HEADNOTE: Brian Blood v. Columbus US, Inc., No. 1962, September Term, 2016.
Opinion by Wright, Alexander.


LABOR AND EMPLOYMENT – WHAT ARE WAGES IN GENERAL


Employee’s right to receive compensation from a non-compete clause was not
compensation for work performed prior to termination under the Wage Payment and
Collection Law; non-compete was a disqualifying quid pro quo. Accordingly, the circuit
court did not err in its judgment.
In the Circuit Court for Frederick County
Case #10-C-16-001404


                                                           REPORTED


                                            IN THE COURT OF SPECIAL APPEALS

                                                        OF MARYLAND

                                                            No. 1962

                                                      September Term, 2016


                                                  BRIAN BLOOD

                                                               v.

                                                  COLUMBUS US, INC.



                                                  Wright,
                                                  Reed,
                                                  Eyler, James R.
                                                   (Senior Judge, Specially Assigned),

                                                               JJ.



                                                      Opinion by Wright, J.


                                            Filed: April 30, 2018
      This appeal follows denial of Brian Blood’s (“Blood”) Claim of Lien for Unpaid

Wages in the Circuit Court for Frederick County.1 After an evidentiary hearing, the

circuit court extinguished Blood’s Claim of Lien against Columbus US, Inc.,

(“Columbus”), appellee, and granted Columbus’s request for an order denying the Claim

of Lien. Blood now appeals to this Court, and presents the following question for our

review, which we have reworded for clarity:2

      Did the circuit court err in ruling that Blood’s contractual remuneration
      compensation did not qualify as “wages” under the Maryland Wage
      Payment and Collection Act?

      For reasons to follow, we answer this question in the negative and affirm the

judgment.




      1
        See Md. Code (1991, 2016 Repl. Vol.), Labor and Employment Article (“L&E”)
§ 3-1104. Establishing lien.

      A lien for unpaid wages is established:

      (1) after a circuit court issues an order to establish a lien for unpaid wages;
      or

      (2) if no complaint disputing the lien for unpaid wages is filed, within 30
      days after a notice is served under § 3-1102 of this subtitle.
      2
          Blood presented his question as follows:

      Did the Circuit Court err in ruling that Appellee’s contractual remuneration
      compensation does not qualify as “wages” under the Maryland Lien for
      Unpaid Wages Law or the Maryland Wage Payment and Collection Act?
                                             1
                                     BACKGROUND
       The present case arises from a contractual dispute between Blood and his former

employer, Columbus. Blood was the joint owner of an IT3 business, in which Columbus

purchased an interest during the late 1990’s and which Columbus purchased in full, in

2004. On January 4, 2004, Blood entered into a Vice President Contract (“VP Contract”)

with Columbus. At issue in this dispute is Blood’s and Columbus’s interpretation of

Section 10 of the VP Contract, which describes the Non-Competition Clause. Section 10

states in relevant part:

       10.4 In exchange for clause 10.1 excluding 10.1a limitation[4] (ref.
       Appendix 2), the Company shall pay remunerations equal to 100% of the
       VP’s fixed salary, as stated in Appendix 2, upon the Company’s
       termination of the [VP’s] Contract. The remuneration shall be paid in equal
       monthly installments over the period in which the non-competition clause
       applies.

       10.4a In exchange for clause 10.1 incl. 10.1a (ref. Appendix 2), the
       Company shall pay remunerations equal to 50% of the VP’s fixed salary, as
       stated in Appendix 2, upon the Company’s termination of the [VP’s]
       Contract. The remuneration shall be paid in equal monthly installments
       over the period in which the non-competition clause applies.

       10.5 Where the VP violates [the non-compete] the VP shall be obliged to
       pay liquidated damages equal to six monthly fixed salary installments.
       When this clause is violated, one infringement is equal to each calendar
       month or part thereof in which violation takes place. Where the Company
       of Columbus’s loss exceeds the liquidated damages, the VP shall be held
       liable for damages.



       3
           Information Technology.
       4
         On January 1, 2004, Blood signed and agreed to excluding the limitation clause
10.1a in Appendix 2 of the VP Contract, thereby binding himself to a 100% remuneration
for his agreement not to compete with Columbus. The VP Contract continued to roll over
year to year.
                                           2
       10.8 The Company may waive its rights under this non-competition
       clause, and thus its obligation to pay remuneration, by written notice to the
       VP. The notice shall be given no more than 14 days after the Company has
       notified the VP of the termination of his employment, or has received the
       VP’s notice of resignation.

(Emphasis added).

       On June 1, 2015, Blood provided Columbus with six months’ notice of his

resignation, and he resigned from his position on December 1, 2015.5 At the end of that

month, Blood wrote to the Managing Director of Columbus that, because “Columbus did

not notify [him] within 14-days of [his] notice of resignation that [it] was waiving the

non-competition clause,” he was entitled to receive 100% of his fixed salary pursuant to

Section 10.4 of the VP Contract. In January of 2016, counsel for Blood and Columbus

exchanged letters regarding their interpretation of Section 10.4 of the VP Contract.

Columbus argued that Section 10.4 only applied to Columbus’s termination of Blood, not

Blood’s voluntary termination.6 Conversely, Blood maintained that he was entitled to the

non-compete remuneration.7

       On April 19, 2016, Blood sent Columbus a Notice to Employer of Intent to Claim

Lien for Unpaid Wages alleging that Columbus did not timely and regularly pay him



       5
         Columbus had 14 days to provide Blood with written notice that it was waiving
its non-compete after notice of his resignation.
       6
        Columbus made this contention in two letters dated January 15, 2016, and
January 29, 2016, but does not advance this contention on appeal.

       Blood’s counsel made this contention in a letter to the Managing Director of
       7

Columbus dated January 15, 2016. Blood’s counsel sent this letter to Columbus before
Blood was in receipt of Columbus’s January 13, 2016 letter.

                                             3
wages due and owed under Section 10.4 of the VP Contract through April 1, 2016.8

Blood claimed that Columbus owed him at least $53,333.32 in unpaid wages.9 On May

16, 2016, Columbus filed a complaint for an order denying Blood’s Claim of Lien for

Unpaid Wages arguing that, because Blood’s remuneration was conditioned on a

covenant not to compete, it was not recoverable under the Wage Payment Act.10

       On June 20, 2016, Blood responded to Columbus’s complaint, arguing that

“[Section] 10.8 of the contract clearly contemplate[d] that the payments [were] payable

even after [Blood’s] resignation,” and that the payments were akin to those at issue in

Aronson & Co. v. Fetridge, 181 Md. App. 650 (2008). On or about July 1, 2016, Blood



       8
           L&E § 3-1102. Notice required; contents.

       To establish a lien for unpaid wages under § 3-1104 of this subtitle, an
       employee shall first provide written notice to an employer that:

       (1) is served on the employer within the statute of limitations period under
       § 5-101 of the Courts Article;

       (2) is personally served in accordance with Maryland Rule 2-121; and

       (3) contains the information required by the Commissioner under § 3-1110
       of this subtitle to provide the employer with adequate notice of the wages
       claimed and the property against which the lien for unpaid wages is sought.
       9
       Blood claimed that Columbus should have paid these wages on January 1, 2016;
February 1, 2016; March 1, 2016; and April 1, 2016.
       10
          Columbus also claimed that Maryland courts did not have jurisdiction over this
contractual dispute because the contract mandates that contractual disputes will be
governed by the laws of the State of Delaware. However, § 3-1107 of the Wage Payment
Act provides that “[a] contract between an employee and an employer may not waive or
require the employee to waive the right to seek the establishment of a lien for unpaid
wages[. ]” Columbus has not made the choice of law arguments on appeal.

                                             4
sent Columbus a second Notice to Employer of Intent to Claim a Lien for Unpaid Wages

that were allegedly due on May 1, 2016, and June 1, 2016. Columbus failed to file a

complaint in the circuit court within the mandatory 30 days.11 On August 15, 2016,

Blood recorded the wage lien against Columbus pursuant to Md. Code (1991, 2016 Repl.

Vol.), Labor and Employment Article (“L&E”) § 3-1103(b)(1). After Columbus became

aware of the recorded wage lien, it filed a Petition to Extinguish a Recorded Wage Lien

on August 19, 2016, which was later amended to a Complaint to Extinguish Recorded

Wage Lien.

        The case came before the circuit court on September 2, 2016, for an evidentiary

hearing on Columbus’s Complaint Requesting an Order Denying Defendant’s Claim for a

Lien for Unpaid Wages. At the hearing, Blood’s counsel maintained that because the VP

Contract did not state that Blood’s remunerations would cease if he violated the non-

compete, it did not constitute a quid pro quo, and fell within the scope of the Wage

Payment Act. Conversely, Columbus’s counsel maintained that Section 10 of the VP

Contract was a quid pro quo because it conditioned payment on Blood’s non-

competition. Thus, Columbus argued, Blood’s reliance on our decision in Aronson was

misplaced because in that case the employee’s deferred compensation was not

conditioned on a non-compete since the employer determined the compensation every

year.



        11
        L&E § 3-1103(b)(1) provides that an employer may dispute a lien for unpaid
wages “within 30 days after notice is served on the employer.”

                                             5
      In making its findings, the circuit court addressed whether Blood’s remuneration

fell within the scope of the Wage Payment Act and found it did not.12 In reviewing

whether Blood’s remuneration was similar to the remuneration in Stevenson v. Branch

Banking and Trust Corp., 159 Md. App. 620 (2004), or Aronson, the court determined

that the language of “in exchange for” contained in the VP Contract rendered it a quid

pro quo. The case was distinguishable from the compensation agreement in Aronson

because “the compensation owed was for the employee’s services completed prior to

termination.” (Emphasis added). The court also contrasted Blood’s compensation from

the disputed compensation in Medex v. McCabe, 372 Md. 28 (2002), because Blood’s

remuneration was tied to his non-competition for a period of time following termination,

and therefore, was not a “wage.” The circuit court held that the prevailing Maryland case

law dictated that Blood’s remunerations were not “wages,” and it denied Blood’s claim

for a Wage Lien and extinguished his Wage Lien.13

      Additional facts will be added as they become relevant to our analysis.

                              STANDARD OF REVIEW
      Where an order appealed from “involves an interpretation and application of

Maryland statutory and case law, [we] must determine whether the [circuit court’s]




      12
          L&E § 3-1103(d)(2) provides that, “the circuit court shall determine whether to
issue an order establishing a lien for unpaid wages . . . based on a preponderance of the
evidence in which the employee has the burden of proof to establish the lien for unpaid
wages.”
      13
         The record indicates that a Wage Lien was filed against Columbus, when it did
not timely respond to Blood’s Notice of Lien, but does not contain a filing date.
                                            6
conclusions are ‘legally correct’ under a de novo standard of review.” Walter v. Gunter,

367 Md. 386, 392 (2002). Additionally, the interpretation of contracts is a question of

law for the court. Calomiris v. Woods, 353 Md. 425, 434 (1999).

       Generally, on appeal of an action tried without a jury, such as here, we are bound

by the circuit court’s findings of fact unless they are clearly erroneous. Md. Rule 8-

131(c); see also Cunningham v. Feinberg, 441 Md. 310, 321-22 (2015). We typically

afford no deference to the circuit court’s legal determinations and conclusions of law,

reviewing them de novo. See Shih Ping Li v. Tzu Lee, 437 Md. 47, 57 (2014). These

legal determinations and conclusions of law also apply to the interpretation of contracts.

Sy-Lene of Washington, Inc. v. Starwood Urban Retail, 376 Md. 157, 163 (2003). As the

circuit court’s determination of whether Blood’s remuneration compensation was a

“wage” was conditioned on the interpretation of the Wage Payment Act by Maryland’s

appellate courts, we review its decision de novo.

                                      DISCUSSION

                                             I.
                The Applicability of the Maryland Wage Payment Act
                           to the Non-Compete Provision

       The crux of Blood’s argument was, and is, that his remuneration compensation

under the VP Contract qualified either as a “fringe benefit” or “any other remuneration

promised for service.” Blood argues that his VP Contract was the same as the non-

compete compensation we held were “wages” under the Wage Payment Act in Aronson.




                                             7
Conversely, Columbus contends that Blood’s remuneration compensation is a quid pro

quo, similar to the severance package at issue in Stevenson.

       While the Maryland Lien for Unpaid Wages Law does not define “wage,” the

Maryland Wage Payment and Collection Act provides further guidance.14 The Maryland

Wage Payment and Collection Act was intended “to provide a vehicle for employees to

collect, and an incentive for employers to pay, back wages.” Medex v. McCabe, 372 Md.

28, 39 (2002). The Wage Law, in L&E § 3-501(c)(1), defines the term “[w]age” to mean

“all compensation that is due to an employee for employment.” L&E § 3-501(c)(2) adds

that a “[w]age” includes: (i) a bonus; (ii) a commission; (iii) a fringe benefit; or (iv) any

other remuneration promised for service.” This right to compensation vests only when an

employee “ha[s] performed all the work necessary to earn the [compensation] before

termination.” Medex, 372 Md. at 37; see also Whiting-Turner v. Fitzpatrick, 366 Md.

295, 304-05 (2001) (emphasis added). The Court of Appeals has established a bright line

test, stating that once a “bonus, commission or fringe benefit has been promised as part of

the compensation for service, the employee would be entitled to its enforcement as

wages.” Whiting & Turner, 366 Md. at 305. And “it is the exchange of remuneration for

the employee’s work that is crucial to the determination” of whether that compensation is

a “wage.” Medex, 372 Md. at 36 (emphasis added). Thus, if Blood’s remuneration was

in “exchange” for work performed before termination, or as a result of employment, it




        L&E § 3-1101(d) states only that the term “‘wages’ does not include
       14

commissions.”
                                              8
will fall under the scope of the Act. See Whiting-Turner, 366 Md. at 303; Stevenson, 159

Md. App. at 644.

       We begin our analysis of this issue by examining two cases the parties rely on to

support their positions. Although the parties are misguided in arguing that this case fits

neatly with either Stevenson or Aronson, the interpretation of “wages” and the Wage

Payment Act in both cases necessarily frames our analysis.

       In Stevenson, we considered whether an employee could recover wages from a

Termination Compensation provision under the Wage Payment Act when an employment

agreement explicitly conditioned Compensation on a non-compete covenant. Stevenson,

159 Md. App. at 645-47. The Employment Agreement stated, “if Employee breaches

[the non-compete in] section 4(a) of this Agreement during the period [s]he is receiving

Termination Compensation, Employee will not be entitled to receive any further

Termination Compensation [.]” Id. While we found that a severance benefit, based on

the length or nature of an employee’s service, and promised upon termination, might be

recoverable under the Act, we concluded that Stevenson’s Termination Compensation

compensated her for two years that she would not be working with her employer. Id. at

644-45. Specifically, the Employment Agreement stipulated that if Stevenson competed

with her employer, she would not be entitled to receive any further Termination

Compensation, creating an explicit quid pro quo. Id. at 646.

       In Aronson, we considered whether an employee who had involuntarily terminated

could recover wages from a Terminating Employee Compensation (“TEC”) under the


                                             9
Wage Payment Act. 181 Md. App. at 668-72. Section 9(a) of the Employment

Agreement stated, “[p]ursuant to this Agreement, whenever [Fetridge] shall be entitled to

receive [TEC], he . . . shall be entitled to receive payment of an amount equal to [his]

Deferred Compensation Account[.]” Id. at 658. Although the Agreement contained a

covenant not to compete for a period of three years, we found that the remunerations

were not like the quid pro quo in Stevenson. Fetridge’s employer argued that the TEC

was conditioned on Fetridge’s compliance with the covenant not to compete. Id. at 666.

Aronson cited Stevenson, arguing that “a payment conditioned on a covenant not to

compete is not recoverable under the Wage Law,” even if the employee did not violate

the covenant. Aronson was asserting that Fetridge’s Agreement was like that in

Stevenson because the TEC was “subject to a setoff right.” Id. Aronson believed that its

right to setoff converted the TEC into post-termination compensation, rendering it

beyond the scope of the Wage Law. Id. at 666-67. We found that argument

unpersuasive.

      We concluded that Fetridge’s TEC vested upon his termination and was tied to his

Deferred Compensation Account, which began during his employment. Id. at 678-80.

Unlike the severance compensation at issue in Stevenson, Fetridge’s Agreement did not

explicitly state that the TEC would end if Fetridge competed with Aronson. We

determined that Aronson’s “right to offset” functioned the way a traditional setoff would,

establishing Aronson’s right to reduce the amount of termination compensation owed to

Fetridge under the TEC. Id. at 668. Thus, whether or not he violated the covenant not to



                                            10
compete, Fetridge was entitled to continue receiving the TEC, which we found not to be a

disqualifying quid pro quo. Id.

      Blood argues that our holding in Aronson governs the disposition of this case.

Blood avers that his remuneration vested in December of 2004 when he signed his

contract, and that the “in exchange for” language creates two options that Blood could

elect to exercise: (1) bind himself to a non-compete to receive 100% of his VP fixed

salary, an oppressive option or (2) bind himself to a non-compete for 50% remuneration.

Blood urges us to read the VP Contract broadly, taking into consideration the inclusion of

the remuneration compensation in the definition of “salary” in Section 4.2; the inclusion

of the non-competition selection in Appendix 2;15 and the inclusion of “fringe benefit” in

the definition of wages in the Wage Payment Act.

      Columbus responded that Stevenson is the controlling case law. Columbus

asserted that “Blood’s post-employment compensation is not ‘deferred compensation for

work performed during employment’ or ‘based on the length or nature of [Blood’s]

service.’” Stevenson, 159 Md. App. at 644. Columbus avers that, contrary to Blood’s

contention, Section 10.5 is not an offset – if Blood violates the non-compete, Columbus

is excused from paying Blood the remuneration pursuant to Section 10.4.

      In Stevenson, we found that a quid pro quo existed because the terms of the

employment contract made it clear that Stevenson’s termination compensation was



      15
         Appendix 2 outlined the Compensation for Blood. Blood’s Non-Competition
provision is nested under Appendix 2, and he signed to exclude the MBS limitation
clause 10.1a.
                                            11
explicitly tied to her duty not to compete with her employer. The relevant provision is as

follows:

      [Section 6(c)]: . . . Notwithstanding anything in this Agreement to the
      contrary, if Employee breaches [the non-compete provisions in] section
      4(a) of this Agreement during the period that [s]he is receiving Termination
      Compensation, Employee will not be entitled to receive any further
      Termination Compensation[.]

Stevenson, 159 Md. at 645 (emphasis added).

      There is no such explicit clause in Blood’s agreement. But notwithstanding the

above, Blood’s employment agreement established that his non-compete compensation is

“remuneration promised for [Blood’s] services” in refraining from competing with

Columbus and is not a wage “due for work that [Blood] performed before the termination

of [his] employment[.]”16 As the Court of Appeals emphasized in Whiting-Turner and


      16
           L&E § 3-505. Payment on termination of employment; accrued leave.

      (a) In general. – Except as provided in subsection (b) of this section, each
      employer shall pay an employee or the authorized representative of an
      employee all wages due for work that the employee performed before the
      termination of employment, on or before the day on which the employee
      would have been paid the wages if the employment had not been
      terminated.

      (b) Payment of accrued leave. – An employer is not required to pay accrued
      leave to an employee if:

      (1) the employer has a written policy that limits the compensation of
      accrued leave to employees;

      (2) the employer notified the employee of the employer’s leave benefits in
      accordance with § 3-504(a)(1) of this subtitle; and

      (3) the employee is not entitled to payment for accrued leave at termination
      under the terms of the employer’s written policy.
                                            12
Medex, “an employee’s right to compensation vests [only] when the employee does

everything required to earn the wages,” and the Wage Payment Act affords relief only

when the employee “ha[s] performed all the work necessary to earn [compensation]

before termination.” Medex, 372 Md. at 37; see also Whiting-Turner, 366 Md. at 304-05;

(emphasis added).

       Blood relies heavily upon our decision in Aronson, which is distinguishable from

the case sub judice. In Aronson, the language of the employment agreement provides that

the employee, Fetridge, would continue receiving his TEC, even if he violated the

covenant not to compete. Specifically, Fetridge’s employee agreement stated “whenever

[Fetridge] shall be entitled to receive ‘Terminating Employee Compensation,’ he . . .

shall be entitled to receive payment of an amount equal to [his] Deferred Compensation

Account . . . .” Aronson, 181 Md. at 658. The Deferred Compensation Account was

determined annually in May of every year that Aronson employed Fetridge. Id. at 659.

Fetridge’s compensation was a “wage” because it was tied to a TEC that vested during

his employment. There exists no comparable Deferred Compensation Account that

would have vested in this case that was created contemporaneously with Blood’s promise

not to compete. 17 In fact, section 9 of the VP Contract governs restrictions on




       17
         Blood, pursuant to sections 10.4 and 10.4a, had the option to receive
remunerations equal to 100% or 50% of the VP’s fixed salary depending on the scope of
the non-competition clause. Blood could have decided to take “door number three”
whereupon he would not be burdened with a non-competition clause and thereupon
provided no “remunerations” at all as he was not obligated to promise not to compete.

                                            13
involvement in other businesses during employment. If Columbus intended to create a

Deferred Compensation Account to compensate Blood for adhering to a non-compete, it

could have created it as compensation in section 9 – it did not.18 On its face, and given

its contractual language, specifically the phrase “in exchange for,” it is clear that this was

not compensation that vested during Blood’s employment, but only vested and accrued

after employment and, accordingly, is not a “wage.” Although in this case there is an

arrangement under which Blood would be obligated for liquidated damages had he

violated the non-compete agreement, that alone is not dispositive when the remuneration

was not promised as part of compensation for service. See Aronson, 181 Md. 667-68.

       As we have stated, this case does not fit neatly under either Stevenson or Aronson,

but following the dictates of both, we hold that Blood does not have a Wage Payment Act

claim with respect to Columbus’s refusal to pay him for the non-competition clause of the

VP Contract because (1) L&E § 3-507.1 may be invoked only when the employer “fails


       18
         Section 9 of the VP Contract governs restrictions on involvement in other
businesses during employment and states that the VP shall not:

       (01) During his employment under this Contract carry on or be directly or
       indirectly concerned, engaged or interested (whether as a principal,
       shareholder, partner, employee, agent, consultant, adviser or otherwise) in
       any trade or business which competes with the business of the Company or
       Columbus; or

       (02) Carry on or be concerned, engaged or interested in any other trade or
       business without the previous consent of the Board evidenced in writing
       (which may be given subject to certain terms or conditions the breach of
       which shall be deemed a breach under this Contract).

       (03) Disclosure of current concerned, engagement or interests are stated in
       Appendix 3.
                                              14
to pay an employee in accordance with § 3-505,” (2) L&E § 3-505 applies only to

employers who do not promptly pay all “wages due for work that the employee

performed before the termination of employment[,]” and (3) Blood’s Non-Competition

Clause Compensation, when tied with the quid pro quo promise not to compete as

verified in Appendix 2, is not payment “for work [Blood] performed before the

termination of employment.”

                                                 II.

                             Treble Damages and Attorney’s Fees

       Under the Wage Payment Act, a court can award triple treble damages if it

determines that there is not a “bona fide dispute.” However, if the court determines a

“bona fide dispute” exists, it cannot award triple treble damages. An employer bears the

burden of producing evidence that a “bona fide dispute” existed. The Court of Appeals

has defined a “bona fide dispute” as “a dispute . . . in which the employer resisting the

employee’s claim . . . ‘has a good faith basis for doing so,’ where there is a ‘legitimate

dispute over the validity of the claim”’ or the amount owed. Admiral Mortg., Inc. v.

Cooper, 357 Md. 533, 543 (2000). Generally, these disputes “depend on the

circumstances” and are considered a matter for the jury. Cooper, 357 Md. at 533, 541;

see Medex, 372 Md. at 44.

       At the heart of both Blood’s and Columbus’s arguments is whether or not the

remuneration constituted a “wage” for the purposes of the Wage Payment Act.

Columbus proffered in its briefs and the evidentiary hearing that a “bona fide dispute”

existed because it has a “good faith basis” for rejecting Blood’s claim to the remuneration

                                            15
compensation. We have ruled in Columbus’s favor and that forecloses an award for

treble damages as wages are not owed to Blood.

                                       CONCLUSION

      Our reading of Maryland case law regarding “wages” under the Wage Payment

Act and our interpretation of the VP Contract leads us to conclude that Blood’s

remuneration payments were not “wages” for the purposes of the Act and constituted a

quid pro quo. Accordingly, we affirm the circuit court’s judgment.

                                         JUDGMENT OF THE CIRCUIT COURT
                                         FOR FREDERICK COUNTY AFFIRMED.
                                         COSTS TO BE PAID BY APPELLANT.




                                           16
