Thursday, April 2, 2015

Maryland Legislative Update

The train switched tracks….

In February, I shared here a brief summary of several bills that were before the 2015 Maryland General Assembly. Well, the "cross-over" day has come and gone (this is the deadline by which a bill deemed favorable and likely to pass in one house must "cross over" to the other house for its consideration. And while it ain’t over till it’s over, some bills have clearly died in committee, either garnering an "unfavorable" vote and/or being withdrawn by the sponsor due to lack of interest or support, or simply languishing without a vote at all.

The results don’t surprise me much. With a Democrat controlled state legislature and a newly-elected Republican governor, I had to wonder why some of these bills were even brought forth. It’s also a bit unclear exactly why so many received an "unfavorable" determination in committee given the decidedly liberal slant (in a state that’s about as blue as they come), unless our elected officials actually realized many of them were simply a waste of time and effort at this point. At any rate, here’s a rundown of the bills I covered previously, and a few more – just for fun.

Wage Records, Wages, and Paydays - Requirements
Creates a requirement for a "wage notice" to be given to each new hire, and to all employees yearly, and when any pay change occurs. Washington, DC recently passed a similar law. New York State repealed its requirement for this notice recently – due to the business burden and the fact that such a notice is basically redundant. Unfavorable Report by Economic Matters; Withdrawn

Discrimination Based on Engagement in Lawful Activities – Prohibition
This bill would prohibit an employer from failing or refusing to hire, discharging, or otherwise discriminating against an applicant or employee on the basis of the applicant's or employee's engagement in a lawful activity off the employer's premises during nonworking hours. Currently, 29 states have some type of statutory protection for lifestyle discrimination or legal off-duty conduct. Unfavorable Report by Economic Matters

Discrimination Based on the Use of Tobacco Products - Prohibition
Generally prohibits an employer from discriminating against or taking adverse action against an employee or an applicant who uses tobacco products off the employer's premises during nonworking hours. Currently, 18 states have laws specifically related to the non-work use of tobacco products. Another eight states protect employees from discrimination if they use lawful consumable products, which would include tobacco. Four more states say employers can't discriminate against employees who engage in lawful activities outside of work. Unfavorable Report by Economic Matters

Fair Employment Preservation Act of 2015
This bill expands the definition of "supervisor" in relation to claims of harassment, discrimination, hostile work environment and retaliation. Also submitted last year, this bill specifically rejects the Supreme Court’s ruling in Vance v. Ball State University, 133 S.Ct. 2434 (2013), holding that a "supervisor" is defined as a person with the authority to take tangible employment actions against their victims. The sponsors of this bill want to include as supervisors those that "direct" the work others, regardless of their lack of authority to effect tangible employment action. In the House - Hearing 2/11 at 1:00 p.m. This bill appears to not have gotten further than the initial "reading".

Right to Work
Prohibits an employer or a labor organization (union) from requiring employees to join or remain a member of a union, or pay dues or maintenance fees to a union, as a condition of employment or continued employment. This bill has been submitted for several years running and has never made it out of committee. There are 26 states with Right to Work laws on their books. Unfavorable Report by Economic Matters

Maryland Second Chance Act of 2015
Allows a person to petition the court to shield court records and police records relating to certain convictions no earlier than 3 years after the person satisfies the sentence imposed for all convictions, unless the person is convicted of a new crime during a certain time period. Various versions of this bill and other "shielding" bills have been submitted for the past 3 years or so, and none have been passed as of yet. In the House - Hearing 2/26 at 1:00 p.m. Another one that simply died…..

State Minimum Wage Rate - Exceptions - Social Service Nonprofit Organizations
Authorizes nonprofit organizations that provide social services and have an annual operating budget of $250,000 or less to pay employees 85% of the State minimum wage or $7.25 per hour. Our own Senator Getty is the primary sponsor of this bill. In the Senate - First Reading Finance. Went nowhere.

State Minimum Wage Rate – Increase
This bill calls for the immediate increase of the minimum wage to $10.10 per hour; eliminating the phase-in of the rate passed last year. Unfavorable Report by Economic Matters

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. In addition to the leave, the bill requires a fair amount of documentation, notices to employees, per pay period accounting of leave balances to the employee, etc. In the House - Hearing 2/13 at 12:30 p.m. Given the fact that several localities around the country have passed such laws, I’m a bit surprised this one didn’t get more attention. I’m pleased it didn’t, but surprised.

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 for a specified length of time as being against the public policy of the State. Unfavorable Report by Economic Matters. Ya think?

Nondisclosure Agreements - Prohibition
Prohibits nondisclosure of proprietary information agreements or otherwise create any expectation that a confidential relationship exists with respect to proprietary information. Unfavorable Report by Economic Matters. Another one that left me scratching my head. 

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. Also, 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 if refusing the "request". 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. I can’t imagine the retail, food service, or healthcare industries staying quiet about this! Unfavorable Report by Economic Matters; Withdrawn. This could have been devastating to many businesses if passed.

Overwork Prohibition Act
Changes the requirement for overtime pay to 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 pretty complicated to properly comply with. Businesses would no longer be able to require overtime regardless of business necessity. - Unfavorable Report by Economic Matters; Withdrawn. 

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 initially disclosed voluntarily). The National Labor Relations Act already expressly prohibits employers from disciplining employees from discussing wages, hours and other conditions of work. I see no valid reason to create another cause of action on this issue. In the Senate - Hearing 3/05 at 1:00 p.m. Went nowhere!

In the last several years, where both my job and my other professional involvements and activities required that I pay more attention to employment related legislation on the state level – at least here in Maryland – I’ve seen many of these bills, or substantially similar bills presented year after year, usually with the same result. On the one hand, maybe you can say they never heard the definition of insanity. But despite the fact that they get presented at all, I guess we can all take a little heart in that at some point, sanity returned and they were withdrawn or got no further consideration. 


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