1. ERIC PALTELL, ESQ. KOLLMAN & SAUCIER, P.A. 2012 CUMBERLAND VALLEY SHRM LEGAL & LEGISLATIVE CONFERENCE Recent Developments in Maryland Employment Law

2. Program Overview Prohibition on Accessing Employee Social Media Accounts Workplace Fraud Act Amendments Change in Jury Service Law Employee-Union Communications Privilege Unemployment Insurance Extended to Victims of Domestic Violence Legislation to Look for in 2013 General Assembly Session

3. Facebook Privacy Law

4. Facebook Privacy Law (SB433 & HB964) Limits employer’s ability to require disclosure of social media passwords Creates new Section 3-712 of Md. Labor & Employment Article Takes effect October 1, 2012

5. Facebook Privacy Law - Overview Limits employer’s ability to request or require that an employee or applicant disclose their “user name, password, or other means for accessing a personal account or service” Permits employers to require disclosure of user names or passwords for accessing “non-personal” accounts or services that provide access to employer’s computer systems Law does not define “personal” and “non-personal” accounts Not clear if employer can require disclosure of social media passwords for employee account when employee has been authorized to use it for work purposes

6. Facebook Privacy Law - Exceptions No prohibition on investigating whether employee has been downloading proprietary information or financial data No prohibition on taking action against employee who downloads proprietary or financial data Not clear if employee password can be required in such situation

7. Facebook Privacy Law-Enforcement No express statutory remedy Employee fired for refusing to disclose password can likely bring a wrongful discharge (tort) claim

8. Workplace Fraud Act Amendments

9. Workplace Fraud Act Amendments (SB1005 &HB1364) 2009 law makes it illegal for construction and landscape contractors to misclassify employees as independent contractors State DLLR given the power to investigate complaints of misclassification 2009 law creates presumption that an employer- employee relationship exists when someone is paid for services 2012 amendment provides that presumption does not exist in certain circumstances

10. Workplace Fraud Act Amendments (cont’d) Presumption of employment status can be rebutted if employer produces:  Written contract with contractor which includes description of work, compensation, and contractor’s acknowledgement of obligation to pay unemployment, workers comp, and payroll taxes for its employees  Affidavit signed by contractor certifying that it is available to work for other businesses  Certificate of good standing for contractor from SDAT  Proof that all occupational licenses have been obtained  Proof that contractors have received notice that they are classified as contractors and the implications of the classification

11. Workplace Fraud Act Amendments (cont’d) DLLR investigative process was also modified by 2012 amendments Employers now have 30 days (as opposed to 15) to produce records to DLLR DLLR now has 90 days (as opposed to 45) to make a determination New changes took effect July 1, 2012

12. Jury Service Protection Amendments

13. Jury Service Protection Amendments (HB353) Current law prohibits employers from requiring employees to use accrued leave when responding to summons for jury service Law also prohibits employers from threatening or taking any adverse action against an employee for fulfilling jury service obligations

14. Jury Service Protection Amendments (cont’d) New law provides that any person who is summoned and appears for jury service which lasts for 4 hours or more (including travel time) cannot be required to work a shift that begins:(1) on or after 5:00p.m. on the day of the jury service appearance; or (2)before 3:00 a.m. on the day following the employee’s appearance. Changes effective October 1, 2012

15. Union Communications Privilege

16. Union Communications Privilege (SB797) New statutory privilege for communications between union and employee members concerning an employee grievance Applies to testimony in grievance hearings, arbitrations, and administrative and judicial proceedings Otherwise privileged communications may be disclosed in certain circumstances, including when necessary to prevent “certain death or substantial bodily harm” and other instances which can result in tangible and/or financial injury to property Takes effect October 1, 2012

17. Unemployment Extension to Victims of Domestic Violence

18. Unemployment Extension to Victims of Domestic Violence (SB291) Claimants who quit because of domestic violence will now be treated as having left for “good cause,” which qualifies them for benefits Reason for quitting must be the impact of domestic violence on employee, spouse, minor child, or parent Employee must reasonably believe continued employment would jeopardize safety of employee, spouse, minor child, or parent Employee must have documentation (restraining order, peace order, police report) substantiating domestic violence

19. Bills on the Horizon in 2013

20. Working Families Flexibility Act (HB1159) – gives employees right to meeting with employer to request changes in hours, time, and location of work, and to have 3 rd party present for meeting Workplace Bullying (SB999) – would make “abusive conduct” (including “derogatory and disparaging remarks”) by supervisors and coworkers illegal and impose liability on individual employees Discrimination on the Basis of Employment Status (SB966) – would add “employment status” as a protected category to prohibit discrimination against the unemployed Sexual Orientation and Gender Identity (SB212) – prohibits discrimination on the basis of gender identity (including transsexuals)

21. Questions?