Baltimore, MD asked in Employment Law, Business Law and Employment Discrimination for Maryland

Q: I worked for a security company who subcontracted from a hospital, they received shift deferential & holiday pay not us

I represent several Security Officers who worked for a security company that subcontracted with the University of Maryland Hospital system. The company received shift deferential and holiday pay. The company does not pay it to officers. I believe that this isn't mandatory in Maryland but isn't it unethical to take in such revenue for Officers labor and fail to pass down said monies to the Officers? Please advise. . .

1 Lawyer Answer
Kenesha A Raeford
Kenesha A Raeford
  • Employment Law Lawyer
  • Columbia, MD
  • Licensed in Maryland

A: Given that your question is one of ethics, this would be difficult to answer from a purely legal perspective. I have to refrain from providing my general opinion, but I will echo your sentiments regarding the mandatory nature of the shift deferential and holiday pay flowdown. Holiday and shift differential pay are considered benefits in Maryland, and are not required by the Maryland Department of Labor nor the Federal Fair Labor Standards Act. Ultimately, because your Security Officers are subcontractors, there is a question regarding employee v. independent contractor. If they are, at the very least employees, of the sub-contractor company, there is a potential wage issue that would exist directly with the Security company. This issue could be present where the company has promised or entered into a prior agreement with the employees to pay them holiday and shift differential pay and simply has not paid it.

Additionally, the contract between the subcontractor and the prime contractor, or any contracts with the University of Maryland, could also provide an indication as to where the holiday and shift differential pay was supposed to be allocated. If the contract is clear that it was paid out to the security company for the sole purpose that it should be disbursed to the officers, there is a possibility that a breach of contract exists. However, this could be difficult to enforce given the lack of privity (or relationship) between the officers and the actual parties to the contract. If there is enough substantive information to show that the security officers are intended third-party beneficiaries of the contract, then the officers could have a basis to enforce the contract, and assert rights to the holiday and shift differential pay.

If none of this is applicable, and this remains a purely ethical issue, it may be worth looking into any applicable union agreements (if the workers are in a union like the NUSPO). Contacting a lawyer that specializes in Labor laws and Union work, could be very helpful if you suspect there is a serious issue, and the likelihood of this issue changing on its own is low.

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