1. Employment law highlights
2018 legislative updates
Employment law highlights

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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:
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

9. General contractor liability
Applies to “construction services” as defined in workplace fraud Act
Amends wage payment and collection law, Lab. & empl
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

10. 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

11. 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.

12. 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.

13. 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

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

15. 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

16. 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

17. 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

18. Disclosing Sexual Harassment in the Workplace Act of 2018

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

20. 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

21. 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

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

23. 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

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

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

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

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

28. 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

29. 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

30. Survey will be submitted
electronically

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

32. 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

33. 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

34. 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