Friday, January 15, 2016

Workplace Law Outlook for the 2016 Maryland General Assembly Session

What will it bring?

The 2016 session of the Maryland General Assembly began Wednesday, January 13th. What can we expect? For those of us closely watching the Maryland scene, we expect to see repeats of bills presented last year (many of which were repeats of bills presented in several previous years). As of this morning, no workplace/employment bills of note have been posted – yet.

Below I’ve noted several from last year – and the outcome of same. We expect to see many of these bills to again be on the docket this year. It’s generally thought that a bill on paid sick leave will not only come up, but will likely pass this year. The Maryland State Council of the Society for Human Resource Management (MDSHRM) is again at the forefront on this, along with the Maryland Chamber of Commerce. If you want to weigh in and help them shape this important public policy, take their paid leave survey here.

I’ll be posting periodic updates here as the session progresses. I urge all business leaders and HR pros to contact their elected officials to express either their support or opposition as the bills come up. They need to hear how these proposed laws will affect life and business here in Maryland. The only way they’ll hear our voice is if we actually use our voice! For my part, as the President (and acting Government Affairs Director) of the Carroll County Chapter of SHRM (CC SHRM), and a member of the Carroll County Chamber of Commerce’s Legislative Affairs Committee, I’ll (as usual) be closely following the session and communicating to our elected officials on these important issues.

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 New York State repealed its requirement for this notice recently – due to the business burden and the fact that such a notice is basically redundant. Unfavorable Report by Economic Matters; Withdrawn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

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. This bill appears to not have gotten further than the initial "reading".

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. No action. This will be revisited this year, and may very well pass, although with some changes.

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 would bedevastating 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. No action.


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