Employment law highlights 2018 legislative updates Employment law highlights

Top hits Maryland healthy working families act (Lab. & Empl. 3-1301) Disclosing sexual harassment in the workplace General contractor liability Prevailing wage private right of action

Healthy working families act: earned sick & safe leave Definitions Exemptions and other limitations on scope Accrual, caps, carryover Use, employee notice of use, permissible denial Technical assistance, notice of rights, model policies Record keeping Enforcement Prohibition on retaliation, bad faith complaints

HWFA highlights Definitions Broadly defines family, includes foster, adopted, and step-relatives Employee ≠ some real estate agents, youth, agricultural workers, temps Notable limitations Ee who regularly works fewer than 12 hours a week Construction workers w/cba that expressly waives coverage “As Needed” health & human services workers

Hwfa highlights Who gets what and how much? Er ≥ 15 ees = leave paid at reg hourly rate: tipped workers = min wage Accrual method: 1 hour earned for each 30 worked, or lump sum Er may cap accrual at 40 hrs/yr, total use at 64 hrs (with carryover) Not required to allow carryover if lump sum at beginning of year Er may prohibit use during first 106 days of employment Reinstatement if rehired within 37 weeks, unless paid out at termination

Hwfa highlights Uses, employee notice, ability to deny Medical care, prevention & legal, medical, mh care related to dv ER may require up to 7 days notice of foreseeable leave Er may deny leave in certain circumstances, particularly DD/mh employers Shift swapping permitted, specific provisions for tipped workers ER may require verification after 2 consecutive missed shifts Er may have policy prohibiting pattern of abuse Hwfa highlights

Hwfa highlights Notice to employees, technical assistance, record keeping ER must give statement of earned leave with pay, can be online Er must give notice of rights Dllr provides technical assistance, model policies, faqs Er must keep record of sick/safe leave accrued and used for 3 years Dllr can inspect upon complaint if er refuses inspection, rebuttable presumption of violation

Enforcement  Administrative complaints only, dllr mediates, only if dllr issues notice of violation and er fails to comply can ee bring suit to enforce dllr order, seek damages, etc. Retaliation & bad faith complaints prohibited Dllr technical Assistance: https://www.dllr.state.md.us/paidleave/ note on other pto policies: no need to modify if they provide at least as much leave or do not reduce compensation for absence due to illness/DV Hwfa highlights

General contractor liability Applies to “construction services” as defined in workplace fraud Act Amends wage payment and collection law, Lab. & empl. 3-507.2 Imposes j&s liability on a gc for wage payment violations of subs, sub-subs Subs must indemnify gcs unless violation caused by gc failure to make prompt payment or indemnification required by contract

Prevailing Wage Rates - Public Work Contracts- Suits by Employees What is a prevailing wage rate? In government contracting, the hourly wage, usual benefits and overtime, paid to the majority of workers, laborers, and mechanics within a particular area. Prevailing wages are established by the State Commissioner of Labor and Industry for each public works project and job category based on annual surveys

Eligible public works projects are: Those carried out by the State an elementary or secondary school for which at least 25% of the money used for construction is State money; and any other public work for which at least 50% of the money used for construction is State money.

Does not apply: Any public works contract valued at less than $500,000 is not required to pay prevailing wages. Any part of a public works contract funded with federal funds- those apply federal prevailing wage rate Specified construction projects under order of the Public Service Commission.

New law amends current Section 17-224, effective October 1, 2018 Allows employee to sue to recover difference between the prevailing wage rate and the amount received This is a change from previously requiring the employee to file a complaint with the Commissioner of Labor and Industry

Employee may now file an action whether or not the Commissioner has made a determination of restitution

New law makes double or treble damages discretionary Now “may” order double or treble damages if court finds that employer willfully withheld wages or fringe benefits

Contractor and subcontractor are now jointly and severally liable for obligations under this section Applies to actions brought by either the commissioner or the employee Employees may choose to sue either contractor or subcontractor

Impact of change Currently most cases are brought by the commissioner In 2017, Commissioner received fewer than 10 complaints regarding nonpayment of prevailing wages, and all were resolved administratively without recourse to the courts Likely will be brought in circuit courts

Disclosing Sexual Harassment in the Workplace Act of 2018

Adds Section 3-715 of the Labor and Employment Article, effective October 1, 2018

May not waive any substantive or procedural right or remedy to a claim that accrues in the future of sexual harassment or related retaliation Ends mandatory arbitration in sexual harassment cases Employers cannot require employees to stipulate to private arbitration Must allow employees to make claims publicly in court

Why end mandatory arbitration for sexual harassment claims? In response to “Me Too” movement Allows public to learn about harassment complaints to end culture of silence Less protection for serial violators

Is this retroactive? Will apply to any employment contract, policy or agreement executed, extended or renewed on or after October 1, 2018

No adverse actions against employees for refusing to enter into agreement to arbitrate harassment claims Adverse actions include discharge, suspension, demotion, discrimination in terms of employment or any other retaliatory act Amended NOT to include failure to hire - does not cover applicants

Retaliation - change to the terms or conditions of employment that would dissuade a reasonable employee from making a complaint

Employers attempting to enforce or enforcing any violative arbitration provision SHALL be liable for employee’s reasonable attorney’s fees and costs

Section 2- Mandated surveys to Maryland Commission on Civil Rights Applies to employers with 50 or more employees

On or before July 1, 2020, and on or before July 1, 2022, an employer shall submit a short survey to the MCCR

Survey must include: Number of settlements made by or on behalf of the employer after an allegation of sexual harassment by an employee Number of times the employer has paid a settlement to resolve a sexual harassment allegation against the same employee over the past 10 years of employment; and Number of settlements made after an allegation of sexual harassment that included a provision requiring both parties to keep the terms of the settlement confidential

Why collect surveys? Track which companies are using money to settle sexual harassment claims Not collecting total dollar amounts as opposed to proposed federal legislation Not collecting information on length of time to resolve complaint unlike proposed federal legislation Does not extend to contractors Victims still remain anonymous- companies do not need to include their names

Survey will be submitted electronically

Survey will include space for employer to report whether it took personnel action against the employee who was the subject of a settlement.

MCCR’s obligation to publish results Must post aggregate number of responses from employers for each item Public inspection of employer responses Must retain for public inspection on request

What will MCCR do with the surveys? On or before December 15, 2020, and on or before December 15, 2022, MCCR will review a random selection of surveys and create an executive summary of those surveys Executive summary will not include identifying information of employers Summary is submitted to governor and the Senate Finance Committee and the House Economic Matters Committee

Limited duration of Section 2 of Act Effective for a period of 4 years and 9 months Section 2 abrogated as of June 30, 2023