A Non-COVID 19 Blogpost

Garrett Wozniak
Garrett Wozniak

Most attention in recent days, justifiably so, has been on responses to the coronavirus.  While employers are navigating the business, health, and safety issues raised by the pandemic, they should not lose sight of changes to Maryland’s employment laws that the General Assembly passed in concluding the recent, abbreviated legislative session.

Here is a summary of employment-related legislation that is headed to the Governor.

HB 14 – Equal Pay for Equal Work – Inquiring About Wages – Prohibitions on Adverse Actions

Prohibits employers from taking adverse action against employees who inquire about the employees’ wages.  This law will be effective October 1, 2020.

SB 119 – Wage Payment and Collection – Order to Pay Wages

Increases from $3,000 to $5,000 the threshold for a complaint for unpaid wages subject to an order by Commissioner of Labor and Industry to pay unpaid wages.

HB 123 – Wage History and Wage Range

Requires employers, on request, to provide applicants for employment the wage range for the position the applicant is seeking.  Employers may not retaliate or refuse to interview, hire, or employ applicants because the applicant did not provide wage history or requested the wage range for the position sought.  Moreover, employers may not rely on an applicant’s wage history when screening or considering an applicant for employment or determining the applicant’s wages, or seek an applicant’s wage history from a current or former employer.

After an initial employment offer  with compensation, an employer may rely on an applicant’s wage history if it is voluntarily provided by the applicant, but only to support a higher wage than that initially offered or to confirm the wage history voluntarily provided by the applicant to support a wage offer higher than the initial offer.  Moreover, an applicant’s wage history may only be used to increase the wage offer if the higher wage would not create an unlawful pay differential.

The legislation makes it unlawful to discriminate against an applicant because the applicant made a complaint under the statute, brings an action, or testify or will testify in a related proceeding.

Penalties for non-compliance include an order compelling compliance and civil penalties.  The law will be effective October 1, 2020, if signed by the Governor.

SB 531 – Discrimination – Race – Hair Texture and Hairstyles

Modifies the definition of “race” in Maryland’s Fair Employment Practices Act to include “traits associated with race, including hair texture, afro hairstyles, and protected hairstyles.”  A “protective hairstyle” includes braids, twists, and locks.

The legislation also deletes from FEPA Section 20-605, which permitted certain employment practices based on a “bona fide occupational qualification reasonably necessary to the normal operations of that business or enterprise”; permitted schools educational institutions from hiring and employing employees of a particular religion in specific situations; and permitted organizations to observe bona fide seniority systems and benefit plans so long as such systems and plans are not a subterfuge to evade FEPA.

If signed, the legislation is effective October 1, 2020.

HB 722 – Heat Stress Standards

Requires the Commissioner of Labor and Industry, in consultation with the Maryland Occupational Safety and Health Advisory Board to create regulations by October 1, 2022, requiring employers to protect employees from heat-related illness caused by heat stress.

SB 839 – Ban the Box (veto override of 2019 legislation)

Prohibits employers who employ 15 or more full-time employees, including certain supervisory and managerial employees, prior to the first in-person interview, from requiring applicants to disclose whether the applicant has a criminal record (as defined in the statute).  Employers may require applicants to disclose during the first in-person interview whether the applicant has a criminal record or has had criminal accusations brought against him/her.  Employers may not retaliate or discriminate against applicants or employees who have made a claim under the statute.

The law applies to regular employment, as well as contractual, temporary, seasonal, and contingent work, and work through a temp or employment agency.

Employers may inquire or make employment decisions if required to do so or if authorized by applicable federal or state law.  The law does not apply to employers that provide programs, services, or direct care to minors or vulnerable adults.  Local jurisdictions are permitted to enact and enforce more restrictive ban the box laws.

The law permits the Commissioner of Labor and Industry to order compliance, assess a civil penalty of up to $300 for each applicant or employee (subsequent violations only) against whom a violation has occurred.

This law is in effect.

HB 880 – Maryland Healthy Working Families Act – Family Member – Definition

Expands the definition of “family member” in the Maryland HealthyWorking Families Act to include a legal ward of an employee, a legal ward of an employee’s spouse, or a legal guardian of an employee’s spouse.  

HB 1018 – Labor and Employment – Economic Stabilization Act – Revisions

Requires the Secretary of Labor to develop mandatory, rather than voluntary, guidelines for employers faced with a reduction in operations, alters the required contents of the guidelines, requires an employer to provide written notice to certain persons at least 60 days before initiating a reduction in operations, requires that the notice include certain information and a certain statement, and requires the Secretary of Labor (or designee) to issue an order compelling compliance when certain circumstances exist.  If signed, the law will take effect October 1, 2020.  Here are more particulars:

  • Employee is defined to mean an individual who works for an employer (hourly or salaried) or in a managerial and supervisory capacity, but excludes employees who work less than an average of 20 hours per week or have worked for an employer for less than six months in the immediately preceding 12 months.
  • The mandatory guidelines the Secretary of Labor are to issue must include:
    • a written notice that an employer expects to terminate employees due to a reduction in operations;
    • the continuation of benefits, such as health, severance, and pension, that an employer should provide to employees who will be terminated due to a reduction in operations; or
    • the specific mechanisms that employers can use to ask for the assistance of the State’s quick response program.

Employers would be required to provide written notice to various stakeholders at the workplace that is subject to a reduction in operations, at least 60 days before initiating a reduction in operations, including:

  • all employees;
  • each exclusive representative or bargaining agency that represents employees;
  • individuals who work less than 20 hours on average each week or have worked for the employer for less than six months in the immediately preceding 12 months;
  • DLLR’s dislocated worker unit; and
  • all elected officials in the jurisdiction where the workplace is located.

Reduction in operations” is defined to include:

  • the relocation of a part of an employer’s operation from 1 workplace to another existing or proposed site; or
  • the shutting down of a workplace or a portion of the operations of a workplace that reduces the number of employees by at least 25 percent or 15 employees, whichever is greater, over any 3–month period.

The notice must include:

  • the name and address of the affected workplace;
  • the name, telephone number, and email address of a workplace supervisory employee;
  • a statement explaining whether the RIF is expected to be permanent or temporary and whether the workplace is expected to shutdown; and
  • the expected date when the reduction in operations will begin.

If an employer violates the notice requirements, the Secretary of Labor must issue an order compelling compliance and may assess a civil penalty of up to $10,000 per day for each day that an employer violated the notice requirement.

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