Guarding Against Discrimination in Physician Compensation in Maryland

Maryland doctors are paid differently based on gender, race and ethnicity, according to the results of a recent survey commissioned by the Maryland State Medical Society.

The survey set forth the following four statistics evidencing the gender pay gap:

In 2020, female Maryland physicians earned 50% less on average than male physicians. The average annual income for male physicians was $320,000 compared to $213,000 for female physicians.
In 2020, female Maryland primary-care physicians earned 41.2% less in average pre-tax annual income than male primary-care physicians. The average pre-tax annual income for male physicians was $262,542 compared to $172,542 for female physicians.
In 2020, female Maryland physicians in surgical, diagnostic and other specialties earned 33.5% less in average annual income than male physicians. The average annual income for male specialist physicians was $350,625 compared to $250,115 for female specialist physicians.

The gender-based pay gap changed little compared to a similar survey of 2016 Maryland physician compensation. In 2016, female Maryland physicians earned 49.6% less than male physicians.

The survey report also showed the pay disparity based on race, with Asian Americans being the highest paid:

In 2020, Maryland physicians’ average pre-tax annual income varied by race and ethnicity. Asian American physicians reported average income of $325,000, Caucasian physicians reported average income of $268,000, and African American physicians reported average income of $225,000.

Lebau & Neuworth attorneys have expertise in representing physicians in Maryland and elsewhere in research, academic and clinician roles. Steve Lebau negotiates contracts on behalf of Maryland physicians, provides advocacy in licensure and credentialing issues, and, when required, litigates zealously on behalf of the firm’s physician clients.

If you are a physician in need of legal representation, contact Lebau & Neuworth at (410) 296-3030 or email us at lebauneuworth.com/contact-us.

Failure to Renew Employment Contracts Can Be Wrongful Termination

Recently, in Miller-Phoenix v. Baltimore City Board Of School Commissioners, (Md. Ct. Spec. App. May 29, 2020), the Court of Special Appeals held that failing to renew an employment contract may create a wrongful termination claim under Maryland law.

In the case, Mr. Miller-Phoenix (the employee) was a public-school teacher for Baltimore City (the employer). In October 2016, the employee signed a temporary employment contract with the employer and, the next day, filed a worker’s compensation claim for post-traumatic stress disorder (PTSD). In April 2017, the employer notified the employee that his employment contract was not being renewed and he would be terminated in June 2017.

The employee filed a lawsuit against the employer for numerous alleged violations, including wrongful termination. Specifically, the employee alleged that he was terminated in retaliation for filing his workers’ compensation claim.

At the initial level, the lower court ruled in favor of the employer on all the employee’s claims. With respect to the wrongful termination claim, the lower court ruled that non-renewal of a contract could not create a wrongful termination claim.

The employee appealed to the Maryland Court of Special Appeals. The appeals court ruled in favor of the employee finding that failing to renew an employment contract in retaliation for filing a workers’ compensation claim would violate Maryland public policy.

This is an important case for contractual employees in Maryland because it reminds employers that they can potentially be held liable for failing to renew employment contracts for reasons that violate Maryland’s public policy, including because of race, sex, disability or in retaliation for filing a workers’ compensation claim.

If you think you have been wrongfully terminated, the attorneys at Lebau & Neuworth may be able to help. We are highly experienced with handling all types of employment-related cases. For more information, contact us at (410) 296-3030 or lebauneuworth.com/contact-us.

Noncompete Agreements for Low-Wage Workers Banned in Maryland as of Oct. 1

A new law in Maryland that prevents employers from entering into noncompete agreements with employees who earn $15 per hour or less or $31,000 annually went into effect on October 1, 2019. The new law was passed on May 25, 2019.

Noncompete agreements are agreements that restrict an employee’s ability to find employment with a new employer that is in a similar business as their previous employer. Under the new law, agreements that are the subject to the act are those “that restrict the ability of an employee to enter into employment with a new employer or to become self-employed in the same or similar business or trade.”

The law does not limit the restrictions to those that only limit an employee after they leave employment. Therefore, the law likely bans restrictions on moonlighting or side work as well.

After the new law went into effect, any noncompete restrictions between employers and covered employees became null and void, regardless of whether the parties entered into the agreement in Maryland or outside the state.

If your employer required you to sign a noncompete agreement that is limiting your ability to find new employment, the attorneys at Lebau & Neuworth may be able to help. For more information, contact us at (410) 296-3030 or lebauneuworth.com/contact-us.

Maryland Court Holds a Non-Compete is Unenforceable

Frequently, employers require employees to sign non-compete agreements that limit an employee’s ability to find future employment. In Maryland, such agreements are enforceable if the agreements are reasonable. However, if the scope and/or duration are unreasonable or the non-compete agreement causes an undue hardship on the employee, the agreement may be unenforceable.

The U.S. District Court for the District of Maryland’s recent decision in Allied Fire Protection, Inc. v. Huy Thai, No. 17-551 (D. Md. 10/2/17), offers an example of an unenforceable non-compete agreement.

There, the employer filed suit to enforce a non-compete agreement that prevented the employee from “engag[ing] in any way business of a similar nature” to the employer’s business, either directly or indirectly, for five years. In response, the employee filed a motion to dismiss the employer’s lawsuit, which the court granted.

The court first determined that the scope of the non-compete was unenforceable because the language of the agreement would “restrict [the employee’s] ability to engage directly or indirectly in any type of engineering, consulting or general construction business anywhere within Maryland or for that matter, the world.” The court also noted that, in order to be enforceable, non-compete agreements must be “narrowly tailored."

Next, the court held that five years was unreasonable and unenforceable because the employer failed to provide any evidence or facts in support of such a long duration. The employer also failed to cite any case where a Maryland court upheld a non-compete agreement with a five-year duration.

Finally, the court found that the non-compete agreement caused the employee undue hardship and violated Maryland’s public interest because it prevented him from performing any similar work.

For the above reasons, the court granted the employee’s motion to dismiss and held that the non-compete agreement was not enforceable.

This case is important for employees because it serves as a reminder that not all non-compete agreements are enforceable.

If your employer is requiring that you sign a non-compete agreement or is trying to enforce an agreement that you signed, the attorneys at Lebau & Neuworth may be able to help. We are experienced in dealing with non-compete agreements and other employment related contracts such as these. For more information, contact us at (410) 296-3030 or lebauneuworth.com/contact-us.

Fourth Circuit Issues Important False Claims Act Decision

In US ex rel. Badr v. Triple Canopy, Inc., the U.S. Court of Appeals for the Fourth Circuit, which includes Maryland, issued an important decision regarding the Federal False Claims Act (FCA). The FCA provides that any person who knowingly submits false claims for payment to the government may be liable for double the government’s damages, plus a penalty of between $5,500 to $11,000 per false claim.

This is an important case because it establishes the potential for FCA liability where government contractors submit invoices for payment to the United States while knowing they have not satisfied the core requirements of their contract.

In the case, the United States contracted Triple Canopy Inc. to provide security guards at a military base in Iraq. A core requirement of the contract was that the security guards pass marksmanship tests. The plaintiffs alleged that Triple Canopy Inc. violated the FCA and defrauded the government by falsifying the marksmanship records of the security guards. Triple Canopy Inc. challenged the sufficiency of the complaint, alleging that the plaintiffs had not properly alleged violations of the FCA because Triple Canopy had done nothing other than submit invoices to the United States.

The Fourth Circuit disagreed, ruling that the plaintiffs satisfied the pleading requirements of the FCA because “anyone reviewing Triple Canopy’s invoices would probably — but wrongly — conclude that Triple Canopy had complied with core contract requirements,” i.e., the guards were qualified marksmen. Accordingly, the plaintiffs’ allegations that Triple Canopy Inc. defrauded the United States were sufficient and the case will be allowed to proceed.

If you think your employer may be submitting false or fraudulent claims to the United States, the attorneys at Lebau & Neuworth may be able to assist you. For more information, contact us at (410) 296-3030 or lebauneuworth.com/contact-us.

Enforcing Arbitration Agreements – Not So Fast In Maryland Federal Court

Arbitration agreements are unfair and undermine employee rights, and because of that, employers embrace them. But a recent Maryland federal court has slowed down the rush in enforcing unreasonable, employer-mandated arbitration agreements.

In Brent v. Priority 1 Automotive Case #: PWG-14- 1705, the Maryland federal court refused to enforce an arbitration agreement because the employer gave nothing of value to the employee in exchange for duty to arbitrate. The court held that continued employment is not enough to support a contract to arbitrate.

Further, the court noted that the employer was too clever for his own good in stating in the arbitration agreement that either side “may request” that an employment dispute be arbitrated. In fact, it did not require arbitration.

Another problem was that the employer’s employee handbook, while referring to arbitration for disputes, also stated that the employer could “enforce, change, abolish or modify existing policies.” Therefore, because the employer could change what it wanted to, whenever it wanted to, and the employee had no such right, the court found the arbitration requirement unenforceable because the employer did not create a binding obligation on itself.

This blog will keep you posted on developments in so-called mandatory arbitration. In the meantime, if you have any related questions, contact Lebau & Neuworth at (410) 296-3030 or lebauneuworth.com/contact-us.