Joseph F. Cunningham, et al., v. Matthew Feinberg, No. 27, September Term, 2014 

Labor & Employment—Maryland Wage Payment and Collection Law—Lex Loci 

Contractus 

Wage claims arising from employment entered into in states other than Maryland are not 

excluded, for that reason alone, from being litigated under the Maryland Wage Payment 

and Collection Law (“MWPCL”), Labor & Employment, §§ 3-501 et. seq. The doctrine 

of lex loci contractus is not implicated, in the absence of an express choice of law 

selection in the contract, when the litigation of such claims does not involve the validity, 

enforceability, interpretation, or construction of the employment contract. Even if lex 

loci contractus applied to such claims of unpaid wages, it is likely that the MWPCL 

represents Maryland’s strong public policy regarding employees’ wage claims and 

therefore comes within a recognized exception to the lex loci contractus doctrine. 
Circuit Court for Montgomery County 

Case No. 8778 D 

Argued: November 12, 2014 

IN THE COURT OF APPEALS OF 

MARYLAND 

No. 27 

September Term, 2014 

 

JOSEPH F. CUNNINGHAM, ET AL. 

v. 

MATTHEW FEINBERG 

 

 

 Barbera, C.J., 

 Harrell,

Battaglia, 

 Greene,

 Adkins,

 McDonald,

 Watts, 

 JJ.

 

Opinion by Harrell, J.

Adkins, J., concurs. 

 

 

Filed: January 27, 2015 
 In this relatively contentious dispute between a young lawyer associate and his 

former law firm employer over a small amount of allegedly unpaid wages, a medium 

amount of treble damages, and a large amount of attorney’s fees, we are called on to 

consider the intersection between a fairly complex choice of law doctrine and a fairly 

straightforward portion of Maryland’s Labor and Employment statute. We hold that 

unpaid wage claims arising from employment entered into in states other than Maryland 

are not excluded, for that reason alone, from being litigated under the Maryland Wage 

Payment and Collection Law (“MWPCL”), Labor & Employment, §§ 3-501 et. seq. The 

choice of law doctrine lex loci contractus is not implicated, in the absence of an express 

choice of law selection in the contract, when such claims do not involve the validity, 

enforceability, interpretation, or construction of the employment contract. We suggest 

further that the MWPCL represents Maryland’s strong public policy. Final resolution of 

the parties’ dispute must await, however, another day in court. 

I. STATEMENT OF THE CASE, NUMEROUS ALLEGATIONS,

AND ONE FACT

Matthew Feinberg, Esq. (“Feinberg”), filed on 4 October 2012 a Complaint in the 

District Court of Maryland, sitting in Montgomery County, against Cunningham & 

Associates, P.L.C. (“C&A”), a Virginia-based law firm, and its principal, Joseph F. 

Cunningham (“Cunningham”).1 Although the Complaint set out four counts, only one 

survives here: Feinberg’s claimed violation by C&A and Cunningham of the Maryland 

Wage Payment and Collection Law (“MWPCL”), Maryland Code (1999, 2008 Repl. 

 

1 C&A and Cunningham are referred to sometimes hereafter collectively as “Petitioners.” 
2

Vol.), Labor & Employment, §§ 3-501 et. seq.,

2

 for which he seeks $1,974.20 in unpaid 

wages, treble damages, attorney’s fees, and costs.3,4

Feinberg was the only witness to testify at the 17 April 2013 trial in the District 

Court. He told the Court of his application for an attorney position with C&A, the

interview process, and his initial understanding of the terms of his employment. Feinberg 

suggested that he was hired by C&A to serve as a Maryland attorney, handle Maryland 

cases, appear before Maryland courts, and advise Maryland clients. He recounted signing 

a written agreement (“Agreement”) with Cunningham wherein his position was described 

as that of an “independent contractor,” although he could not recall specifically where 

geographically he signed the agreement. He spoke about his day-to-day practice, work 

environment, and responsibilities, including Cunningham’s requirement that he spend the 

vast majority of his time in C&A’s Virginia office. Feinberg testified that his work for 

Petitioners included representing clients at trial and motions hearings, attending 

depositions, meeting with clients, and gaining admission to the U.S. District Court, all in 

Maryland. As might be expected in a wage claim case, a substantial portion of 

Feinberg’s testimony was devoted to the manner in which he was paid by C&A and 

 

2 Unless otherwise provided, all statutory references are to Maryland Code. 

3

 The additional counts set out in his Complaint were for Fraud (Intentional 

Misrepresentation), Quantum Meruit, and Unjust Enrichment, seeking collectively the 

unpaid wages as well as reimbursement for taxes paid in the amount of $8,620.81, plus 

interest.

4

 The District Court granted preliminarily Petitioners’ motion to dismiss, on the basis of 

federal preemption, the claims for tax reimbursement. 
3

monies that he claimed were withheld improperly from his paychecks on various 

occasions. The Agreement that Feinberg signed with Cunningham was produced. The 

portions of the contract relevant potentially to the payment of wages are as follows: 

That in consideration of the mutual covenants and agreements 

hereinafter set forth, and for other good and valuable 

consideration, it is hereby mutually agreed . . . :

. . . 

5. Contractor invoices will be submitted bi-weekly. 

. . . 

7. The Contractor will determine the amount of hourly time 

expended on work assigned to be undertaken. 

8. The Contractor’s earnings will depend solely on his/her 

own production.[5]

Feinberg also discussed several instances when he disputed with Cunningham particular 

withholdings. 

At the close of Feinberg’s case-in-chief, Petitioners moved to dismiss the 

remaining wage claims on two grounds: first, no claim could lie on an implied contract 

theory, such as quantum meruit or unjust enrichment, as there was an express contract 

between the parties; and, second, the parties’ contract was governed, under Maryland’s 

choice of law principles, by Virginia’s law, and, as such, the MWPCL did not apply.6

 

 

5

 It remains a mystery why the Agreement provided no salary amount or arithmetical 

means to calculate same. 

6

 We understand Petitioners’ argument in support of their motion to dismiss to be that the 

Agreement between the parties was a “Virginia” contract, and that, in light of choice of 

law principles, the substantive law of Virginia should be applied. There being no private 

 (Continued...)
4

After hearing arguments from both sides, the District Court granted Petitioners’ motion. 

Ruling from the bench, the judge found the following facts in support of his ruling: 

[T]he testimony in this case began by Mr. Feinberg 

describing his applying for this job, seeing this ad and 

applying with [C&A]. And he submitted his resume[;] he 

then goes to Virginia where he meets with [Cunningham]. 

. . . They signed this contract. I think it’s a Virginia contract. 

. . . I understand Mr. Feinberg has an office in Bethesda. . . . 

And he was living in D.C. . . . [A]fter he left [C&A] he 

moved to Gaithersburg where he got a couple checks. And 

then he moved back to D.C.

The trial judge’s ruling turned on one fact: the employment contract was a “Virginia” 

contract. In his view, because the Agreement between Feinberg and C&A was an 

employment contract entered in Virginia, and not in Maryland, the court held that the 

MWPCL did not apply, and the contract was governed instead by Virginia law. 

Furthermore, the District Court did not identify a strong public policy basis to apply the 

MWPCL to Feinberg’s claims.7

 Accordingly, the District Court did not find any facts in 

 

(...continued)

right of action for unpaid wage claims under Virginia’s version of a wage claim statute, 

Maryland courts may not entertain Feinberg’s unpaid wages claim. We do not 

understand Petitioners’ motion to dismiss to challenge either the Maryland courts’ 

personal or fundamental jurisdiction in this matter. 

7 Specifically, the Court reasoned: 

I agree that for the Maryland statute there’s no public policy 

exception from the Maryland Labor and Employment statute 

that requires this to be here. . . . 

. . . 

 (Continued...)
5

addition to the one that was—in its view—dispositive.8 The court noted that the 

dismissal was without prejudice, in order to preserve any potential causes of action that 

Feinberg may have in Virginia. 

 Feinberg filed a Motion to Alter or Amend Judgment and/or for Reconsideration 

regarding his MWPCL claim. He relied on Himes Associates, Ltd. v. Anderson, 178 Md. 

App. 504, 943 A.2d 30 (2008), which he suggested was controlling appellate precedent.9 

In that case, the plaintiff, employed by a Virginia company, worked primarily from a 

Virginia office, but performed certain work in Maryland. Himes, 178 Md. App. at 513–

16, 943 A.2d at 35–36. The intermediate appellate court held that Anderson could bring 

a suit in Maryland under the MWPCL. Himes, 178 Md. App. at 535, 943 A.2d at 48. 

Feinberg argued that he was actually C&A’s employee, not an independent contractor, 

and as such that he was entitled to the unpaid wages, treble damages, and attorney’s fees 

and costs. His motion was denied.

 Feinberg appealed, on the record, to the Circuit Court for Montgomery County. 

See Maryland Rule 7-102(b)(1). The parties submitted on memoranda. Feinberg 

 

(...continued)

. . . I don’t find in this case that this is a Maryland 

employment contract [but] find that this [is] a Virginia 

employment contract, [so] choice of law should be Virginia. 

I’ll adopt the argument of the defense. . . . 

8

 The judge did not reach the merits of the matter or decide any further issues relevant to 

the MWPCL claim, including whether Feinberg was an independent contractor or an 

employee or whether there was a bona fide dispute over the withheld wages. 

9

It appears that the District Court was not directed to this case at trial. 
6

reiterated his argument that Himes controlled, that the District Court erred in granting 

Petitioners’ Motion to Dismiss Feinberg’s MWPCL claim, and further argued that the 

evidence at trial indicated that there was a violation of the MWPCL. Petitioners, in their 

written response, argued that the doctrine of lex loci contractus required that Feinberg’s 

claims be resolved under Virginia law. Petitioners relied on several federal cases for the 

proposition that the MWPCL did not reflect any fundamental public policy of Maryland 

so as to supersede traditional conflict of laws principles. Petitioners argued, in the 

alternative, that if the MWPCL claim was dismissed improperly below, the case should 

be remanded for further fact-finding. Feinberg, in his reply, argued inter alia that lex loci 

contractus did not apply to his wage claims. 

 The Circuit Court reversed the dismissal of Feinberg’s MWPCL claim and 

remanded the matter for further proceedings. That court did not disturb the District 

Court’s factual finding that the employment contract was a “Virginia” contract, but 

reasoned that Himes controlled, suggesting that Feinberg could recover under the 

MWPCL. The Circuit Court declined to determine whether Feinberg was indeed an 

employee of C&A or whether there was a bona fide dispute as to the wages claimed, but 

instead left those issues to the District Court on remand.10 

 

10 At the end of its Order, the Circuit Court directed that the matter be remanded to the 

District Court with instructions to enter a finding that the Defendant was subject to 

liability under the MWPCL, and for further findings in accordance with the court’s 

instructions. Based on the lengthy discussion in the body of the opinion, however, it 

appears that the Circuit Court meant to leave that determination to the District Court, 

after the trial court decided the remaining and dispositive factual questions. 
7

 We granted C&A’s and Cunningham’s Petition for Writ of Certiorari. 437 Md. 

66, 85 A.3d 156 (2014). Petitioners posed the following two questions: 

1. Does application of the Md. choice of law principle of lex 

loci contractus preclude a claim under the Md. Wage 

Payment and Collection Law (MD. Code Ann. Lab. & 

Empl. § 3-501 et seq. (“MWPCL”))? 

2. Does proper application of lex loci contractus preclude 

respondent’s MWPCL claim?

Petitioners urge us to address squarely the interface between the reach of the 

MWPCL and the common law choice of law principle lex loci contractus. They argue 

that choice of law principles require the parties’ dispute over unpaid wages be settled 

under Virginia law in the appropriate forum, rather than under the MWPCL, because the 

contract was a “Virginia” contract. In support of their argument, Petitioners marshal 

several federal cases decided by the U.S. District Court for the District of Maryland and 

the U.S. Court of Appeals for the Fourth Circuit to suggest that disputes in Maryland’s 

courts over employment contracts entered into in other states should be resolved 

according to the law of those other states, unless the other state’s law runs contrary to a 

strong Maryland public policy. Specifically, Petitioners argue that Virginia’s relevant 

statutory law is a substantive part of the parties’ contract, and therefore choice of law 

principles are implicated. Petitioners further assert that the MWPCL does not represent a 

strong public policy of Maryland, and that lex loci contractus should not be abandoned in 

favor of a more “modern” approach. 

Feinberg reiterates the arguments made in the trial courts, and suggests further that 

the Circuit Court declined correctly to apply lex loci contractus to the present litigation 
8

because that doctrine only applies to questions of validity or interpretation of a contract. 

He argues also that, even if lex loci contractus does apply, the MWPCL represents a 

strong public policy which should override the application of that doctrine to the case at 

bar, and this Court should ignore selectively the doctrine in favor of a more modern 

approach favoring his position. 

We hold that the matter before us does not implicate the choice of law doctrine of 

lex loci contractus. In a nifty bit of considered dicta, even if lex loci contractus applied, 

we think that it would not preclude a claim such as Respondent’s under the MWPCL, as 

the MWPCL represents a strong public policy of Maryland. 

II. STANDARD OF REVIEW

 The rules of procedure governing appeals to a circuit court on the record made in 

the District Court “are not as comprehensive as those governing appeals to the Court of 

Special Appeals or to [the Court of Appeals], [but] we have said that the ordinary rules 

governing the scope of appellate review in the latter courts are generally applicable to 

appeals on the record in a circuit court.” Atlantic Mut. Ins. Co. v. Kenney, 323 Md. 116, 

122, 591 A.2d 507, 509–10 (1991) (citing Ryan v. Thurston, 276 Md. 390, 391–93, 347 

A.2d 834, 835–36 (1975)). For purposes of this appeal, the parties have treated the trial 

court’s decision as an “[a]ction [t]ried [w]ithout a [j]ury” pursuant to Maryland Rule 8-

131. Under this rule, the appellate court must “review the case on both the law and the 

evidence. It will not set aside the judgment of the trial court on the evidence unless 

clearly erroneous, and will give due regard to the opportunity of the trial court to judge 

the credibility of witnesses.” Md. Rule 8-131(c). Appellate courts “‘accept and [are] 
9

bound by findings of fact in the lower court unless they are clearly erroneous.’” State 

Sec. Check Cashing, Inc. v. American General Financial Services (DE), 409 Md. 81, 110, 

972 A.2d 882, 899 (2009) (quoting $3,417.46 U.S. Money v. Kinnamon, 326 Md. 141, 

149, 604 A.2d 64, 67 (1992)). We review the trial court’s application of law to the facts 

for legal error, a non-deferential standard. State Sec. Check Cashing, Inc., 409 Md. at 

111, 972 A.2d at 899. We review also without deference the trial court’s pure 

conclusions of law. Id. Under this standard, the lower court’s interpretations of law 

“enjoy no presumption of correctness on review: the appellate court must apply the law 

as it understands it to be.” Rohrbaugh v. Estate of Stern, 305 Md. 443, 447 n.2, 505 A.2d 

113, 115 n.2 (1986). 

III. DISCUSSION

A. The Underlying Cause of Action: 

The Maryland Wage Payment and Collection Law 

 Maryland allows employees to recover wages withheld unlawfully from them by 

their employers under two statutes: the Maryland Wage Payment and Collection Law 

(“MWPCL”) and the Maryland Wage and Hour Law (“MWHL”). Peters v. Early 

Healthcare Giver, Inc., 439 Md. 646, 652–53, 97 A.3d 621, 624–25 (2014). The MWHL 

provides a minimum wage standard, id., and the MWPCL “sets certain standards for the 

frequency and methods of compensation, permissible deductions from pay, and 

notification of employees about the details of pay and changes in the amount or method 

of payment.” Ocean City, Md., Chamber of Commerce, Inc. v. Barufaldi, 434 Md. 381, 

385, 75 A.3d 952, 954 (2013). The MWPCL is a statutory cause of action, the purpose of 
10 

which is “to provide a vehicle for employees to collect, and an incentive for employers to 

pay, back wages.” Battaglia v. Clinical Perfusionists, Inc., 338 Md. 352, 364, 658 A.2d 

680, 686 (1995); see Barufaldi, 434 Md. at 384, 75 A.3d at 954. 

We have had occasion to examine in detail the development of the MWPCL and 

its fee-shifting provision. See Friolo v. Frankel, 373 Md. 501, 515–18, 819 A.2d 354, 

362–64 (2003); Barufaldi, 434 Md. at 391–94, 75 A.3d at 958–59. We note here only a 

few highlights of that history. The precursor to the MWPCL was enacted in 1966, but 

did not provide originally for a direct private action against an employer for a violation of 

its provisions. Marshall v. Safeway, Inc., 437 Md. 542, 559, 88 A.3d 735, 744–45 

(2014). After the elimination of the unit within the office of the Commissioner of Labor 

and Industry responsible for prosecuting such civil actions, the General Assembly added 

a private right of action to “provide a meaningful remedy to the harm flowing from the 

refusal of employers to pay wages lawfully due . . . .” Marshall, 437 Md. at 562, 88 A.3d 

at 746; see Baltimore Harbor Charters, Ltd. v. Ayd, 365 Md. 366, 380–83, 780 A.2d 303, 

311–13 (2001). The private cause of action was also designed to be “an incentive for 

employers to pay[] back wages,” Medex v. McCabe, 372 Md. 28, 39, 811 A.2d 297, 304 

(2002) (quotations omitted), and to “ensure that an employee will have the assistance of 

competent counsel in pursuing what is likely to be a relatively small claim.” Barufaldi, 

434 Md. at 393, 75 A.3d at 959. 
11 

Although the distinction has not been material heretofore in the reasoning in our 

MWPCL cases,11 various federal courts have struggled to identify whether the private 

cause of action under the MWPCL is a contract-based, tort-based, or statute-based cause 

of action. Choice of law questions have been important for federal courts exercising their 

supplemental jurisdiction over various state law claims and wielding choice of law 

doctrines. See Yeibyo v. E-Park of DC, Inc., No. DKC 2007-1919, 2008 WL 182502, at 

*4 (D. Md. Jan. 18, 2008).12 In Yeibyo, attempting to determine whether the MWPCL or 

MWHL applied to the case, the hearing judge endeavored to follow our advice in Erie 

Insurance Exchange v. Heffernan: 

Generally, in a conflict-of-laws situation, a court must 

determine at the outset the nature of the problem presented to 

it for solution, specifically, if it relates to torts, contracts, 

property, or some other field, or to a matter of substance or 

procedure. 

Yeibyo, 2008 WL 182502, at *4–5 (quoting Erie Insurance Exchange v. Heffernan, 399 

Md. 598, 615, 925 A.2d 636, 646 (2007)). The Yeibyo court could not determine 

 

11 In Montrose Christian School Corp. v. Walsh, we noted that “actions for damages 

based on the termination of employment relationships, including those regulated by 

statutes, ordinarily sound in contract and not in tort.” 363 Md. 565, 582–83, 770 A.2d 

111, 121 (2001). In that case and in the cases cited therein for that proposition, we did 

not have cause to discuss either the MWHL or the MWPCL, but focused simply on 

contract-based actions. But see Chappell v. Southern Maryland Hospital, Inc., 320 Md. 

483, 578 A.2d 766 (1990) (holding that a tort claim for abusive discharge was precluded 

by the existence of statutory federal and state remedies for discharge of an employee, but 

not determining whether the MWHL sounded in contract or tort). 

12 We do not mention this case as a precedential or even persuasive authority, but to 

illustrate (as it does so well) the manner in which various federal judges and courts have 

wrestled with the nexus between conflict of laws principles and the MWPCL.
12 

conclusively if it should follow lex loci delicti (if the MWPCL claim sounded in tort) or 

lex loci contractus (if the MWPCL claim sounded in contract) with regard to the 

MWPCL claim, but supposed that MWPCL claims sounded likely in contract as 

“employment relationships are paradigmatically contractual in nature.” Yeibyo, 2008 WL 

182502, at *4; see Blanch v. Chubb & Son, Inc., No. CCB-12-1965, 2014 WL 3421534, 

at *2 n.4 (D. Md. Jul. 10, 2014) (noting that MWPCL claims “must have a contractual 

predicate”).13 The Yeibyo court concluded ultimately that Maryland courts would apply 

likely the law of the District of Columbia in either circumstance based on the facts of the 

case and the MWPCL claim was dismissed ultimately. Yeibyo, 2008 WL 182502, at *5–

6. A federal district court in New York also attempted in Arakelian v. Omnicare, Inc., to 

determine whether MWPCL claims sound in contract or tort. 735 F. Supp. 2d 22, 37 

(S.D.N.Y. 2010). Reviewing Maryland and federal case law, the Arakelian court 

observed that “[i]t is not entirely clear whether claims under Section 3–507.1(b) of the 

[MWPCL] sound in contract or tort,” but concluded, similar to the Yeibyo court, that the 

MWPCL would not apply under New York’s choice of law rules as the forum state. 

Arakelian, 735 F. Supp. 2d at 38. 

 The MWPCL makes available a cause of action to jilted employees. The causes of 

action under the MWPCL, like those available under the Maryland’s Workers’ 

Compensation Act, are remedial in nature, in that both provide a remedy to employees 

who are attempting to collect lost wages. See Johnson v. Mayor and City Council of 

 

13 See supra note 12. 
13 

Baltimore, 430 Md. 368, 377, 61 A.3d 33, 38 (2013) (“‘[W]e recognize that the 

[Workers’ Compensation] Act is a remedial statute.’” (citing Montgomery County v. 

Deibler, 423 Md. 54, 61, 31 A.3d 191, 195 (2011))).14 Although the cause of action 

assumes the existence of some sort of underlying contract, it does not sound per se in 

contract. A MWPCL claim does not require necessarily analysis of the parties’ 

underlying contract, nor does an action under the MWPCL require that a breach of 

contract action be pursued contemporaneously. Instead, a MWPCL action may be an 

independent, stand-alone claim. 

B. The Proper Application of Lex Loci Contractus 

 Maryland has recognized the common law doctrine of lex loci contractus since at 

least 1807. See De Sobry v. De Laistre, 2 H. & J. 191, 191 (Md. 1807). This doctrine 

requires that, when determining the construction, validity, enforceability, or interpretation 

 

14 As noted above, at the beginning of Johnson we observed that the Workers’ 

Compensation Act is remedial in nature. Johnson v. Mayor and City Council of 

Baltimore, 430 Md. 368, 377, 61 A.3d 33, 38 (2013). In that matter, we were asked to 

determine whether an amendment to the Worker’s Compensation Act providing for 

certain benefits to dependents applied retrospectively or prospectively. Johnson, 430 Md. 

at 373, 61 A.3d at 35. As a part of our analysis, we recognized that whether a statute 

applied to future cases was determined by consideration of four basic principles: (1) the 

presumption that statutes operate prospectively, (2) statutes governing procedure or 

remedy will be applied to cases pending when the statute becomes effective, (3) statutes 

are given retroactive effect if that is what the Legislature intended, and (4) despite 

legislative intent, statutes will not be applied retroactively if doing so would impair 

vested rights, deny due process, or violate the prohibition on ex post facto laws. Johnson, 

430 Md. at 381–82, 61 A.3d at 40–41. In light of those questions, we considered whether 

the particular amendment was a procedural or remedial change, or a substantive one, 

Johnson, 430 Md. at 382, 61 A.3d at 41, and decided ultimately that it was a substantive 

change to a remedial statute. Johnson, 430 Md. at 395, 61 A.3d at 48; see Johnson, 430 

Md. at 392 n.16, 61 A.3d at 47 n.16.
14 

of a contract, we apply the law of the jurisdiction where the contract was made. Lewis v. 

Waletzky, 422 Md. 647, 657 n.8, 31 A.3d 123, 129 n.8 (2011) (“When determining which 

law controls the enforceability and construction of a contract, we apply lex loci 

contractus.”); American Motorists Ins. Co. v. ARTRA Group, Inc., 338 Md. 560, 570, 659 

A.2d 1295, 1300 (1995) (“[T]he construction and validity of a contract [must] be 

determined by the law of the place of making of the contract.”); Ward v. Nationwide Mut. 

Auto. Ins. Co., 328 Md. 240, 246–47, 614 A.2d 85, 88 (1992) (“[I]n deciding questions of 

interpretation and enforceability of contract provisions, a Maryland court ordinarily 

should apply the law of the jurisdiction where the contract was made. This choice of law 

principle is referred to as lex loci contractus.”); Allstate Ins. Co. v. Hart, 327 Md. 526, 

529, 611 A.2d 100, 101 (1992); Kramer v. Bally’s Park Place, Inc., 311 Md. 387, 390, 

535 A.2d 466, 467 (1988); Bethlehem Steel Corp. v. G.C. Zarnas and Co., 304 Md. 183, 

188, 498 A.2d 605, 607 (1985). If the contract contains a choice of law provision, we 

apply generally the law of the specified jurisdiction. ARTRA Group, Inc., 338 Md. at 

573, 659 A.2d at 1301. 

We have deployed the doctrine of lex loci contractus when interpreting many 

kinds of contracts, but most frequently where insurance contracts were at issue. In 

ARTRA Group, Inc., we turned to lex loci contractus when considering the validity and 

interpretation of a pollution exclusion clause in an insurance contract. 338 Md. at 565–

66, 659 A.2d at 1297. In Ward, we relied on the doctrine to interpret a personal injury 

protection benefits provision of an automobile insurance contract. 328 Md. at 242, 614 

A.2d at 85. We have referred also to lex loci contractus when determining whether a 
15 

California marriage contract was valid,15 Port v. Cowan, 426 Md. 435, 444–45, 44 A.3d 

970, 975–76 (2012); see also Hanon v. State, 63 Md. 123, 128–29 (1885) (determining 

validity of a marriage contract), and when interpreting the damages clause of a contract. 

Traylor v. Grafton, 273 Md. 649, 651–59, 332 A.2d 651, 654–59 (1975). In each of the 

cases in which we applied lex loci contractus, either the validity or enforceability of a 

contract were challenged,16 or the interpretation or construction of some term or phrase 

was disputed.17 

 

15 In that matter, we used the phrase lex loci celebrationis in applying the law of the place 

where the marriage contract was formed. Port v. Cowan, 426 Md. 435, 444–45, 44 A.3d 

970, 975–76 (2012). Lex loci celebrationis is thought of as a sub-set of the lex loci 

contractus doctrine. Id. 

16 See, e.g., Jackson v. Pasadena Receivables, Inc., 398 Md. 611, 616, 921 A.2d 799, 802 

(2007) (determining validity of an unsigned credit card agreement); Kramer v. Bally’s 

Park Place, Inc., 311 Md. 387, 388, 535 A.2d 466, 466 (1988) (determining 

enforceability of a gambling contract); Bethlehem Steel Corp. v. G.C. Zarnas & Co., 304 

Md. 183, 188, 498 A.2d 605, 607 (1985) (determining validity of an indemnity provision 

in a contract); Union Trust Co. v. Knabe, 122 Md. 584, 89 A. 1106 (1914) (noting a 

question as to the validity of a guaranty); Latrobe v. Winans, 89 Md. 636, 43 A. 829 

(1899) (determining validity of a contract provision allowing for the accrual of interest); 

Stewart v. Garrett, 65 Md. 289, 4 A. 399 (1886) (determining validity of a contract for 

gambling transactions); Baker v. Wainwright, 36 Md. 336, 339 (1886) (noting validity of 

a contract in consideration of statute of frauds defense); Lyons v. Orange, A. & M.R. Co., 

32 Md. 18, 24 (1870) (determining validity of a contract in consideration of statute of 

frauds); Baltimore & O.R. Co. v. Glenn, 28 Md. 287, 321 (1868) (determining validity of 

deed of trust); Smith v. McAtee, 27 Md. 420, 429–30 (1867) (determining validity of a 

devise conferring real property benefit); Harrison v. State to Use of Harrison, 22 Md. 

468, 472, 479 (1864) (determining validity of marriage contract); N. Cent. Co. v. Scholl, 

16 Md. 331, 342–43 (1860) (determining validity and interpretation of an agency contract 

between two railway companies involved in a slave’s escape); Wilson v. Carson, 12 Md. 

54, 54, 70 (1858) (determining validity of deed for transfer of personal property); Green 

v. Trieber, 3 Md. 11, 27–35 (1852) (discussing validity of deed of mortgage); Dakin v. 

Pomeroy, 9 Gill 1, 6 (Md. 1850) (determining validity of assignment to assert cause of 

 (Continued...)
16 

Lex loci contractus is not implicated in all contract-related disputes. In Erie 

Insurance Exchange, where an uninsured/underinsured motorist coverage provision was 

at issue, we applied lex loci delicti, rather than lex loci contractus, because the contract 

referred to substantive tort law by its terms.18

 399 Md. at 619–20, 925 A.2d at 648. In 

Barber v. Eastern Karting Co., the Court of Special Appeals recognized that lex loci 

contractus should be used to determine the meaning and enforceability of a contract, 

while lex loci delicti should be used in determining substantive tort law principles. 108 

Md. App. 659, 672, 673 A.2d 744, 751 (1996). 

In the present case, the Agreement between the parties contains no choice of law 

provision. As the parties did not determine for themselves a jurisdiction’s law to apply, 

 

(...continued)

action); McCall v. Hinkley, 4 Gill 128, 135, 146 (Md. 1846) (determining validity of 

assignment to creditors). 

17 See, e.g., Allstate Ins. Co. v. Hart, 327 Md. 526, 529–30, 611 A.2d 100, 100–01 (1992) 

(interpreting a policy exclusion in an insurance contract); Kronovet v. Lipchin, 288 Md. 

30, 42, 415 A.2d 1096, 1103 (1980) (interpreting a contract to determine whether a 

contract interest rate was usurious); Grain Dealers Mut. Ins. Co. v. Van Buskirk, 241 Md. 

58, 66, 215 A.2d 467, 471 (1965) (determining the proper construction and interpretation 

of an insurance policy exclusion); Eastwood v. Kennedy, 44 Md. 563, 567 (1876) 

(interpreting whether a contract’s interest rate was usurious); Cornish v. Willson, 6 Gill. 

299, 340 (Md. 1848) (interpreting and constructing a will instructing an executor to free 

slaves after the payment of debts); Trasher v. Everhart, 3 G. & J. 234, 234–36 (Md. 

1831) (interpreting a contract to determine if the document was a “single bill” or a 

“promissory note” for the purposes of debt collection).

18 The meaning of the contractual phrase “entitled to recover” was in dispute. We 

decided that this dispute was not one of interpretation, but rather, that the phrase 

“references tort law, [and] the substantive tort law of where the accident occurred applies, 

generally, to the issues of fault and damages.” Erie Ins. Exchange v. Heffernan, 399 Md. 

598, 620, 925 A.2d 636, 649 (2007). 
17 

should there be a dispute over the validity and enforceability of the contract, we would 

apply Virginia law as determined by lex loci contractus. Similarly, if there was a dispute 

over the construction or interpretation of one of the express terms or provisions of the 

contract, we would apply Virginia law under lex loci contractus. In this case, however, 

neither party disputes the validity or enforceability of the contract. The contract contains 

no express terms regarding what Feinberg was to be paid, or for which services. The 

contract is silent largely as to the recovery of unpaid wages, providing only that 

“Contractor invoices will be submitted bi-weekly,” “[t]he Contractor will determine the 

amount of hourly time expended on work assigned to be undertaken,” and “[t]he 

Contractor’s earnings will depend solely on his/her own production.” There is nothing in 

the Agreement relevant expressly to the payment of wages to interpret or enforce. The 

Agreement does not even contain Feinberg’s hourly rate. No party has asked us to 

interpret or construct an express term of the Agreement. The doctrine of lex loci 

contractus, accordingly, does not apply to Feinberg’s unpaid wages claim. 

Petitioners suggest that there are certain implied terms added to the parties’ 

contract that implicate lex loci contractus. Petitioners note that, when constructing 

contracts, relevant statutory requirements and standards are as much a part of a Virginia 

contract as if incorporated expressly by reference therein. They cite Virginia and federal 

cases in support of this assertion.19

 Specifically, they draw our attention to a case from 

 

19 Maryland has a similar doctrine of construction. “[P]arties to a contract are deemed to 

have contracted with knowledge of existing law and that ‘the laws which subsist at the 

time and place of the making of a contract . . . enter into and form a part of it, as if they 

 (Continued...)
18 

the United States Court of Appeals for the Fourth Circuit citing a case of the Virginia 

Supreme Court, both of which suggest that, when constructing insurance contracts, a 

relevant “‘statutory provision is as much a part of the policy as if incorporated therein.’” 

A&E Supply Co. v. Nationwide Mutual Fire Insurance Co., 798 F.2d 669, 677 (4th Cir. 

1986) (citing State Farm Mut. Auto. Ins. Co. v. Duncan, 203 Va. 440, 443, 125 S.E.2d 

154, 157 (1962)); see also Dooley v. Hartford Acc. & Indem. Co., 892 F. Supp. 2d 762, 

764 (D.W. Va. 2012); Buchanan v. Doe, 246 Va. 67, 72, 431 S.E.2d 289, 292 (1993) 

(“Although not expressed in a written contract, a statutory requirement affecting the 

performance of the contract becomes a part of its terms just as if it had been incorporated 

therein.”). Petitioners have not provided us with any cases in which Virginia courts treat 

relevant statutory provisions as implied terms in contracts other than insurance contracts, 

although it appears, based on our research of Virginia case law, that other types of 

contracts are deemed to incorporate existing laws implicitly. See Smith v. 

Commonwealth, 286 Va. 52, 58, 743 S.E.2d 146, 150 (2013) (noting, in a case involving 

a plea agreement, that “contracts are deemed to implicitly incorporate the existing law,” 

but are still subject to the state’s regulatory police power); Wright v. Commonwealth, 49 

Va. App. 58, 62, 636 S.E.2d 489, 491 (2006) (noting, in another case involving a plea 

agreement, “[it is a] basic rule of contract law that the law in force on the date a contract 

is formed determines the rights of its parties.” (internal quotations omitted)); Smith v. 

 

(...continued)

were expressly referred to or incorporated in its terms.’” Post v. Bregman, 349 Md. 142, 

156, 707 A.2d 806, 813 (1998) (quoting Wilmington Trust Co. v. Clark, 289 Md. 313, 

320, 424 A.2d 744, 749 (1981)). 
19 

Smith, 41 Va. App. 742, 751, 589 S.E.2d 439, 443 (2003) (noting, in a case involving a 

spousal support agreement, that the “law effective when the contract is made is as much a 

part of the contract as if incorporated therein” (quoting Paul v. Paul, 214 Va. 651, 653, 

203 S.E.2d 123, 125 (1974))); Haughton v. Lankford, 189 Va. 183, 190, 52 S.E.2d 111, 

114 (1949) (determining that contracts for the sale of oysters “must be considered as 

containing an implied condition that it is subject to the exercise of the State’s regulatory 

police power”). 

Petitioners highlight, in this regard, a portion of the Labor and Employment title of 

the Virginia Code, which addresses the time and medium of payment of wages, the 

withholding of wages, and the proceedings to enforce compliance, among other topics. 

Va. Code Ann. § 40.1-29 (West 2009). The relevant portions of that statute are as 

follows: 

A. 1. All employers operating a business shall establish 

regular pay periods and rates of pay for employees 

except executive personnel. All such employers 

shall pay salaried employees at least once each 

month and employees paid on an hourly rate at least 

once every two weeks or twice in each month . . . . 

Upon termination of employment an employee shall 

be paid all wages or salaries due him for work 

performed prior thereto; such payment shall be made 

on or before the date on which he would have been 

paid for such work had his employment not been 

terminated. 

2. Any such employer who knowingly fails to make 

payment of wages in accordance with this section 

shall be subject to a civil penalty not to exceed 

$1,000 for each violation. . . . 

 * * * 
20 

C. No employer shall withhold any part of the wages or 

salaries of any employee except for payroll, wage or 

withholding taxes or in accordance with law, without the 

written and signed authorization of the employee. An 

employer, upon request of his employee, shall furnish the 

latter a written statement of the gross wages earned by 

the employee during any pay period and the amount and 

purpose of any deductions therefrom. 

D. No employer shall require any employee, except 

executive personnel, to sign any contract or agreement 

which provides for the forfeiture of the employee's wages 

for time worked as a condition of employment or the 

continuance therein, except as otherwise provided by law.

E. An employer who willfully and with intent to defraud 

fails or refuses to pay wages in accordance with this 

section is guilty of a Class 1 misdemeanor if the value of 

the wages earned and not paid by the employer is less 

than $10,000 and is guilty of a Class 6 felony if the value 

of the wages earned and not paid is $10,000 or more or, 

regardless of the value of the wages earned and not paid, 

if the conviction is a second or subsequent conviction 

under this section. . . . 

 * * * 

G. In addition to being subject to any other penalty provided 

by the provisions of this section, any employer who fails 

to make payment of wages in accordance with subsection 

A shall be liable for the payment of all wages due, plus 

interest at an annual rate of eight percent accruing from 

the date the wages were due.

H. Civil penalties owed under this section shall be paid to 

the Commissioner for deposit into the general fund of the 

State Treasurer. . . . 

Petitioners argue that the foregoing statutory provisions should be considered part and 

parcel of the parties’ Agreement as implied terms. The Agreement, in the Petitioners’ 

view, thereby provides an administrative remedy in cases of withheld wages, but no 

private cause of action (other than a breach of contract claim). Construed as such, the 
21 

dispute between the parties is one of construction of a contract’s terms, and thus lex loci 

contractus determines that the law of Virginia should apply, to the exclusion of the 

MWPCL. 

 We are not persuaded by this argument. Rather, we agree with Feinberg that such 

an understanding of lex loci contractus would be an impermissibly broad application of 

the doctrine. We are unaware of a case in which we used lex loci contractus to import 

another forum’s statute into a foreign contract as an implied term and then interpret the 

contract in light of that implied term to the exclusion of our laws and remedies. Instead, 

the doctrine of lex loci contractus should be understood properly to apply only to the 

express terms of a contract, not implied ones. 

Moreover, Petitioners’ argument, that we look to Virginia’s law in determining 

whether wages were withheld improperly and, if so, the proper remedy, would lead 

nonetheless to an outcome unfavorable to Petitioners: the assertedly implied term of 

§ 40.1-29 is essentially one of remedies, but under the choice of law principle lex fori, we 

look to the law of the forum in determining the remedy available to a plaintiff in a 

contract-related action, not lex loci contractus. Eastwood v. Kennedy, 44 Md. 563, 567–

68 (1876); see Mike Smith Pontiac, GMC, Inc. v. Mercedes-Benz of North America, Inc., 

356 Md. 542, 741 A.2d 462 (1999) (applying the rate of post-judgment interest of the lex 

fori (Maryland) instead of that of the judgment-rendering state); see also Traylor v. 

Grafton, 273 Md. 649, 668–69, 332 A.2d 651, 664 (1975) (noting that the answer to the 

question of whether the subject clause should be construed to provide for the payment of 

liquidated damages was the same under both the lex fori and the lex loci contractus). 
22 

Thus even though the Agreement between the parties is a “Virginia” contract, if we 

embraced Petitioners’ choice of law argument, the remedies available to Feinberg are 

determined by the law of Maryland as the lex fori. 

In Himes, 178 Md. App. 504, 943 A.2d 30, the Court of Special Appeals 

considered a very similar factual situation to the present case, holding that Virginia 

employers could be subject to liability under the MWPCL in certain circumstances. The 

employee in Himes brought in Maryland courts a breach of contract claim and a MWPCL 

claim seeking to recover contractually-provided severance pay. Himes, 178 Md. App. at 

512–13, 943 A.2d at 34–35. The employee, who lived in Maryland, worked for a 

Virginia employer and spent most of his work time in that state. Himes, 178 Md. App. at 

513–15, 943 A.2d at 35–36. Anderson, the employee, was tasked with overseeing the 

construction of a building in Virginia, but, as a part of those responsibilities, he was 

required to present a proposal in Baltimore and attend meetings twice a month in 

Baltimore. Id. On two other occasions, the employee was asked to visit a work site in 

Gaithersburg and work on a project in Aberdeen in Maryland. Himes, 178 Md. App. at 

515–16, 943 A.2d at 36–37. Himes, the employer, argued that the MWPCL extended 

liability only to Maryland employers, and, being a Virginia company, it was not liable to 

Anderson. Himes, 178 Md. App. at 532–33, 943 A.2d at 46. In riposte, the employee 

argued for a more expansive understanding of the term “employer.” Himes, 178 Md. 

App. at 534, 943 A.2d at 47.

The intermediate appellate court agreed with the employee. After noting that the 

scope of the term “employer” in the MWPCL depended on the meaning of the related 
23 

phrase “employs an individual in the State,” § 3-501(b), the court turned to the definition 

of “employs.” Himes, 178 Md. App. at 535, 943 A.2d at 48. As defined in § 3-101, the 

term “employ” specifically includes “(i) allowing an individual to work; and 

(ii) instructing an individual to be present at a work site.” The Court of Special Appeals 

concluded that “[t]he plain language of LE section 3-101 covers the situation in which a 

company outside of Maryland directs its employee to go to a work site in Maryland.” 

Himes, 178 Md. App. at 535, 943 A.2d at 48. Because the employee attended meetings 

twice a month in Baltimore, the intermediate appellate court concluded that the Virginia 

employer must confront the employee’s MWPCL claims.20

 Id.

 

20 Petitioners suggest that the facts in Himes are distinguishable clearly from the case at 

bar, noting that (1) the employee in Himes was a Maryland resident (it appears that 

Feinberg lived in the District of Columbia while employed by C&A, although he lived in 

Maryland for a short time immediately after his employment ended), (2) the contract 

between the parties had been sent to the employee’s home in Maryland for acceptance 

(Feinberg and C&A executed likely the Agreement in Virginia), (3) the employee’s 

primary job required him to spend substantial time each month on a regular basis in 

Maryland (Feinberg, although responsible for handling Maryland matters for C&A’s 

clients, was obliged to operate from C&A’s Virginia offices the majority of the time), and 

(4) the disputed pay was connected substantially to his employment activities in 

Maryland (the Agreement in the present case was obscure in this regard). Regarding 

Petitioners’ last point, the disputed pay in Himes did not seem to be connected 

substantially to the employee’s activities in Maryland, but instead was a severance 

package. 

The Court of Special Appeals in Himes gave no weight to the residency of the 

employee nor where the contract had been signed. 178 Md. App. 504, 532–36, 943 A.2d 

30, 46–49 (2008). Indeed, the opinion does not note where the employee signed the 

written employment agreement, but does say that a draft was sent to the employee at his 

home in Annapolis and that he executed it shortly after receiving it. Himes, 178 Md. at 

513, 943 A.2d at 35. Those two facts were relevant only to questions of the Maryland 

court’s personal jurisdiction over the parties. Himes, 178 Md. App. at 524–32, 943 A.2d 

at 41–46. As to the question of work time spent by Anderson in Maryland, the Court of 

Special Appeals did not highlight other points of connection that the employee had with 

 (Continued...)
24 

The Court of Special Appeals did not consider explicitly in Himes lex loci 

contractus, lex fori, or any other choice of law doctrines. Nonetheless, general conflict of 

laws issues were raised. The employer alluded to the Maryland Department of Labor, 

Licensing, and Regulation’s [DLLR]’s pamphlet entitled “Maryland Guide to Wage 

Payment and Employment Standards” in suggesting certain jurisdictional limits on the 

MWPCL. Himes, 178 Md. App. at 533, 943 A.2d at 47. The version of the pamphlet 

contained the following note:

*Note on Jurisdiction.

Claims for unpaid wages must be brought in the state in 

which the work was performed. If work was performed in 

more than one state, claims may generally be filed in the state 

in which the employer maintains its business office—that is, 

the office where the employee reports to or was hired out 

of.[21]

Id. Based on the language of the pamphlet and Himes’s reading of the term “employer,” 

the employer argued that suit should have been filed in Virginia under § 40.1-29 instead 

 

(...continued)

Maryland, including the projects that he worked on in Gaithersburg and Aberdeen. The 

intermediate appellate court thought apparently that the Baltimore meetings alone were 

enough to warrant liability under the MWPCL. See Himes, 178 Md. App. at 535, 943 

A.2d at 48 (“Anderson had to attend meetings twice a month at Lockheed Martin’s 

Baltimore office, in the State of Maryland. On that evidence alone, Himes was an 

‘employer’ under the MWPCL, and therefore was subject to liability for violating it.”). 

Finally, the parties disputed the severance package due the employee under the 

employment contract, which did not appear to be connected specifically to the 

employee’s Maryland work, as opposed to work performed in Virginia or other states.

Himes, 178 Md. App. at 513, 943 A.2d at 35. 

21 A pamphlet by the same name and containing the same information is available 

currently on the DLLR’s website. Maryland Department of Labor, Licensing and 

Regulation, http://www.dllr.state.md.us/labor/wagepay/ (last visited Jan. 23, 2014). 
25 

of in Maryland under the MWPCL. Id. The intermediate appellate court responded to 

that argument:

The DLLR’s “Note on Jurisdiction,” stating that when work 

has been performed in more than one state “claims may 

generally be filed in the state in which the employer 

maintains its business office[,]” cannot alter the plain 

meaning of the language of the controlling statute or its 

application to the evidence in this case. When statutory 

language is unambiguous, we will not defer to an agency’s 

differing interpretation of it. Moreover, the wording of the 

“Note on Jurisdiction” is not mandatory and does not wholly 

support [the employer’s] position. The note states only that, 

when an individual has performed work in more than one 

state, his claim for unpaid wages “may generally be filed in 

the state where the employer maintains its business office.” 

(Emphasis added). It does not require that such a claim be 

filed in the state where the employer keeps a business office. 

Thus, even under the DLLR’s interpretation of the MWPCL, 

[the employee] was not prohibited from filing his claim for 

unpaid wages in Maryland.[22]

Himes, 178 Md. App. at 535–36, 943 A.2d at 48 (emphasis in original) (citations 

omitted). The Court of Special Appeals affirmed ultimately the trial court’s award to the 

employee of treble damages, attorney’s fees, and costs. Himes, 178 Md. App. at 543, 943 

A.2d at 52–53. The employer petitioned for a writ of certiorari, which we denied. Himes

v. Anderson, 405 Md. 291, 950 A.2d 829 (2008). 

Based on our analysis of the doctrine of lex loci contractus, we come to a 

conclusion shared by the Court of Special Appeals: employees working for employers 

located in Virginia are not limited to the remedies available under Virginia’s wage 

 

22 The intermediate appellate court also noted, in a footnote, that the pamphlet declares 

that it “should not be cited as legal authority.” 
26 

payment laws, but may, in certain circumstances, be answerable to claims under the 

MWPCL in Maryland courts.23

C. The “Strong Public Policy” Exception 

to Lex Loci Contractus

 Given our holding, we need not engage with Feinberg’s fallback argument that the 

MWPCL falls within the public policy exception to the applicability of lex loci 

contractus. Nonetheless, we are moved to comment (at some length) on his contention 

because of how federal courts have examined and reached conclusions regarding this 

quintessentially state law question. Even if we were prepared to hold that lex loci 

contractus applied to this dispute in the manner in which Petitioners would have us apply 

the doctrine, we would be inclined not to foreclose the possibility of Feinberg recovering 

under the MWPCL in Maryland’s courts for public policy reasons. 

We have long recognized an exception to the application of lex loci contractus: we 

refuse to apply the doctrine when doing so would be “contrary to a strong public policy 

of this State.” ARTRA Group, Inc., 338 Md. at 573, 659 A.2d at 1301; see Laboratory 

 

23 We were asked to abandon the doctrine of lex loci contractus in American Motorists 

Ins. Co. v. ARTRA Group, Inc., 338 Md. 560, 659 A.2d 1295 (1995), but we declined to 

do so then, and we see no need in the present case to abandon it now. In that case, we 

recognized that lex loci contractus has suffered a “significant modern erosion,” and that, 

in the proper case, we might “have to reevaluate what the best choice-of-law rules ought 

to be to achieve simplicity, predictability, and uniformity.” ARTRA Group, Inc., 338 Md. 

at 581, 659 A.2d at 1305. This is not the proper case. We are satisfied currently with the 

level of simplicity, predictability, and uniformity provided by the doctrine. 

More recently, in Erie Insurance Exchange, we were asked to abandon lex loci 

contractus’ cousin, lex loci delicti, which requires essentially that we apply the law of the 

state in which a tort occurred, with some exceptions. 399 Md. at 624, 925 A.2d at 651. 

We declined to do so. Erie Ins. Exchange, 399 Md. at 625, 925 A.2d at 651. 
27 

Corp. of America v. Hood, 395 Md. 608, 621, 911 A.2d 841, 848 (2006) (“We have just 

as consistently held, however, that the lex loci contractus principle is not inflexible and 

that it ‘does not apply to a contract provision which is against Maryland public policy.’” 

(citing Bethlehem Steel, 304 Md. at 188, 498 A.2d at 608)). As long ago as 1831 our 

predecessors determined that “[i]t is a universal principle, governing the tribunals of all 

civilized nations, that the lex loci contractus controls the nature, construction, and 

validity of the contract. The exceptions are, where it would be dangerous, against public 

policy, or of immoral tendency, to enforce that construction here.” Trasher v. Everhart, 3 

G. & J. 234, 234 (1831). 

In order for Maryland’s public policy to override the doctrine, it “must be very 

strong and not merely a situation in which Maryland law is different from the law of 

another jurisdiction.” Hart, 327 Md. at 530, 611 A.2d at 102 (citing Kramer, 311 Md. at 

390, 535 A.2d at 467); see Ward, 328 Md. at 247, 614 A.2d at 88 (“The rule of lex loci 

contractus is subject to a limited exception where a contractual provision or the foreign 

law is contrary to a very strong Maryland public policy.”); Jacobs v. Adams, 66 Md. App. 

779, 793, 505 A.2d 930, 937 (1986) (“We must caution that ‘public policy’ is not a term 

to be bandied about lightly in every conflict of laws case. One should be well convinced 

of the weight of a supposed policy before advancing it against bedrock legal principles.”). 

The requirement of showing that the public policy is sufficiently strong has been 

described as a “heavy burden” on the party that urges rejection of the application of the 

otherwise applicable foreign law. Hart, 327 Md. at 530, 611 A.2d at 102 (quotations 

omitted). 
28 

In Bethlehem Steel, we considered whether a provision of a construction contract 

executed in Pennsylvania was unenforceable in Maryland’s courts as contrary to 

Maryland public policy. 304 Md. 183, 498 A.2d 605. The contract between the 

antagonists provided that the contractor would hold the steel plant owner harmless from 

any injuries suffered by the contractor or any subcontractors. Bethlehem Steel, 304 Md. 

at 185–86, 498 A.2d at 606. After an employee was electrocuted at the plant, the injured 

employee filed suit against the steel plant owner in Maryland. The plant owner filed a 

declaratory judgment action against Zarnas & Co., a painting company, seeking to 

enforce the indemnity provision. Bethlehem Steel, 304 Md. at 186, 498 A.2d at 606. The 

Maryland Code, in § 5-305 of the Courts and Judicial Proceedings Article, Md. Code 

Ann., Cts. & Jud. Proc. (1974, 1984 Repl. Vol.),24 addressed clauses in construction 

contracts providing for indemnity against the results of one party’s sole negligence. The 

statute “unequivocally told the Maryland judiciary that such a clause ‘is void and 

unenforceable’ . . . [and] in the same sentence of the statute, the General Assembly 

expressly stated that such an indemnity provision ‘is against public policy.’” Bethlehem 

Steel, 304 Md. at 190, 498 A.2d at 608 (citations omitted). We held there that the 

Legislature’s “explicit determination of public policy is sufficient . . . to override the lex 

loci contractus principle.” Bethlehem Steel, 304 Md. at 190, 498 A.2d at 608. 

In National Glass, Inc. v. J.C. Penney Properties, Inc., a subcontractor sought, 

after a contractual breach, to establish a mechanics’ lien for work and materials furnished 

 

24 This statute has been relocated since to Maryland Code (1974, 2013 Repl. Vol.), Cts. & 

Jud. Proc. § 5-401. 
29 

at a Maryland construction site. 336 Md. 606, 608, 650 A.2d 246, 247 (1994). The 

contract contained a choice of law provision opting for Pennsylvania law and also waived 

the right to a mechanics’ lien, which clause was permitted under the law of that state. Id. 

We noted first that Maryland’s “strong public policy” exception analysis was the same in 

lex loci contractus cases where the parties included choice of law clauses in their 

contract. National Glass, 336 Md. at 613 n.4, 650 A.2d at 250 n.4. We turned to the 

language of the specific statute to determine whether our anti-waiver provision evidenced 

strong public policy, and held that it did. National Glass, 336 Md. at 614–15, 650 A.2d 

at 250. The mechanic’s lien law, as it existed at the time in § 9-113 of the Real Property 

Article, contained a provision that stated specifically that contractual provisions made in 

violation of the statute were “void as against public policy of this State.”25 National 

Glass, 336 Md. at 613–15, 650 A.2d at 250 (citing Maryland Code (1974, 1988 Repl. 

Vol.), Real Property Art., §§ 9-101 et seq.). Such explicit language “provides clear 

legislative indication that any provision attempting to waive the right to a mechanic’s lien 

is void” and constituted “fundamental [public] policy of Maryland.” National Glass, 336 

Md. at 614–15, 650 A.2d at 250. 

 

25 The statute was amended subsequent to the work being performed, but prior to the 

filing of the subcontractor’s suit. Previously, the statute read, “[a]ny waiver provision of 

a contract made in violation of this section is void,” National Glass, 336 Md. at 614, 650 

A.2d at 250, but was amended to state: “[a]ny provision of a contract made in violation of 

this section is void as against the public policy of this State.” Id. We noted that the 

amendment was “not a substantive change, but merely a clarification” as to why a 

contract provision waiving the right to claim a mechanic’s lien is void and unenforceable. 

National Glass, 336 Md. at 614–15, 650 A.2d at 250. 
30 

The same strong public policy analysis occurs in discussions of lex loci delicti. In 

Erie Insurance Exchange, the United States Court of Appeals for the Fourth Circuit 

certified two questions of law to us arising from a breach of contract action in which two 

insured individuals sought damages against their uninsured/underinsured motorist 

insurer. Erie Insurance Exchange, 399 Md. at 603–04, 925 A.2d at 639. The Erie Court 

was asked to determine whether a statutory non-economic damages “cap” represented 

strong public policy of Maryland. Id. We determined that Maryland’s public policy 

reflected in the non-economic damages “cap” was not so strong as to override lex loci 

delicti. Erie Insurance Exchange, 399 Md. at 628, 925 A.2d at 653. Because the 

Maryland General Assembly had not addressed specifically the issue of the applicability 

of the non-economic damages “cap” to claims for uninsured/underinsured motorist 

damages, and had not given “an unequivocal directive to the Maryland judiciary to apply 

the cap in these cases,” we determined that lex loci delicti applied and that Maryland’s 

public policy as reflected in the statutory “cap” was not “sufficiently strong to warrant 

overriding the rule of lex loci delicti.” Erie Insurance Exchange, 399 Md. at 633–34, 925 

A.2d at 657; see Black v. Leatherwood Motor Coach Corp., 92 Md. App. 27, 43, 606 

A.2d 295, 302–03 (1992) (holding that the existence of a “cap” on non-economic 

damages was not of sufficient importance to override the principle of lex loci delicti).

Anti-waiver provisions and explicit legislative language are not required always in 

order to reach a conclusion that a Maryland Code provision represents strong public 

policy. On occasion, we have given some weight to evolving public policy. In Hood, the 

United States District Court for the District of Maryland certified three questions of law 
31 

to us, arising from a wrongful birth action by two Maryland residents against two North 

Carolina corporations. Hood, 395 Md. at 610, 911 A.2d at 842. Maryland recognized 

wrongful birth actions, but North Carolina did not. Hood, 395 Md. at 611, 911 A.2d at 

842–43. The District Court needed to know ultimately whether to apply the substantive 

law of Maryland or of North Carolina. Id. We extrapolated from a Maryland statutory 

prohibition on interfering with a woman’s right to terminate her pregnancy that another 

state’s failure to recognize wrongful birth actions was contrary to the strong public policy 

of Maryland. Hood, 395 Md. at 624–25, 911 A.2d at 850–51. The court determined that 

the right to seek damages in a wrongful birth action represented “clear, strong, and 

important Maryland public policy,” as represented in Maryland Code § 20-209(b) of the 

Heath General Article, which precluded the State from “interfering with the decision of a 

woman to terminate her pregnancy at any time . . . if the fetus is affected by genetic 

defect or serious deformity or abnormality.” Id.

In Kramer v. Bally’s Park Place, Inc., we considered whether a New Jersey 

gambling contract violated Maryland public policy such that a Maryland court should 

refuse to apply New Jersey law. 311 Md. 387, 535 A.2d 466. The petitioner wrote a 

check for $5,000, payable to Bally’s Park Place, as payment of a gambling debt, but 

argued before us that gambling debts were not recognized as legal or valid in Maryland. 

Kramer, 311 Md. at 388–89, 535 A.2d at 466–67. The development and advance of 

gambling laws were in a state of flux, as some forms of gambling were becoming 

legalized and, accordingly, we determined that prohibitions on gambling in Maryland did 

not represent our state’s strong public policy. Kramer, 311 Md. at 396, 535 A.2d at 470. 
32 

We drew similar inferences, based on the changes in laws governing terms of credit card 

agreements, in Jackson v. Pasadena Receivables, Inc., 398 Md. 611, 624–27, 921 A.2d 

799, 806–08 (2007). In that case, we reviewed the history of Maryland’s laws regarding 

bank-issued credit cards, and held that, based on the tightening of some requirements and 

the loosening of others, and the absence of any clear legislative intent indicating strong 

public policy, Maryland’s laws regarding signatures on credit card agreements did not 

constitute “fundamental” public policy. Id.

The Court of Special Appeals has looked also to changing societal mores in 

determining whether a strong public policy is implicated by legislative enactment. In 

Linton v. Linton, the intermediate appellate court engaged in an analysis to determine 

whether public policy would be violated by Maryland courts entertaining an inter-spousal 

tort action prohibited here at the time by the doctrine of inter-spousal immunity (but 

allowable in Virginia) pursuant to lex loci delicti. 46 Md. App. 660, 663, 420 A.2d 1249, 

1251 (1980). Referencing changing perspectives in society on permitting the bringing of 

suits regarding inter-spousal torts, the court held that the public policy reflected in 

Maryland’s inter-spousal immunity doctrine was not sufficiently strong to decline to 

entertain the suit. Linton, 46 Md. App. at 663, 667, 420 A.2d at 1251, 1253. The Court 

of Special Appeals revisited this question in the context of interfamilial tort suits, 

reiterating the reasoning of Linton in Rhee v. Combined Enterprises, Inc. 74 Md. App. 

214, 223–25, 536 A.2d 1197, 1201–02 (1988). 

Petitioners’ brought to our attention several cases in which federal judges, 

applying conflict of law principles, found that a private right of action under the MWPCL 
33 

was not available to employees claiming unpaid wages under contracts entered outside of 

Maryland. Each of these cases involved contractual choice of law clauses,26 and in each, 

the sitting judge considered whether the MWPCL reflected strong public policy of 

Maryland, and concluded ultimately that it did not. 

In Taylor v. Lotus Development Corp., the hearing judge determined that a choice 

of law provision in the parties’ employment contract, electing to be governed under 

Massachusetts law, was enforceable to the exclusion of the MWPCL, because the 

MWPCL did not constitute public policy strong enough to overcome the parties’ choice 

of law provision. Taylor v. Lotus Dev. Corp., 906 F. Supp. 290, 297–98 (D. Md. 1995). 

That court was of the opinion that, under Maryland law, the “mere presence of dissimilar 

law is insufficient to render a choice-of-law provision void; rather, [the other state’s] law 

must run contrary to a strong Maryland public policy to be unenforceable.” Taylor, 906 

F. Supp. at 298 (emphasis added). The Taylor court determined that the MWPCL did not 

represent Maryland’s “fundamental public policy” because the statute did not 

“unambiguously express[] that [its] provisions represented fundamental public policy of 

the state [or that] any purported waiver of the provisions contained in those statutes was 

expressly unenforceable.” Id. The MWPCL, “simply by its existence” alone, did not 

represent a fundamental policy of Maryland. Id. 

 

26 See, e.g., Kunda v. C.R. Bard Inc., 671 F.3d 464 (4th Cir. 2011) (choosing New Jersey 

law); Arakelian v. Omnicare, Inc., 735 F. Supp. 2d 22 (S.D.N.Y. 2010) (choosing New 

York law); Taylor v. Lotus Development Corp., 906 F. Supp. 290 (D. Md. 1995) 

(choosing Massachusetts law); Blanch v. Chubb & Son, Inc., No. CCB-12-1965, 2014 

WL 3421534 (D. Md. Jul. 10, 2014) (choosing New Jersey law). 
34 

Roughly fifteen years later, in Sedghi v. Patchlink Corp., another judge in the 

federal District Court of Maryland concluded that the MWPCL did not embody strong 

public policy, and accordingly enforced a choice of law clause opting to apply Arizona 

law. No. JFM-07-1636, 2010 WL 3895472, at *4 (D. Md. Sept. 30, 2010).27

 That court 

relied on Taylor for the proposition that “the MWPCL did not represent fundamental 

public policy.” Id. Sedghi was reversed in part ultimately, but on other grounds. Sedghi 

v. Patchlink Corp., 440 Fed. Appx. 165 (4th Cir. 2011). 

In Kunda v. C.R. Bard, Inc. the United States Court of Appeals for the Fourth 

Circuit held that the MWPCL did not express fundamental Maryland policy sufficiently 

enough to trump the parties’ New Jersey choice of law contract provision. 671 F.3d 464, 

466 (4th Cir. 2011). That court determined that the MWPCL contained no express 

language of legislative intent nor any anti-waiver provisions. Kunda, 671 F.3d at 468. 

Immediately prior to the filing of the opinion in Kunda, however, House Bill 298 (2011 

session), enacted by the Maryland Legislature, took effect and changed the landscape of 

the MWPCL by adding an anti-waiver provision of a sort to the MWPCL. See infra Slip 

Op. 35–39. Perhaps the Fourth Circuit was unaware of this change; perhaps they 

determined not to assign to the change much weight.28 That court reasoned that, as (at 

 

27 See supra note 12. 

28 The Fourth Circuit suggested:

[T]he MWPCL contains no express language of legislative 

intent that that law is a fundamental Maryland public policy. 

Furthermore, the MWPCL contains no language indicating 

 (Continued...)
35 

that time) forty-two other states had enacted similar wage payment laws, the MWPCL 

likely was not fundamental public policy, as “[t]he availability of comparable, albeit 

different, legislation in different states demonstrates that protection under the MWPCL is 

unnecessary where there is a substitute, as there is here.” Kunda, 671 F.3d at 469. We 

do not deign to speak for our fellow states as to why they may have enacted similar wage 

payment laws. We can say that, in Maryland, the protections afforded the timely 

payment of wages owed are quite important, and many of our laws dealing with the 

subject reflect our strong public policies in that regard. 

We encourage a future Maryland Court to hold (in light of the considered dicta 

expressed here) that the MWPCL represents strong Maryland public policy. The antiwaiver provision and other clear indicators of legislative intent point to such a 

conclusion. “[D]eclaration of the public policy of the State is normally the function of 

the legislative branch of government; in discerning that policy, courts consider, as a 

primary source, statutory . . . provisions.” Jones v. Malinowski, 299 Md. 257, 273 n.4, 

473 A.2d 429, 437 n.4 (1984). An anti-waiver provision was added to the MWPCL by 

House Bill 298 of the 2011 session as § 3-502(f), which provides that “[a]n agreement to 

work for less than the wage required under this subtitle is void.” Md. Code (1999, 2008 

 

(...continued)

that any contractual terms contrary to its provisions are void 

and unenforceable, or that any provision of the MWPCL may 

not be waived by agreement. Thus, we find that the MWPCL 

is not a fundamental Maryland public policy. 

Kunda, 671 F.3d at 468. 
36 

Repl. Vol., 2014 Cum. Supp.), Labor & Employment Art., § 3-502(f). The subtitle 

referenced by § 3-502(f) is Subtitle 5 (Wage Payment and Collection) of Title 3 

(Employment Standards and Conditions). The “wage[s] required” means “all 

compensation that is due to an employee for employment,” including bonuses, 

commissions, fringe benefits, overtime benefits, and other forms of remuneration 

promised for services. § 3-501(c). Under § 3-502(f), parties cannot make agreements in 

which they agree to work for less than the wages owed to them. This anti-waiver 

provision is similar to the one in National Glass, where we held that an anti-waiver 

provision signaled the existence of strong public policy.29

 

Before the anti-waiver provision was added, our case law suggested that 

employees could not contract away their right to be compensated for their work. In 

Medex, we held that “[c]ontractual language between the parties cannot be used to 

eliminate the requirement and public policy that employees have a right to be 

compensated for their efforts.” Medex, 372 Md. at 39, 811 A.2d at 304. We did not have 

occasion in that case to discuss whether this reflected the strong public policy of our 

State, but we agreed with the Court of Special Appeals that “a contract conflicting with 

public policy set forth in a statute is invalid to the extent of the conflict between the 

 

29 In Falls v. 1CI, Inc., the Court of Special Appeals determined that employees could 

contract to resolve all employment-related claims, including MWPCL claims, in 

arbitration. 208 Md. App. 643, 660, 57 A.3d 521, 531 (2012). Considering the Federal 

Arbitration Act and the Maryland Uniform Arbitration Act, the intermediate appellate 

court concluded that it should construe liberally contracts in favor of arbitration. Falls, 

208 Md. App. at 657–60, 57 A.3d at 529–31. We decline to comment at this time on the 

impact of arbitration clauses on MWPCL claims. 
37 

contract and that policy.” Id. (citing McCabe v. Medex, 141 Md. App. 558, 566, 786 

A.2d 57, 62 (2001)). 

Despite the language in Medex suggesting the importance of the policy embodied 

in the MWPCL, federal courts continue, it seems, to hold that the MWPCL does not 

apply when parties choose another state’s law in a choice of law clause. See, e.g., Kunda, 

671 F.3d at 468 (“[T]he Maryland Court of Appeals’ decision in Medex v. McCabe fails 

to show that the MWPCL is a fundamental Maryland public policy . . . .”); Lantry v. 

Pitney Bowes Inc., No. 08:08-CV-1273-AW, 2011 WL 3843693, at *3 (D. Md. Aug. 29, 

2011)30; Sedghi, 2010 WL 3895472, at *4 (concluding that Medex was not on point 

because “the Court of Appeals was considering only whether the provision of a Maryland 

contract violated Maryland public policy, not whether the [MWPCL] incorporates a 

strong public policy”); Yeibyo, 2008 WL 182502, at *5–6. But see Butler v. VisionAIR, 

Inc., 385 F. Supp. 2d 549, 558 (D. Md. 2005) (denying a motion for summary judgment 

in light of a factual question as to the nature of an employee’s commissions, and noting 

that an employment agreement clause “may contravene Maryland’s public policy as 

embodied in the MWPC[L]”); Adams v. Wells Fargo Advisors, LLC, No. ELH-12-2130, 

2014 WL 2124447, at *26 (D. Md. May 21, 2014) (noting, in dicta, that, “[c]ritically, an 

employer and employee cannot contract around L.E. § 3-505, because ‘a contract 

conflicting with public policy set forth in a statute is invalid to the extent of the conflict 

 

30 See supra note 12. 
38 

between the contract and that policy,’” but resolving a motion for summary judgment 

against an employee on other grounds (citing Medex, 372 Md. at 39, 811 A.2d at 304)).31 

The legislative history underlying the addition of the anti-waiver provision in 2011 

indicates that its inclusion was supported by public policy considerations. The antiwaiver provision of the MWPCL originated as House Bill 298 and was introduced in the 

Maryland General Assembly in 2011. H.D. 298, 2011 Leg., 428th Sess. (Md. 2011). The 

Fiscal and Policy Note of the Bill suggested that it had no effect except to “clarif[y] 

current law.” Dep’t Legis. Serv., Fiscal & Pol’y Note, 2011-298, at 1 (Md. 2011). The 

term “clarifying” “sometimes can be helpful in signaling legislative intent.” Johnson, 

430 Md. at 389, 61 A.3d at 45. The term “can mean . . . that this is what lawmakers 

viewed as the state of the law all along.” Johnson, 430 Md. at 389, 61 A.3d at 45.32

 

While amendments are not controlling as to the meaning of prior iteration of the same 

statutory scheme, “‘nevertheless, subsequent legislation can be considered helpful to 

determine legislative intent.’” Johnson, 430 Md. at 389, 61 A.3d at 45 (quoting Chesek 

v. Jones, 406 Md. 446, 462, 959 A.2d 795, 804 (2008)). 

The testimony of one of the Bill’s sponsors, Delegate Joseline A. Peña-Melnyk, 

before the Senate Finance Committee, is particularly informative. She explained that 

employers doing business in Maryland were forcing employees to waive their MWPCL 

 

31 See supra note 12. 

32 The word can also refer to “an oversight that lawmakers subsequently decided to 

correct by ‘clarifying’ the law,” Johnson, 430 Md. at 390, 61 A.3d at 45, or “a simple 

change in style or language.” Id. n.15. 
39 

rights, either explicitly or by “applying the laws of other states to their employment 

relationship that provide fewer protections than the MWPCL.” Wage Payment and 

Collection: Void Agreements: Hearing on H.B. 298 Before the H.D. Economic Matters 

Committee, 428th Sess. 1 (2011) (statement of Del. Joseline A. Peña-Melnyk). She 

named Sedghi33 in her testimony, recounting that court’s determination that the MWPCL 

did not represent “important ‘public policy.’” She suggested that “[b]y placing an 

express prohibition against contracting for less than the wages owed, we can clarify for 

the courts that the MWPCL is important public policy and remove any question that such 

agreements should be voided.” Id.; see Johnson, 430 Md. at 388, 61 A.3d at 44–45 

(recognizing that the existence of a copy of a decision in a bill file along with numerous 

references to a decision of the Court of Appels in the legislative history indicated that an 

amendment was made in response to that decision). She noted also that the same 

language existed already in § 3-405 of the Maryland Wage and Hour Law and should be 

interpreted the same way.34

 Id. She iterated the same testimony regarding H.B. 298 

before the House Economic Matters Committee a month earlier. Wage Payment and 

Collection: Void Agreements: Hearing on H.B. 298 Before the S. Finance Committee, 

428th Sess. 1 (2011) (statement of Del. Joseline A. Peña-Melnyk). The bill passed in the 

House and Senate and became effective on 1 October 2011. 

 

33 She identified mistakenly the case as “Sedgwick v. Patchlink Corp.”

34 We are unaware of any court, state or federal, that has had occasion to interpret this 

statute. 
40 

The interpretation of the MWPCL requires a certain appreciation of other 

provisions of Maryland’s overall labor and employment statutory scheme: 

When the statute to be interpreted is part of a statutory 

scheme, it must be interpreted in that context. That means 

that, when interpreting any statute, the statute as a whole must 

be construed, interpreting each provision of the statute in the 

context of the entire statutory scheme. Thus, statutes on the 

same subject are to be read together and harmonized to the 

extent possible . . . . 

Whiting-Turner Contracting Co. v. Fitzpatrick, 366 Md. 295, 302–03, 783 A.2d 667, 671 

(2001) (citations omitted). Workers’ compensation statutes, although sufficiently 

different from contract and tort principles so as to be considered separately, nonetheless 

have some affinity to both. See Hood, 395 Md. at 621, 911 A.2d at 848. In the context of 

workers’ compensation statutes, we have at times applied a public policy exception. See 

Hutzell v. Boyer, 252 Md. 227, 249 A.2d 449 (1969); Hauch v. Connor, 295 Md. 120, 

453 A.2d 1207 (1983). In Hutzell, we rejected the application of Virginia law which 

otherwise would have applied because Maryland had “a genuine interest in the welfare of 

a person injured within its borders” and the “social and economic problems following 

[the injury] . . . are properly matters of public concern.” Hutzell, 252 Md. at 233, 249 

A.2d at 452. More recent workers’ compensation cases reflect a pointed willingness by

Maryland to allow itself to be a forum where the rights of employees may be vindicated 

to the fullest extent possible under our workers’ compensation statutory scheme. For 

example, in Pro-Football, Inc. v. McCants, a player on the roster of the Washington NFL 

football team brought in Maryland a workers’ compensation claim for game injuries 

sustained in various forums—some in Maryland, and some out of state. 428 Md. 270, 
41 

275–76, 51 A.3d 586, 589–90 (2012). McCants’ employment contract contained a 

forum-selection clause choosing Virginia law, but we allowed McCants nonetheless to 

maintain a claim in Maryland for the injuries sustained here and out-of-state. McCants, 

428 Md. at 288, 51 A.3d at 596–97; see Pro-Football, Inc. v. Tupa, 197 Md. App. 463, 

471, 474, 14 A.3d 678, 682, 684 (2011), aff’d, 428 Md. 198, 51 A.3d 544 (2012) (holding 

that a player on the roster of the Washington NFL football team was a “covered 

employee” under § 9-203(a) of the workers’ compensation statute despite working 

“intermittently” in Maryland playing games at FedEx Field and “primarily” in Virginia 

practicing). 

Although significant differences exist between our workers’ compensation 

statutory scheme and the MWPCL, we refer to these cases to make a point that Maryland 

is willing generally to allow itself to be used as a forum by workers seeking recovery of 

their wage claims. We offer no prediction as to the ultimate success or failure of 

Feinberg’s claim, recognizing that additional facts must be found on remand before its 

merits may be adjudicated finally. The mere fact that Feinberg and Petitioners entered 

into a “Virginia” employment contract does not prohibit, however, maintenance of 

Feinberg’s claims under the MWPCL. 

JUDGMENT OF THE CIRCUIT COURT 

FOR MONTGOMERY COUNTY 

AFFIRMED; CASE REMANDED TO 

THAT COURT WITH DIRECTIONS TO 

VACATE THE JUDGMENT OF THE 

DISTRICT COURT OF MARYLAND, 

SITTING IN MONTGOMERY COUNTY, 
42 

AND TO REMAND THE CASE TO THE 

DISTRICT COURT FOR FURTHER 

PROCEEDINGS NOT INCONSISTENT 

WITH THIS OPINION; COSTS IN THIS 

COURT AND THE CIRCUIT COURT TO 

BE PAID BY PETITIONERS. 
Circuit Court for Montgomery County 

Case No.: 8778 D 

Argued: November 12, 2014 

IN THE COURT OF APPEALS

OF MARYLAND 

 

No. 27

September Term, 2014 

 

JOSEPH F. CUNNINGHAM, ET AL. 

v. 

MATTHEW FEINBERG 

 

Barbera, C.J. 

Harrell

Battaglia 

Greene

Adkins

McDonald

Watts, 

JJ.

 

Concurring Opinion by Adkins, J. 

 

Filed: January 27, 2015 
Most respectfully, I join the judgment, but not the Majority’s opinion. The Majority 

chooses to rest its opinion on the principle that, without a choice of law provision in the 

statute, “the choice of law doctrine lex loci contractus is not implicated” because this claim 

does “not involve the validity, enforceability, interpretation, or construction of the 

employment contract.” Maj. Slip Op. at 1. I think our jurisprudence would be better served 

by deciding this case on the more solid ground—approved by the Majority in dictum—that 

the MWPCL falls within the public policy exception to the applicability of lex loci 

contractus. 

The public policy exception is soundly supported, first by the remedial terms of the 

MWPCL itself—including treble damages, recovery of attorneys’ fees, and an anti-waiver 

provision—and second, by our expansive interpretation of the statute. See Peters v. Early 

Healthcare Giver, Inc., 439 Md. 646, 654–55, 97 A.3d 621, 626 (2014) (concluding that 

employees have a right to bring a private cause of action under the MWPCL to recover 

unlawfully withheld overtime wages); Marshall v. Safeway Inc., 437 Md. 542, 561–62, 88 

A.3d 735, 746 (2014) (concluding that employees have a right to bring a private cause of 

action under the MWPCL to recover unlawfully withheld wages that result from 

miscalculating the amount of wages exempt from garnishment); Ocean City, Md., Chamber 

of Commerce, Inc. v. Barufaldi, 434 Md. 381, 393–94, 75 A.3d 952, 959 (2013) (stating 

that courts should exercise their discretion liberally in favor of awarding employees

reasonable attorneys’ fees under the MWPCL); Medex v. McCabe, 372 Md. 28, 37, 811 

A.2d 297, 302–03 (2002) (concluding that incentive fees are “wages” under the MWPCL). 
2

The MWPCL covers “any person who employs an individual in the State.” Md. 

Code (1991, 2008 Repl. Vol.), § 3-501 of the Labor & Employment Article. The statute’s 

broad terms leave no doubt that the General Assembly enacted this law with serious 

purpose that amounts to a firm statement of public policy. This case presents a perfect 

opportunity to make a clear ruling that an employee who lives and works in Maryland is 

entitled to the remedial benefits of the MWPCL, notwithstanding the doctrine of lex loci 

contractus. I would decide this case on that ground.