boundaries of civil liability for the professional conduct of attorneys, its provisions constitute some evidence of the standards required of lawyers.” 6
In Griva v. Davison, 637 A.2d 830 (D.C. 1994), one partner, Griva, sued the other partners in a Maryland limited partnership and the law firm that represented the partners individually and represented the partnership, claiming breach of fiduciary duties. The Court of Appeals held that material issues of fact precluding summary judgment “existed as to whether [the] attorneys had breached Code of Professional Responsibility standards regarding dual representation,” 7 and “material issues of fact existed as to whether firm had violated conflict of interest principles under the Rules of Professional Conduct, by apparently discussing dissolution of [the] partnership with one partner.” 8, 9
The court remanded the case stating “… in the event such violations [of the Code of Professional Responsibility or Rules of Professional Conduct] are proved, there is a precedent for their serving as a basis for civil liability.” Griva quotes the “Scope” section of the Rules of Professional Conduct, beginning with “[v]iolation of a Rule does not necessarily give rise to a cause of action ….” But goes on to state “[d]espite these cautious statements in the ‘Scope’ section of the Rules and the absence of similar language in the Code, case law confirms that a violation of the Code of Professional Responsibility or of the Rules of Professional Conduct can constitute a breach of the attorney’s common law fiduciary duty to the client.” 11
On January 1, 1991, the D.C. Rules of Professional Conduct were “adopted and promulgated as the standards governing the practice of law in the District of Columbia.” 12 Both Waldman and Griva looked to the D.C. Code of Professional Responsibility for direction. However, as stated above, in 1991 the D.C. Court of Appeals adopted the Rules of Professional Conduct. Scope Section 4 unequivocally states “[s]ome judicial decisions have considered the standard of conduct established in these Rules in determining the standard of care applicable in a proceeding other than a disciplinary proceeding.” While the Court of Appeals has not spoken directly on the matter, the D.C. Courts now view violations of the Rules of Professional conduct as evidence relevant to the standard of care for attorneys. 13
DISTRICT OF COLUMBIA FEDERAL COURTS
In Williams v. Mordkofsky, 901 F.2d 158, 163 (D.C. Cir. 1990), 14 the United States District Court for the D.C. Circuit, citing Waldman v. Levine, stated “[w]hile the Model Code does not provide for a direct private malpractice action, violations of the Code certainly constitute evidence in an action at common law.”
The Williamses had a long-standing relationship with their attorney Mordkofsky. The Williamses, through one of their corporations, Intermountain, applied for a license to build a television station. In the application process, Intermountain included a statement that it would devote its full-time management to the station. While that application was pending, the Williamses, through another of their corporations, UTI, applied for an application to construct a cellular radio facility. At the suggestion of Mordkofsky, the Williamses included a similar statement of commitment, despite the fact that those two statements conflicted if they were granted both licenses. As a result of the conflicting statements, the Williamses did not obtain the television license they applied for.
The court stated, “[w]e observe in passing that, if Mordkofsky acted as alleged by appellants, his conduct raises serious concern, and likely violated provisions of the Model Code of Professional Responsibility. While the Model Code does not provide for a direct private malpractice action, violations of the Code certainly constitute evidence in an action at common law.” 15
In Hendry v. Pelland, 73 F.3d 397 (D.C. Cir. 1996), the Hendry family – a mother, son, daughter, and the daughter’s children – owned land as tenants in common. All members of the family agreed to sell the land to a developer contingent upon approval from the county to build a retirement home. When the county did not approve the retirement home plans, the mother agreed to amend the sales contract’s contingency to “approval of a residential complex.” The son objected to this amendment and the mother agreed to the amendment when the son was on vacation. The son then consulted Pelland, an attorney in Washington, D.C. about rescinding the contract, arguing that the mental capacity of his mother was in question. Relying on the agreement’s “good faith” clause, Pelland advised his clients not to oppose the residential development. 16 When the county approved the residential plans, all the owners, including the mother, refused to sell to the developer. The developer sued for breach of contract and unjust enrichment for failure to sell the property. On the eve of trial, at the suggestion of the judge and Pelland’s advice, the family paid the developer $1.5M. While Pelland originally represented only the son and his wife, he represented all the owners of the property in defending the lawsuit. Then, the son and his wife and the mother sued Pelland for professional negligence and breach of fiduciary duty.
The Hendry family alleged that Pelland violated DR 5-105(b)17 , Refusing to Accept or Continue Employment if the Interest of Another Client May Impair the Independent Professional Judgment of the Lawyer. The District Court, citing Griva, stated “… we agree with the Hendrys that their evidence that Pelland violated one of the rules of the District of Columbia Code of Professional Responsibility was sufficient to support their claim that he violated his common law fiduciary duty. While not holding that the ethical rules are co-extensive with the attorney’s fiduciary duties, the District of Columbia Court of Appeals in Griva … clearly rules that a violation of the Code of Professional Responsibility can constitute a breach of the attorney’s common law fiduciary duty to the client.” 18
The Federal Court and the State Court agree that violations of the Rules of Professional Conduct are evidence of a breach of a standard of care.
The Maryland Rules of Professional Conduct19 closely follow the ABA Model Rules, including the sentence “[n]evertheless, in some circumstances, a lawyer’s violation of a Rule may be evidence of breach of the applicable standard of conduct.” The only major difference between the two is the addition of the last sentence of the paragraph
Nothing in this Preamble and Scope is intended to detract from the holdings of the Court of Appeals in Post v. Bregman,349 Md. 142 (1998) and Son v. Margolius, Mallios, Davis, Rider & Tomar, 349 Md. 441 (1998).20
Two cases dealing with the topic in Maryland are Ahan v. Grammas, 2004 WL 2724111 (2004) and Hooper v. Gill, 557 A.2d 1349 (Md. App. 1988). In the Hooper case, the Court of Special Appeals of Maryland declined to decide which school of thought Maryland would follow: a violation of the Rules provides no cause of action, a violation of the Rules is rebuttable evidence of malpractice, or a violation of the Rules is evidence of malpractice. A short sixteen years later in Ahan v. Grammas, an unpublished opinion, a Maryland circuit court, citing District of Columbia case law, decided that a violation of the Rules is evidence of a breach of common law duties.
In Ahan v. Grammas, 2004 WL 2724111, plaintiff formed two businesses with Modanlo, and disagreements occurred between plaintiff and Modanlo. The law firm that Grammas worked for, GCD, was the general counsel for the businesses, although the businesses continued working with several other firms. Grammas was nominated and elected as corporate secretary for both businesses. Ahan brought a malpractice lawsuit against Grammas and GCD, asserting that as corporate counsel, Grammas “has a duty not to take instruction from Modanlo, one 50% shareholder, even though that shareholder was at the top of the corporate hierarchy, if those instructions were not in the interest of Ahan.”21
The Maryland court, citing Avianca, Inc. v. Corriea, 22 states, “while not strictly providing a basis for a civil action, [the Rules] nonetheless may be considered to define the minimum level of professional conduct required of an attorney, such that a violation of one of the [Rules] is conclusive evidence of a breach of the attorney’s common law fiduciary [duty].”23
The court also cites Waldman v. Levine, supra, where the District of Columbia Court of Appeals affirmed a “trial court judge’s decision to allow an expert witness to use the D.C. Rules of Professional Conduct as a guide to the relevant standard of care in a malpractice action.” Id.
Maryland, following D.C.’s lead, accepts violations of the Rules of Professional Conduct as evidence of a breach of a standard of care.
Virginia has adopted Section 20 of the ABA Model Rules Preamble in this form
Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.
The Virginia Preamble is definitive in its statement that the Rules do not enlarge the legal duties of attorneys. The Virginia Courts have not yet addressed this issue.
Despite attempts to use violations of the Rules of Professional Conduct as presumptive proof of violations of the standards of care in malpractice cases, the courts in the area have resisted. 24 The Courts of the District of Columbia Courts and Maryland follow the trend that violations of the Rules of Professional Conduct can be evidence of a breach of the standard of care. The Virginia Bar, on the other hand, has stated that the Rules do not have consequences outside of the disciplinary arena.
In the area the standard of care is what a reasonable and prudent lawyer would have done under the circumstances. The Rules of Professional Conduct acknowledge that every decision a lawyer faces is dependent upon the circumstances of the situation.25 Use of violations of the Rules of Professional Conduct as presumptive proof would render useless the intent of the Rules to acknowledge that every decision is dependent upon the circumstances of the situation.
Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer’s violation of a Rule may be evidence of breach of the applicable standard of conduct.
9 “With respect to conduct occurring before January 1, 1991, the provisions of the Code of Professional Responsibility in effect on the date of the conduct in question are the governing rules of decision for the D.C. Court of Appeals, the Board of Professional Responsibility, its hearing committees, and the Bar Counsel.” Administrative Order, No. M-165-88 (D.C. Court of Appeals, Dec. 18, 1989).
19 http://michie.lexisnexis.com/maryland/lpext.dll?f=templates&fn=main-h.htm&cp Click on <Maryland Rules>, then click on the folder <MARYLAND RULES>, then click on <Appendix: The Maryland Lawyers’ Rules of Professional Conduct>.