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Legislative Updates

    October, 2020

    Workplace Harassment Bill Enacted In Montgomery County (10/6/2020)

    The County Council has enacted a bill that, for the first time, defines workplace harassment and lowers the burden of proof for accusations.

    Please review the new bill here

    https://www.montgomerycountymd.gov/council/Resources/Files/agenda/col/2020/20201006/20201006_8A.pdf

    New Maryland Laws as of October 1, 2020

    Retrieved on 10/5/2020 from;https://www.wtplaw.com/news-events/client-alert-new-maryland-laws-as-of-october-1-2020

    The following are some of the significant pieces of new legislation passed by the General Assembly last spring that take effect October 1, 2020.
     
    Maryland’s “Mini-WARN Act” Now Has Sharp Teeth

    HB1018/SB780 amends the Maryland Economic Stabilization Act, which previously set forth certain voluntary notification procedures for employers who plan to implement reduction in operations. Under the prior law, employers were “encouraged,” but not required, to provide 90 days advance notice of a layoff. There were no specific penalties if an employer failed to take any action.

    The new legislation, which takes effect on October 1, 2020, dramatically changes what a Maryland employer must do in the event of a “reduction in operations.”  In addition to creating specific requirements to provide notification to all affected employees, their unions, elected officials and the state, the new law also provides significant penalties in the event a Maryland employer ignores those new responsibilities. Maryland Department of Labor (“ MD DOL”) may assess a civil penalty of up to $10,000 for each day an employer fails to comply with the new law. Let’s take a closer look at this significant legislation.

    Who Is Covered?

    The new law applies to employers with at least 50 employees operating industrial, commercial or business enterprises in Maryland. It is unclear whether or not employees for Maryland companies that work out-of-state need to be counted in determining coverage. There are, however, some specific individuals who are not counted when determining coverage and those include employees who average fewer than 20 hours per week or have worked for the employer for less than 6 months in the preceding year.

    The mandatory notice requirements do not apply in certain reductions in operations, including those that result solely from labor disputes, occur at construction sites or other temporary workplaces, results from seasonal factors that are determined by the Maryland Department of Labor to be customary in the industry or result when an employer files for bankruptcy.

    What Triggers the Notice Obligation?

    Under the new law, the formal notice obligation is triggered when a covered employer implements a “reduction in operations”, which is defined as a relocation of part of an employer’s operation from one workplace to another existing at a proposed site or the shutting down of a workplace or portion of the operations of a workplace that reduces the number of employees by the greater of: (1) at least 25%; or (2) 15 employees, over any 3 month period. It should be noted that Maryland’s new legislation, has a lower threshold to trigger notice requirements than under the Federal WARN Act. Under Maryland’s Mini-WARN, a reduction of at least 25% or 15 employees, whichever is greater triggers the notice. Under Federal WARN, the trigger is set a 33% and 50 employee level. Maryland’s Mini-WARN also covers more employers within its scope. The Federal WARN Act applies to employers within 100 or more employees. Maryland’s new statute covers employers with only 50 employees.

    How Much Notice Must Be Given?

    In the event a Maryland employer experiences a reduction in operations, the employer must now provide at least 60 days advance written notice to all employees of the workplace who are subject to the reduction in operations, including those working an average of fewer than 20 hours per week and individuals who have worked for the employer for less than 6 months in the immediately 12 month period. Even though these employees are not counted to determine the 50 employee threshold for coverage, they must still receive the notice. The notice must also be provided to the exclusive representative or bargaining agency, i.e. union, that represents the employees, subject to the reduction in operations. Notice must also be given to the Maryland Workforce Development Dislocated Worker Unit and to all elected officials in the jurisdiction where the workplace that is subject to the reduction in operations is located.

    Contents of the Notice

    The written notice must include the following:

    • The name and address of the workplace where the reduction of operations is expected to occur;
    • The name, telephone number and email address of a workplace supervisory employee as a contact for seeking further information;
    • A statement that explains whether the reduction in operations is expected to be permanent or temporary and whether the workplace is expected to shut down; and
    • Finally, the expected date when the reduction in operations will begin.


    Continuation of Employee Benefits

    In addition to providing 60 days advance notice before initiating a reduction in operations, the new Maryland legislation also directs the Maryland Secretary of Labor to develop regulations to include the continuation of benefits such as health, severance and pension that an employer facing a reduction in operations would be required to provide to employees whose jobs are being terminated. Since those regulations have yet to be promulgated, it is unclear whether or not such benefits must be provided during the 60 day notice period or following the termination of employment.

    Penalties for Noncompliance

    As noted above, the Maryland Department of Labor has the primary enforcement responsibility for the new legislation. At this time, it is unclear whether the MD DOL has the exclusive right of enforcement or whether individual employees may bring private rights of action on their own behalf.

    What is clear is that the MD DOL can compel employer compliance and can also issue stiff civil penalties of up to $10,000 per day (up to a total of $600,000) for employer noncompliance. In assessing the imposition of a civil penalty, MD DOL will consider several factors, including the gravity of the violation, the size of the employer, the employer’s good faith and the employer’s prior history of compliance with the new law.
     
    Restrictions on the use of facial recognition in hiring

    HB1202 prohibits an employer from using certain facial recognition services, including the creation of a facial template during an applicant's interview for employment unless the applicant consents; authorizes an applicant to consent in writing to the use of such facial recognition service technologies during an interview; and provides the specific language the waiver must contain.

    Apparently some employers have begun using artificial intelligence to assist in the hiring process by using facial recognition technology to help evaluate applicants. Some states, like Illinois, and now Maryland, have begun the process of regulating this new workplace technology by making sure that the applicants are at least aware of it and have the right to object to its use.

    Restrictions on certain wage history inquiries

    HB123/SB217 provides that an employer, on request, must provide to an applicant for employment the wage range for the position for which the applicant applied; prohibits an employer from taking negative actions against an applicant for employment because the applicant did not provide wage history or a wage range; prohibits an employer from relying on an applicant’s wage history, except when voluntarily provided, and from seeking an applicant's wage history from former employers or their agents.

    This new legislation is designed to limit the effect of historic gender-based discrimination in the workplace that, for example, paid women less than men for similar positions. In many cases, employers determine its starting salary offer based on the applicant’s prior salary history. Under the new law, after the initial offer is made to the applicant, the employer may rely on any wage history that the applicant voluntarily provides to support a request for a higher starting salary, and verify the accuracy of that wage history. After October 1, 2020, Maryland employers may want to review their interview protocols and applications, to make sure that they are in compliance with this new law and refrain from initially asking in the application or during the interview the applicant’s prior salary history.

    Prohibition against discrimination based on hairstyle

    HB1444/SB531 amends Maryland’s Fair Employment Practices Act’s, (State Government Article, §20-602, Annotated Code of Maryland), definition  of race discrimination to include certain traits associated with race such as hair texture and certain afro hairstyles; and defining "protective hairstyle" as a hairstyle including braids, twists, and locks.

    This legislation, “Creating a Respectful and Open Workplace for Natural hair” often referred to as “CROWN”, has already been enacted in Montgomery County, MD and several other states including California, New York, New Jersey, Virginia, Colorado and Washington. After October 1, 2020, Maryland employers with more than 15 employees should review their personal appearance policies to make sure that they are in compliance with this new law.