Thursday, May 5, 2016

Employment Law Round Up - 2016

Maryland version…

The Maryland General Assembly was a pretty active event this year, but in the end, only a few employment-related laws made it to the finish line. Here is a brief summary of the new laws taking effect in Maryland on October 1, 2016:

SB 245 - Hiring and Promotion Preferences - Veterans and Spouses
Allows employers to grant a preference in hiring and promotion to eligible veterans, spouses of eligible veterans, and spouses of deceased eligible veterans. The law also provides that granting a preference under the law will not violate State or local equal employment opportunity laws. Obviously, it makes no mention of federal equal opportunity laws.

HB 249 (Cross File SB 557) - Members of the National Guard and Maryland Defense Force - Employment and Reemployment Rights – Enforcement
Authorizes members of the National Guard and Maryland Defense Force whose employment and reemployment rights have been violated to bring a civil action for economic damages. The fiscal notes state that this law simply codifies existing practice in the state.

SB 481 (Cross File with HB 1003) - Labor and Employment - Equal Pay for Equal Work Adds gender identity to the protected classes under state pay discrimination laws. It also adds a state prohibition against an employer taking any adverse employment action against employees disclosing or discussing an employee's wages, including those of other employees, if those other employees have already disclosed their own wages, or give permission for another to do so. The National Labor Relations Act already contains this provision, so it’s duplicative and unnecessary. However, it contains another disturbing nugget. Normally, an employee who has access to such information as part of their normal duties (think payroll, HR, etc.), does not have protection for disclosing the wages of another if the disclosure is not in response to a complaint or charge, or in furtherance of an investigation, hearing, etc. But, now (in Maryland) such an employee will have this protection if he/she obtains the information "outside the performance of the essential functions of the employee’s job". How, exactly are we to know if the employee gained access to this information outside of his/her normal duties?

Another troublesome aspect is the law’s definition of "location" in terms of requiring equal pay for jobs within the same location. You might think location would mean that particular facility. But no, the law defines "location" as meaning any workplace of a company located within the same county. So, if you have multiple sites within the same county, and any of those locations are different in terms of demographics, pay rates, etc., take care to have all your compensation documentation in order. While the law still allows business to base pay on things like education, experience, etc., this little tidbit could lead to you having to answer to a claim and defending yourself against a charge of pay discrimination.

HB 1004 - Equal Pay Commission
This law will eventually lead to more data collection and reporting requirements for Maryland businesses. It establishes the Equal Pay Commission which will be charged with "evaluating the extent of wage disparities in the public and private sector; establishing a mechanism for the commissioner to collect data from employers to evaluate disparities; developing a comprehensive strategy to determine and recommend best practices regarding equal pay and developing partnerships with the private and public sectors."

While the Maryland Healthy Working Families Act did not pass (despite 11th hour wrangling), it will be back next year. Rumor has it that some of that last minute wrangling involved an attempt to negotiate passage of the bill with passage of several of the Governor’s tax-relief efforts. Politics at its finest??

And on the federal front……

A small bit of good news reported by the HR Policy Association and Thompson's HR Compliance Expert, assuming it comes to pass. It looks like the DOL is backing away from its original proposal to raise the white-collar exemption minimum salary requirement. The final rule sent to the OMB last month included a raise of that level to $50,440 – indexed. It’s now been leaked that the DOL will lower that amount to $47,000.


Many business groups felt that the $50,440 figure failed to take into consideration the economic realities of different industries and different regions of the country. Also it would be way more than the threshold already enacted by states like California ($37,440) and New York ($34,124). I guess the DOL finally decided to listen – at least in part – to the job engines of the country on this issue. Or did they hear the voices in the US Congress who said they would have difficulty with the new rules?


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