Thursday, January 5, 2017

Workplace Law Outlook in Maryland for 2017

And a look at what the feds might bring…..

The Maryland General Assembly convenes on January 11, 2017. What can we expect from our elected officials this year in terms of employment law and workplace regulation? As in past years, it will most likely be more of the same, but the changed atmosphere could inject a bit more energy into the process.

In Maryland, we have a Republican governor (who enjoys an unprecedented approval rating among all Marylanders) and a majority Democrat state legislature. They have butted heads already on several issues and will most likely continue to do so this year.

I think it’s fair to say that the paid sick leave issue will take center stage in the employment-related arena (again) this year. Two bills have already been pre-filed that are repeats of the bill presented last year. It would require employers with 15 or more employees to provide paid sick leave at the rate of one hour for every thirty hours worked; employees working as little as 8 hours per week would qualify; Some of the provisions are that it would allow for carry-over of sick leave from one year to another and would require reinstatement of unused leave if an employee leaves that company and returns within a specified time period. 

Governor Hogan is set to present his own bill on sick leave. Sources say it would cover employers with 50 or more employees offer a tax incentive for smaller employers that offer comparable leave, will require five, not seven days of paid leave and will cover part time employees working 30 or more hours after they work for the employer for 120 days. Leave will have to roll over (at least 40 hours) but accrual can be capped at that point, does not have to be paid out at termination nor reinstated if the employee is rehired. At a legislative kick-off breakfast hosted by our local Chamber today, our delegation to the GA seemed to feel that Governor Hogan’s bill would not get any support from Democrats. Not terribly surprising.

It’s also likely that another bill regulating scheduling practices will be presented again this year. Prior bills submitted on this subject have severely restricted an employer’s ability to manage staffing levels when employees call-out with little or no notice and even prevented businesses from hiring new employees (what?) without first offering additional hours to existing employees. The penalty for making changes to an employee’s schedule with less than 21 days’ notice would require the employer to pay "predictability" pay to employees. 

You can review last year’s landscape in my previous posts here and here. I expect many of these to return this year.

On the federal front, we could see a fair amount of churn in that the Trump administration will likely nix several Executive Orders President Obama put into place, as well as instruct regulatory agencies to back down from other efforts. I think most will agree that the DOL’s new overtime rules are dead (even without the federal injunction). 

It’s also fairly sure that once new members are appointed to the National Labor Relations Board that several of the decisions made by the current board will be overturned – ranging from so-called "quickie election rule" to the joint employer standard, and of course, the many, many attacks on policies in employee handbooks. That will certainly be welcomed by many businesses (employers).

While the CEO Pay Ratio is not a well-known issue to some, it is still alive (for now). Starting next year, the U.S. Securities and Exchange Commission (SEC) will require public companies to calculate how their chief executives' compensation compares with their workers' median pay and to disclose the so-called CEO pay ratio in proxy statements reporting on fiscal year 2017. The rule implements part of the Dodd-Frank Act, and many public companies are already working through the calculations involved. Will this survive the Trump Administration? With Andrew Puzder coming in as head of the DOL, there’s a good bet it won’t. However, be aware (or beware, as the case may be), many states or localities are considering or have passed their own laws in this area, including the city of Portland, Oregon

Of course, the elephant in the room is the Affordable Care Act (ACA) and if it will actually be fully repealed, partially repealed, or repealed and replaced and how it all might work. It’s hard to know how this will pan out.

Actually, it’s hard to know how a lot of these issues, and many more, may pan out. What we all need to remember is that both sides (all sides?) are engaging in rhetoric that is designed to get us fired up. It’s what they do (along with the media). What we as business leaders, professionals, and citizens have to do is dig deeper and get as much information as is possible before deciding which "side" we’re on. Consult multiple sources for information – don’t just flow with the headlines or soundbites; educate yourselves and discover how all these things will really affect you, your business and your employees.

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