December 2020 Maryland HR Legal Updates

Montgomery County Amends Ban-the-Box Legislation

What happened?
Montgomery county, the most populous county in Maryland, has amended the Ban-the-Box legislation, Bill 36-14, to be more restrictive.

What are the details?
The amendments make the county wide bill now more restrictive than the state wide Ban-the-Box legislation.

The key changes that were made to the existing law are:

  • Timing of criminal record inquiry: Permitted only after a conditional offer of employment is extended to the applicant.
  • Prohibited inquiries:  Employers may not inquire into whether:
    • The applicant has been arrested for a matter that did not result in a conviction;
    • The applicant has a first conviction for trespass, disturbing the peace, or misdemeanor assault in the second degree; or
    • The applicant has a misdemeanor conviction, if at least three years have passed since the date of conviction and the date that any period of incarceration for the misdemeanor ended.
  • Definition of “employer”:  The amendments redefine employer as “any person, individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association, or other entity operating and doing business in the County that employs 1 or more persons full-time in the County. Employer includes the County government, but does not include the United States, any State, or any other local government.”

An article covering all of Maryland’s Ban-the-Box legislation can be found here.

What do employers need to do?
Employers with employees within Montgomery County MD should review their hiring practices and the above changes to ensure compliance with local laws.

October 2020 Maryland HR Legal Updates

Montgomery County Lowers Standard for Proving Harassment in the Workplace

What happened?
On October 6, 2020, the County Council for Montgomery County, Maryland voted to significantly revise its human rights law as it relates to workplace harassment.

What are the details?
Bill 14-20 was signed into law on October 16, 2020. The bill amendments would change the existing “severe or pervasive” standard that normally applies under federal law. Instead the text now will read: “ a reasonable victim of discrimination would consider the conduct to be more than a petty slight, trivial inconvenience, or minor annoyance.” Additionally, the victim will need to also prove one of the following criteria:

  • That “submission to the conduct is made either explicitly or implicitly a term or condition of an individual’s employment”
  • “submission to or rejection of the conduct is used as a basis for employment decisions affecting the individual” or
  • “The conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating a working environment that is perceived by the victim to be abusive or hostile.”

Bill 14-20 will be effective January 15, 2021.

Bill 14-20 can be read here.

What do employers need to do?
Maryland employers should look to update their anti-harassment and workplace bullying policies.

September 2020 Maryland HR Legal Updates

Maryland Ban on Salary History Questions Upcoming

What happened?
As of October 1, 2020, employers will no longer be allowed to ask potential employees their salary history during the interviewing process under HB 123.   

What are the details?
In effort to combat historical wage discrimination against women, Maryland will be prohibiting employers from asking interviewees what their previous salary history was. Additionally, interviewees may ask employers to provide the salary range for the relevant position. Applicants may still voluntary provide this information if they wish. It will be considered unlawful to refuse to interview, hire, or employ an applicant because the applicant did not provide their wage history. Finally, the law will prohibit employers from retaliating against an application for employment because the applicant makes a complaint, brings an action against you, or testifies against you under the equal pay law. Conversely, employees may not make groundless or malicious complaints against employers or otherwise proceedings in bad faith. 

An article discussing HB 123 can be found here.

HB 123’s full text can be found here.

What do employers need to do?
Employers should begin updating their hiring policies in order to stay in compliance with HB 123. Managers and other employees with the ability to hire should be trained on the new restrictions in order to reduce possible liability.

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Maryland Upcoming “Mini”-WARN Act and CROWN Act

What happened?
On October 1, 2020, Maryland’s mini-WARN (Worker Adjustment and Retraining Notification) Act and Create a Respectful and Open World for Natural Hair (CROWN) Act will become effective.

What are the details?
“Mini”-WARN Act

The Mini-WARN Act, SB 780, when compared to the federal WARN Act is more encompassing, requires notices be given to more people once triggered, and imposes much harsher penalties. Maryland’s WARN act will cover employers operating industrial, commercial, or business enterprises employing 50 or more employees for at least 12 months. Employees working 20 hours or less on average per week or have worked for the employer for less than six of the preceding 12 months are not included in the count for the purpose of determining an employer’s coverage under law. Under SB 780, employers must provide a 60 days’ notice of a reduction in operations, defined as:

  1. A relocation of a part of an employer’s operation from one workplace to another existing or proposed site; or
  2. The shutdown of either a workplace; or a portion of the operations of a workplace that reduces the number of employees by the greater of at least 25%, or at least 15 employees, over any three-month period.

Under the law, covered employers must provide 60 days’ notice to:

  • All employees at the workplace subject to reduction;
  • Any union or bargaining agency of the affected employees;
  • The Maryland Workforce Development’s Dislocated Worker Unit; and
  • All elected local officials in the area of the affected workplace.

This law will not be enforced by the Maryland DOL until they have posted their requirements, expected around April 2021. They will likely be posting the regulations for public comment in November 2020.  Upon enforcement, employers who violate the law could face a civil penalty of up to $10,000 per day for failure to provide notice to all required parties.

Finally, the law does not apply to reductions in operation that are the result of:

  • labor disputes;
  • that occur in state or politically run commercial, industrial, or agricultural businesses;
  • occur at construction sites or other temporary workplaces;
  • that are the result of seasonal factors, as determined by the Department of Labor; or
  • occur when an employer files for bankruptcy.

SB 780 can be read here.

CROWN Act

Like many other states now, Maryland has implemented a CROWN Act into its law. The CROWN Act expands the definition of race to include “certain traits associated with race, including hair texture and certain hairstyles.” “Braids, twists, and locks” along with “hair texture, afro hairstyles, and protective hairstyles” are specifically named and included in this protection.

The CROWN Act can be read fully here.

What do employers need to do?
Employers should update their standards of procedure when reducing their workforce, should it trigger Maryland’s WARN Act. Employers should also look at their hiring procedures and may need to provide training to hiring personnel regarding the CROWN Act’s new additions to the definition of race.

August 2020 Maryland HR Legal Updates

Maryland Restaurant Employers Required to Provide Wage Statements to Tipped Employees

What happened?
Effective October 1, 2020 Maryland restaurant employers that claim a tip credit must provide all tipped employees a written or electronic wage statement.

What are the details?
This wage statement can either be included as part of the employee’s pay stub or at a separate time no later than two weeks following the end of the pay period. The wage statement must include the following information:

  • The effective hourly tip rate is derived from the employer’s paid cash wages (the sum of total cash wages); plus
  • All reported tips for tip credit hours worked each workweek of the pay period (the total reported tips for that workweek, then divided by the number of hours worked).

Maryland has provided an FAQ about the Tip Credit Wage Statement.

What do employers need to do?
Restaurant employers in Maryland should review and update their payroll policies and systems to ensure compliance with this law by October 2020.

July 2020 Maryland HR Legal Updates

Summary of Laws with Upcoming Effective Dates

Hair Discrimination
Effective October 1, 2020, an amendment to the Maryland Fair Employment Practices Act provides that race discrimination includes discrimination based on traits associated with race, including hair texture, Afro hairstyles, and protective hairstyles such as braids, locs, and twists.

Salary History
Effective October 1, 2020, employers must provide job applicants with a wage range for their potential position upon request. In addition, employers may not take adverse action against applicants for not providing a wage history or rely on an applicant’s wage history in considering the applicant for employment or in determining the applicant’s wages.

However, after an initial offer of employment including a compensation offer has been made to an applicant, an employer may confirm and rely on voluntarily provided wage history to support a wage offer higher than initially offered, as long as the higher wage does not create an unlawful pay differential based on sex or gender identity.

Salary Disclosure
Effective October 1, 2020, employers may not take adverse action against employees for inquiring about their own wages.

Work Adjustment and Retraining Notification
Effective October 1, 2020, employers with 50 or more employees are required to provide written notice at least 60 days prior to the relocation of a part of an employer’s operation from one 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% or 15 employees, whichever is greater, over any three-month period.

Employers must also provide continuation of benefits to affected employees.

Paid Sick Leave
Effective October 1, 2020, the definition of a family member for paid sick leave purposes has been expanded to include a legal ward of the employee and a legal guardian or ward of the employee’s spouse.

Facial Recognition
Effective October 1, 2020, an employer may not use a facial recognition service for the purpose of creating a facial template during a job applicant’s employment interview unless the applicant provides consent.

June 2020 Maryland HR Legal Updates

Maryland Employers with 50+ Employees Must Submit Sexual Harassment Survey by July 1, 2020

What happened?
Pursuant of the Disclosing Sexual Harassment in the Workplace Act of 2018, employers in Maryland with 50 or more employees must complete a survey and submit it to the Maryland Commission on Civil Rights on or before July 1, 2020.

What are the details?
The Act requires employers to fill out the survey, which will include the following information:

  1. The number of settlements made by or on behalf of the employer after an allegation of sexual harassment by an employee;
  2. The number of times the employer has paid a settlement to resolve a sexual harassment allegation against the same employee over the past 10 years of employment; and
  3. The number of settlements made after an allegation of sexual harassment that included a provision requiring both parties to keep the terms of the settlement confidential.

If there is an answer for Question 2, employers must also answer a follow-up question:

  • Whether the employer took personnel action against an employee who was the subject of a settlement.

After his initial report employers will be required to fill out the survey every other year. The information will be kept confidential.

The Act can be found here.

What do employers need to do?
Employers with 50 or more employees in Maryland should fill out the survey as soon as possible. Keeping proper documentation will allow for employers to fill out the future surveys easier.

Summary of State Laws (Q1 & Q2 2020)

Criminal Background
Effective January 1, 2020, employers with 15 or more full-time employees are prohibited from requiring applicants to disclose whether they have a criminal record or have had criminal accusations brought against them before the first in-person interview and/or retaliating or discriminating against an applicant or employee for claiming a violation of the law.

Employers can inquire about an applicant’s criminal background during the first in-person interview. This law does not prohibit employers from making an inquiry if required or expressly authorized by federal or state law, nor does it apply to employers that provide programs, services, or direct care to minors or vulnerable adults.

Sexual Harassment Settlement Reporting
On or before July 1, 2020, Maryland employers with 50 or more employees must report the following information to the Maryland Commission on Civil Rights:

  • The number of settlements made by or on behalf of the employer after an allegation of sexual harassment by an employee
  • The number of times the employer has paid a settlement to resolve a sexual harassment allegation against the same employee over the past 10 years of employment
  • The number of settlements made after an allegation of sexual harassment that included a provision requiring both parties to keep the terms of the settlement confidential

A second report is due on or before July 1, 2022.

Hair Discrimination
Effective October 1, 2020, an amendment to the Maryland Fair Employment Practices Act provides that race discrimination includes discrimination based on traits associated with race, including hair texture, afro hairstyles, and protective hairstyles such as braids, locs, and twists.

Salary History
Effective October 1, 2020, employers must provide job applicants with a wage range for their potential position upon request. In addition, employers may not take adverse action against applicants for not providing a wage history or rely on an applicant’s wage history in considering the applicant for employment or in determining the applicant’s wages.

However, after an initial offer of employment with a compensation offer has been made to an applicant, an employer may confirm and rely on voluntarily provided wage history to support a wage offer higher than initially offered, as long as the higher wage does not create an unlawful pay differential based on sex or gender identity.

Salary Disclosure
Effective October 1, 2020, employers may not take adverse action against employees for inquiring about their own wages.

WARN
Effective October 1, 2020, employers with 50 or more employees are required to provide written notice at least 60 days prior to the relocation of a part of an employer’s operation from one 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% or 15 employees, whichever is greater, over any three-month period.

Employers must also provide continuation of benefits to affected employees.

Paid Sick Leave
Effective October 1, 2020, the definition of a family member for paid sick leave purposes has been expanded to include a legal ward of the employee and a legal guardian or ward of the employee’s spouse.

Facial Recognition
Effective October 1, 2020, an employer may not use a facial recognition service for the purpose of creating a facial template during a job applicant’s employment interview unless the applicant provides consent.

March 2020 Maryland HR Legal Updates

COVID-19 Employee Protections

What happened?
Governor Hogan signed a law to provide ongoing support and direction related to COVID-19.

What are the details?
The state of emergency establishes the following:

  • Prohibits cost-sharing by insurance providers for COVID-19 testing
  • Require insurance carriers to cover COVID-19 vaccine (if developed)
  • Prohibits employers from terminating staff because an employee was required to be isolated or quarantine, to care for a family member due to COVID-19, or leaves work out of fear of contracting COVID-19

What do employers need to do?
Comply with the above items listed above.

https://governor.maryland.gov/2020/03/19/governor-hogan-enacts-emergency-legislation-to-enhance-ongoing-response-to-covid-19/

February 2020 Maryland HR Legal Updates

“Ban the Box”

What happened?
The new Maryland law, the Criminal Record Screening Practices Act (the Act), will take effect on February 29, 2020.

What are the details?
Under the Act, employers with at least 15 full-time employees may not, before the first in-person interview, require an applicant for employment to disclose whether the applicant has a criminal record or has had criminal accusations brought against the applicant. The Act applies not only to traditional employment, but also applies more broadly to “any work for pay and any form of vocational or educational training, with or without pay,” including contractual, temporary, seasonal, or contingent work, and work assigned through a temporary or other employment agency.

Under the Act, an employer may require an applicant to disclose during the first in-person interview whether the applicant has a criminal record or has had criminal accusations brought against the applicant.

Employers also are prohibited from retaliating or discriminating against an applicant or employee as retribution for alleging a violation of the Act.

The Act does not apply to employers that provide programs, services, or direct care to minors or vulnerable adults. The Act also does not prohibit an employer from making a criminal record inquiry or taking other action that the employer is required or authorized to take under another federal or state law.

What do employers need to do?

  • Review employment applications to ensure they do not include any prohibited inquiries about an applicant’s criminal history.
  • Review their advertisements (paper and electronic) soliciting applications and remove any language that states applicants will not be considered for employment because of their criminal history.
  • Educate key employees in the hiring process about the ordinance’s requirements.
  • Update forms and practices for inquiring into an applicant’s criminal record, after the initial employment application process is completed.

For each subsequent violation, in the Commissioner’s discretion, the Commissioner may asses a civil penalty of up to $300.

Article: https://www.jacksonlewis.com/publication/maryland-becomes-latest-state-ban-box

Bill: https://legiscan.com/MD/text/SB839/id/1987057