Unfortunately, it’s a train barreling right at them
There’s normally a fair amount of attention focused on federal laws and regulations governing the employment relationship. After all, the majority of businesses fall under the broad umbrella of federal action; whether it is by Executive Order (fiat?), legislation or regulatory agency rulemaking. However, there are 50 states (and hundreds of localities) that consider and pass laws every year in their jurisdictions that affect many businesses within those states and localities.
In my various roles as an HR pro, government and legislative affairs director/committee member for our local Chamber and our local chapter of SHRM, I closely follow these things in my state. The 2015 Maryland General Assembly session began last month, and our elected state officials are hard at work, stoking the engine of a fast-moving train aimed at overregulating every aspect of business. I really have to wonder what their real purpose and motivation is when I see some of these bills. Let’s take a look at some of them (in no particular order).
Maryland Healthy Working Families Act
Businesses with 9 or more employees must provide paid sick and safe leave. The leave will accrue at the rate of at least 1 hour for every 30 hours worked, up to a maximum of 56 hours per year. It would be a wonderful world if all employers – of all sizes – could afford to do this for all their employees. That’s just not reality. This bill would hurt the very businesses that provide the largest number of jobs – the small business. In addition to the leave, the bill requires a fair amount of documentation, notices to employees, per pay period accounting of leave balances, etc. Many small employers do not use payroll services, but process payroll in-house, creating additional time and cost for this documentation.
Noncompete and Conflict of Interest Clauses
Would ban non-compete and conflict of interest provisions that restrict the ability of an employee to enter into employment with a new employer, or be self-employed, in the same or similar business or trade as being against the public policy of the State. Such clauses or agreements are standard fare, especially in highly technical and scientific fields. Does it make sense to prevent businesses from protecting their interests for some period of time? The business invested the time and money into producing product, service or creating intellectual property. Shouldn’t it be allowed to prevent a former employee from unfairly benefiting from that sweat equity for some reasonable amount of time, or from taking that product or service to a competitor?
Fair Scheduling Act
Requires businesses to provide employees with a work schedule at least 21 days before the first day the employee is scheduled to work; post a notice at least 21 days before the start of each workweek that shows the start of each workweek, and includes all shifts of all employees, including those not scheduled to work or be on call for that week; notify employees of any changes to their schedule, and provide employees with a new work schedule within 24 hours after making a change to the initial schedule. It would also prohibit an employer from requiring an employee to work hours not included in an initial schedule unless the employee consents to it in writing and would prohibit requiring the employee to find another employee to cover hours he/she is unable to work. And it gets better: an employee can request that the schedule be changed and limit his/her hours to any hours the employee chooses- and the business must consider this and respond in writing with reasons. The employer also cannot change an employee’s work schedule within 24 hours of the first shift of the schedule. If it does, the employer must pay the employee 1 hour of "predictability pay" for each shift that is changed. What are they thinking? Want to turn every retailer, health care provider and manufacturer on its head? What could they possibly be thinking? Scheduling 21 days in advance? Seriously? And who thought up "predictability pay"?
Overwork Prohibition Act
Changes the requirement to pay overtime for hours worked over 8 in a day, rather than the current requirement of overtime pay for hours worked over 40 in a workweek. It also would require overtime pay on the 7th consecutive day if the employee has agreed to work 7 consecutive days; works less than 11 hours after the end of the immediately preceding shift, or within the 11 hour period immediately following the end of a shift that spanned 2 days. Also, an employee can decline a request to work more than 6 consecutive days, or work more than 55 hours during a workweek or work hours that occur less than 11 hours after the end of the preceding shift or during the 11 hour period immediately following the end of a shift that spanned 2 days. It’s not like the Fair Labor Standards Act isn’t already massively complicated to properly comply with, now our elected officials want to not only hamstring businesses, but add multiple layers of complexity on top of that. Again, where is this coming from? So, we can’t require overtime regardless of business necessity. We can only say pretty please, and the employee can still refuse. Amazing.
Nondisclosure Agreements - Prohibition
Prohibits nondisclosure of proprietary information agreements or otherwise create any expectation that a confidential relationship exists with respect to proprietary information. What?! I’m at a loss……
Wage Disclosure and Discussion Protection
This bill would prohibit an employer from taking any adverse employment action against an employee in regard to an inquiry about or disclosure or discussion of an employee's wages, or another employee’s wages. It would also prohibit action against an employee who inquires about another employee’s wages, discloses his/her own wages to others or discusses another employee’s wages (if those wages have been disclosed voluntarily). To name just one issue with this bill, if I reveal to my co-worker my wage, it doesn’t mean I want that coworker to announce that information to everyone else; yet would be protected in doing so. Additionally, the National Labor Relations Act already expressly prohibits employers from disciplining employees from discussing wage, hours and other conditions of work. I see no valid reason to create another cause of action on this issue.
These are just a few of the many bills before the Maryland General Assembly this year – so far. The deadline for submitting bills is yet to come! Each year, as I read through the pending legislation, my hair bursts into flames. This year I think I’m reaching total spontaneous combustion. It appears none of the sponsors of these bills has ever run a business, has no clue how to run a business. Another completely confusing point? All this is from a majority Democratic state legislature, in a state that just elected a Republican governor.