Labor & Employment Newsletter - October 2019

Date: 10/01/19

Maryland’s Expanded Sexual Harassment Law

By: Peter Guattery

Recently enacted amendments to Maryland’s anti-discrimination laws go into effect today, October 1, 2019, which will have a wide impact on Maryland employers and their ability to defend against sexual harassment claims.  The law, which went largely unreported as the legislative session wrapped up this past Spring, makes significant definitional and coverage changes to the current non-discrimination laws, which every employer should consider in connection with their existing Human Resources practices.
The law, which was part of a broader effort to address gender diversity, equal pay and harassment, made a number of seemingly general changes to the existing law.  These modifications include:
  • Expansion of the definition of “employee” to include independent contractors. Not only will independent contractors be entitled to protections under the anti-discrimination laws, but they will necessarily be included in total employee counts for purposes of determining jurisdictional coverage of the laws.  
  • Also, with respect to claims of harassment, the definition of “employer” has been expanded.  As of this writing, the current Maryland anti-discrimination law applies only to employers with 15 or more employees. As of October 1, if there is a complaint of harassment, employers with only a single employee will be covered.  As a result, small employers facing harassment claims are subject to the statutory damages provisions of the state law. 
  • Harassment will now be a defined term and prohibited act under the law.  The amendments have defined unlawful harassment as: “includ[ing] harassment based on race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, gender identity, or disability, and retains its judicially determined meaning, except to the extent it is expressly or impliedly changed.”  While the last clause seems to build existing case law into the bill, it remains to be seen how this language will be interpreted and whether the newly added language will change the focus of harassment law in Maryland.
  • The new law also specifically provides that, in cases of harassment, an employer is liable if its negligence led to the harassment, or the continuation of the harassment.  An employer will also be liable for the actions of any individual who:
    • undertakes or recommends tangible employment actions, including hiring, firing, promoting, demoting, and reassigning an employee; or
    • directs, supervises or evaluates the work of the employee.
  • The law expands the time period for filing a complaint of harassment with a local human relations commission (i.e. the Maryland Commission on Civil Rights or a county civil rights office) from six months to two years.
  • The time period for filing a lawsuit alleging discriminatory harassment in violation of the State anti-discrimination law is also expanded from the current two years to three years.
In addition to these changes, which affect all Maryland employers, the law also imposes new training requirements for State employees.
Small employers likely to be impacted by the new law should make an effort to bring their anti-discrimination policies into compliance with the requirements of the law.  Likewise, employers already covered by the State’s law on anti-discrimination, should give consideration as to how these changes, particularly those that affect employer liability and coverage, affect their current policies and make revisions accordingly. 

Maryland Employment Law Changes Take Effect
October 1, 2019

By: Kevin McCormick

As you may recall, this past legislative session, the Maryland General Assembly passed a number of employment laws of interest to Maryland employers.  Some, described below, take effect today, October 1, 2019.  Let’s take a closer look at these new laws.

Equal Pay Remedies and Enforcement Act – H.B. 790.
This new law scheduled to take effect on October 1, 2019, imposes civil penalties on top of existing back-pay remedies against employers who violate Maryland’s Equal Pay for Equal Work law.  Under existing Maryland law, employers must pay similarly situated employees the same wage, without regard to sex or gender.  If a judge or commissioner of labor and industry finds an employer in violation of the law, the employer is now liable for back pay in the amount of the difference between the wages paid to the employee of one sex or gender and the wages paid to employees of another sex or gender, as well as liquidated damages.  In addition, employers may also be subject to a fine of up to $300 and if they are found to have violated the law two or more times within a three (3) year period, additional civil penalties equal to 10% of the amount of the back paid damages may be assessed.

Gender Diversity in the Boardroom Act – S.B. 911.
On April 6, 2019, the General Assembly passed the Gender Diversity in the Boardroom Act to promote gender diversity in corporate management and boardrooms. In passing the Act, the General Assembly stated its belief that gender diversity on boards of directors is associated both with firm’s overall financial value and with better corporate governance. It also opined that the presence of female directors tends to increase the number of women in leadership positions within the company. The new Act requires employers to file a yearly report on the percentage of female representation on their boards of directors and make the report publicly available on the Maryland Comptroller’s website. It also urges, but not requires, Maryland employers to have at least 30% of the seats on their boards of directors occupied by women by the end of 2022.
Changes to Maryland’s Workplace Harassment Laws – S.B. 872/H.B. 679.
On April 3, 2019, the Maryland General Assembly passed amendments to Maryland’s Fair Employment Practices Act relating to workplace harassment prohibitions, liability, enforcement and prevention training. Governor Hogan signed these changes into law on April 30, 2019 to become effective on October 1, 2019.

Although many of the changes in the legislation are procedural, some go much further and in certain circumstances, impose strict liability on employers for harassment committed by an employee’s supervisor.

Who is a “supervisor” is broadly defined to include anyone who directs, supervises or evaluates the employee’s work. By creating this liability, the new Maryland law undercuts an employer’s defense to such claims that it promptly responded to the employees claim of harassment and/or the employee failed to follow the company’s harassment reporting procedure.

The amendments also expand the definition of “employer” to include employers with as few as one (1) employee and expands the definition of “employee” to include independent contractors, increases the statute of limitations for filing administrative complaints for workplace harassment with a state or local agency from six (6) months to two (2) years, as well as increasing the statute of limitations for filing a civil action for workplace harassment from two (2) years to three (3) years. Finally, the new law requires certain anti-harassment training for Maryland state employers.

District of Columbia Universal Paid Leave Act

By: Tiffany Releford & Katelyn Brady

Under the Universal Paid Leave Act (“UPLA”), beginning in July 2020, employees in the District of Columbia will have the option of taking three types of paid leave: up to eight weeks of parental paid leave taken within a year of giving birth, placing a child in adoption or foster care, or changing the custody of a child; up to six weeks of family paid leave to care for or provide companionship to a seriously ill family member; and up to two weeks of medical paid leave after the employee is diagnosed with or had an occurrence of a serious health condition.
Although employees are not eligible for benefits under the Act until next year, as of July 2019, covered employers are required to contribute an amount of .62% of the gross wages paid to each of its covered employees to the Universal Paid Leave Fund (the “Fund”). This tax is an addition to any other payroll taxes or benefits the employer provides its employees and cannot be collected from the employees through payroll deduction. It is very similar to the unemployment tax employers must pay. Employers must also file a report and contribute to the Fund on a quarterly basis. Meaning, the first payment must be made no later than October 31, 2019.  If an employer employs five or more covered employees, the employer must register with the Department of Employment Services (“DOES”) and pay the tax online. If the employer employs less than five employees, the employer can use the online service or manually complete registration and payment with the DOES. Employers are not exempt from contributing to the Fund if they already provide their own sponsored paid leave benefits.
In addition to the above requirements, employers are further required to develop and maintain records related to the UPLA for three years. These records include: the name and social security number or tax identification number of each covered employee; the beginning and ending dates of each pay period; the wages paid for each pay period; the method of payment; the earnings of employees; the dates on which wages were paid; the dates of parental, medical, or family leave taken by employees; copies of employee notices of leave furnished to the employer; copies of all written notices given to employees are required under the UPLA; documents describing employee benefits; and records of disputes between the employer and the employee regarding the UPLA. Employers must also post notice to their employees of their UPLA rights at each worksite in a conspicuous place or common area, and provide notice at certain times when an employee provides notice that leave for a qualifying event is needed.
An employer who fails to comply with the UPLA will be subject to certain penalties. These penalties can include misdemeanor convictions, fines, or interest rates attached to unpaid sums.
The attorneys are Whiteford, Taylor & Preston can assist employers in ensuring compliance with the UPLA and understanding their rights and responsibilities under the Act.

Virginia Employers Must Produce Personnel Files

By: Mary Elizabeth "Betsy" Davis

As of July 1, 2019, employers in Virginia must furnish to employees and former employees copies of all records retained by the employer in the following categories:
  • the employee’s dates of employment with the employer
  • the employee’s wages or salary during the employment
  • the employee’s job description and job title during employment
  • any injuries sustained by the employee during the course of the employment with the employer (Virginia Code §8.01-413.1(B)).

Prior to the newly enacted statute, Virginia private sector employers had discretion to decide whether to provide current and former employees with copies of or access to their employment records.  Now, the Virginia Code requires production and gives employers just 30 days from receipt of a written request from a current or former employee or her attorney to comply.  If the employer is unable to meet the 30 day deadline, the employer must notify the requester of the reason for the delay and then will have no more than 30 days after the date of that written notice to comply with the records request.

One narrow exception to the statutory requirement exists.  Employers are not required to produce employment records to employees where the file includes a written statement from the employee’s treating physician or psychologist and the production may endanger the life or safety of the employee or another person.  If the exception applies and the records are not to be produced to the employee, the employer must provide the records to the employee’s attorney or insurer.

Employers who refuse to comply may be served with a subpoena.  If a court deems the employer’s refusal to comply with the lawful request willful, the court may award damages for all expenses incurred by the employee, including court costs and reasonable attorneys’ fees.

The production time is tight.  Employers should update policies and set procedures to comply with the anticipated increase in requests for personnel files.  For assistance updating policies or responding to employee requests for copies of employment records, contact Betsy Davis.
delaware - 2019 New employment laws
By: Steven Bers

Sexual Harassment Law:  2019 saw two new Delaware enacted employment laws of note.  First, following the national trend enhancing protection from workplace sexual harassment, Delaware enacted a requirement that employers of four or more Delaware employees provide new-hires with a Delaware-agency issued poster explaining protections from harassment, and distribute the same to all current employees.  Employers of 50 or more employees must provide an “interactive” harassment-prevention training program for all employees by January 1, 2020.

Mini-WARN Act:  Delaware’s second enactment, The “Delaware Worker Adjustment and Retraining Notification Act” tracks the federal WARN Act, requiring a 60 day notice in the event of a “plant closing,” “mass layoff,” or “relocation.”  Generally only applicable to employers of 100 or more employees, the Delaware definitions can capture certain employers, especially those with part time workers, not covered by Federal law.