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The county's new sick leave

County Council farewell picAs has been widely reported, the Montgomery County Council on June 24 enacted a bill requiring employers in Montgomery County to provide paid sick leave to their employees. The law has been described as one of the most employee friendly laws of its kind in the country. The provisions of the law, which will go into effect October 1 of 2016, are found in Chapter 27 of the amendments to the County Code. Some highlights of the law are as follows.

The law in general requires all employers operating and doing business in the County to provide earned sick and safe leave to their employees. For employers who employ 5 or more employees, they must provide 1 hour of paid leave for every 30 hours worked, up to a maximum of 56 hours per calendar year. Employers with less than 5 employees must provide the same number of leave hours, but only 32 of those must be paid. The term employee is defined to exclude, among other things, individuals who do not have a regular work schedule with the employer.

The leave may be used by the employee to care for or treat that person’s mental or physical illness, injury or condition. It also may be used to care for such conditions in a family member, broadly defined to include among others the employee’s child or person in his or her custody, spouse, parent or grandparent. The Act provides that the leave may be used to obtain preventive medical care, and may also be used in cases of domestic violence, sexual assault or stalking to obtain medical attention, assistance from victim’s rights organizations or legal services.

The new law does require the employee to request leave as soon as practicable after determining a need for leave, to notify the employer of the anticipated duration of leave, and to comply with the employer’s reasonable procedures for requesting and taking leave. The employer cannot require the employee to disclose the details of any illness, injury or condition or violate HIPAA requirements of privacy. It does allow the employer to require an employee who uses more than 3 days consecutive leave to document that leave was used appropriately. An employer can decide to grant leave at the beginning of the year, in which case it does not have to allow the leave to carry over into the next calendar year, but if leave is only granted as earned then it must be allowed to carry over.

The law includes notice requirements to employees, record keeping requirements, and enforcement provisions. An employer who has written policies, which all are advised to implement, may also provide that unused sick leave need not be paid upon termination of employment. The delay in the effective date of the law will hopefully allow County employers to implement policies to comply with this new law.

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Putting the Driver Behind the Wheel

Policelights 1It is all too common for police officers to pull over vehicles they see weaving down the road, to find that the operator of the vehicle is intoxicated. A necessary component of obtaining a conviction for DUI or DWI is putting the operator behind the wheel. What kind of evidence can be used to accomplish that was explored recently by Maryland’s Court of Special Appeals in a case called Todd Harding v. State.

 

The Court’s opinion indicates that Baltimore City firefighters responded in the early morning hours to a call indicated that an accident had just happened and there were persons trapped in a vehicle. When they arrived, they found an old pickup truck which had clearly just jumped a curb, gone over a sidewalk and had its front end nudged into some bushes. Smoke was coming from the vehicle and the engine was still running. When they approached, they found Mr. Harding seated partly in the driver’s seat but slumped over onto the bench seat in the truck. They described him as initially unresponsive or sleeping, but he awoke when they touched him.

 

Thereafter, Mr. Harding got out of the truck, and was observed by police staggering up the sidewalk towards his nearby home. An officer testified that he would not admit to driving the vehicle, and his demeanor alternated between laughing and swearing. The officer smelled alcohol on him and arrested him after he refused to perform field sobriety tests, and later refused a breath test for alcohol. A jury ultimately convicted him of driving while under the influence, refusing the breath test, and driving on a suspended license.

 

The sole issue on appeal was whether there was sufficient evidence that he was the driver to take the case to the jury. The Court noted that “drive” for purposes of the DUI statute means “to drive, operate, or be in actual physical control of a vehicle,” and that this can be proven either by direct observation of a witness such as a police officer or by a permitted inference from the facts that the person had driven under the influence. In addition, the Court noted, under current law the fact that the driver refused to take a breath test is admissible evidence and supports finding consciousness of guilt.

 

The opinion goes on to add that the State did not even need evidence of refusal of the test, for the “physical evidence supporting a conclusion that they appellant had been driving the disabled truck was so bounteously sufficient that the permitted inference of the appellant’s consciousness of guilt was completely redundant.” This illustrates that there is more than one way to put the drunk driver behind the wheel. 

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About those police reports ...

 

gavel2Particularly in light of recent deaths of persons in the custody of the police, the issue of use of force by police officers has never been more front and center. Police records regarding use of force may be important information in determining whether there is a widespread problem in a law enforcement department. The disclosure of such reports in specific cases was the subject of a recent opinion by Maryland’s intermediate appellate court in a case called Riggins vs. State.

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One event can create hostile work environment

occupations judge2 sClaims for discrimination in employment under Title VII of the Civil Rights Act of 1964 often rely upon allegations that offensive conduct has created hostile work environment that is discriminatory. As reported in the Daily Record, the 4th Circuit federal appellate court recently addressed whether a single incident can create such an environment sufficient to support such a claim in a case called Boyer-Liberto vs. Fontainebleau Corp.

The Court’s opinion indicates that the case involved a suit by a waitress against the hotel which employed her in Ocean City. The plaintiff claimed she was working as a cocktail waitress one night in the hotel’s bar, when the hostess chastised her for not stopping when the hostess called to her. The hostess allegedly then called her a racial slur. The plaintiff reported this to the HR officer who relayed the information to the hotel owner, who investigated the plaintiff’s job performance and then the plaintiff was fired.

She filed suit alleging a hostile work environment and that her termination from employment was in retaliation for reporting the discriminatory statement. The trial judge dismissed her suit, and a three judge panel of the court upheld that decision. The case was then heard by the entire fifteen judges on the Court, eleven of whom overturned the decision.

The majority of the Court found that the racial insult in this case was so bad that a reasonable jury could find that this insult alone was sufficient to provide proof of a hostile work environment, or at least support the right to complain to management without running the risk of being fired in retaliation. The majority opinion found that a hostile work environment exists “is the isolated incident is physically threatening or humiliating.” The employer had argued that previous cases did not go this far in holding that a single episode, nor matter how egregious the racial epithet, was sufficient to support a finding of a hostile work environment.

It remains to be seen if the employer asks the Supreme Court to review the decision, or whether if the case were tried a jury would agree that this statement created such an environment as to protect the plaintiff who complained about the conduct from alleged retaliatory dismissal.

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The Norwood Case and Miranda

 

police car in front of capital oneWe have all seen on television shows like “Elementary” the scene in the police interview room where the detective interrogates a suspect, only a few of whom seem to think of refusing to talk and asking for a lawyer. The first round of appeals in the Norwood case, involving the Bethesda murder of a co-worker where the defendant then claimed she was also a victim, addresses when in the interrogation process the accused must be given her Miranda warnings that her statements may be used against her and she has the right to counsel.

The sensational and much reported facts of the case involved a violent encounter at a Bethesda store, which resulted in the defendant lying on the floor apparently tied up near the body of her co-worker. The victim had been stabbed 331 times, and the defendant claimed two assailants had assaulted them and robbed the store. After interviewing the defendant four times and investigating other evidence, the police concluded that Norwood had killed the victim, altered the scene to try to cover her tracks and tied herself up to support her story. A Montgomery County jury convicted Norwood of first degree murder and she was sentenced to life without parole.

On appeal, the defense attorneys challenged the admission of a video of a March 16 interview with the police and part of a March 18 interview. During those encounters with the police no Miranda warnings were given to Norwood. Those warnings must be given when the defendant 1) is in police custody and 2) subject to interrogation. One of the issues in this case was at what point Norwood was “in custody” so as to require that her Miranda rights be read to her, which the courts have said is determined by reviewing the totality of the circumstances.

The Court of Special Appeals reviewed the video and transcript of the March 16 police, interview agreed with the trial judge that the defendant was not in custody during that visit to police headquarters. It noted that Norwood appeared voluntarily along with her two siblings. She spoke to the police casually and in a calm and friendly manner. The doors to the interview room were open, and she was allowed to use the rest room and could have left at any time. At the end of the interview she was allowed to leave with her sibling. The March 18 interview occurred at Norwood’s request, because she advised the police there was additional information she wanted to provide. The Court agreed that it was only near the end of that session when she appeared uncomfortable, and when asked to leave was told she could probably leave in a few minutes, that she was in custody and Miranda warnings should have been given.

 

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The rights of those arrested in riots

joseph kent manning his lineThe recent rioting in Baltimore related to the Freddie Gray tragedy taxed not only the police but the court system as well. Hundreds of people were arrested, which made it impossible to process them all in a timely manner. This situation raised constitutional issues, as reported in the Daily Record and elsewhere, that were dealt with this week by the Circuit Court for Baltimore City.

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And now the new police body camera

scales of justiceAs was widely reported, Governor Hogan announced in the wake of the Freddie Gray tragedy and unrest in Baltimore, that he would sign into law a statute recently passed by the Maryland legislature specifically authorizing the use of body cameras by police. The use of such cameras in other states has been a matter of some controversy over privacy concerns, and some Maryland jurisdictions had reportedly already obtained the technology. This is what the new law, enrolled as House Bill 533, provides.

The bill defines a “body-worn digital recording device” as “a device worn on the person of a law enforcement officer that is capable of recording video and intercepting oral communication.” It refers also to an “electronic control device” which apparently can also do such recording, which include a taser or “portable device designed as a weapon capable of injuring immobilizing and inflicting pain on an individual by discharging electrical current.” Subject to the conditions of the remainder of the bill, the new Courts Article section provides that “it is lawful under this subtitle for a law enforcement officer in the course of the officer’s regular duty to intercept an oral communication” with one of these devices.

The law then sets forth conditions under which such recording is lawful. It requires that the officer is in uniform or prominently displaying a badge. It requires that the officer comply with standards, to be adopted pursuant to a new provision of the Public Safety law, for use of these devices. The officer must also be a party to the oral communication, and must notify the individual as soon as possible (unless it is unsafe, impractical or impossible to do so) that the individual is being recorded. The oral recording must also be made as part of a videotape or digital recording. The law is clearly an exception to Maryland’s wiretap laws, which generally require (subject to exceptions) that both parties to an oral conversation consent to it being recorded.

The bill provides under the Public Safety Article that the Maryland Police Training Commission (MPTC) by January 1, 2016 come up with a published policy for the issuance and use of body-worn cameras, including a host of subjects including when recording is mandatory or prohibited, testing procedures on the equipment, and review, use and retention of recordings. It also establishes a Commission made up of legislators, law enforcement representatives, attorneys, and other groups to come up with recommendations to the MPTC by October 1, 2015 for best practices for use of body cameras by law enforcement. Test programs are authorized that are not subject to these forthcoming procedures. It will be interesting to see what policies are adopted to try to balance the purpose of such devices with the public’s privacy interests.

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The "dying declaration" is admissable

gavel2Ordinarily in Maryland the prosecution cannot appeal decisions of a trial judge against the State in a criminal trial. Last week Maryland’s highest Court affirmed a decision of the intermediate appellate court that an appeal of  a trial judge’s decision not to admit a “dying declaration” was appealable, and agreed that the evidence should have been admitted at trial. The case is called Jermaine Hailes v. State.

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