Beginning October 1, 2020, new obligations and prohibitions take effect concerning Maryland’s antidiscrimination law, mass layoff procedures, salary histories, and more.
The 2020 Maryland legislative session ended on May 7, when Governor Larry Hogan either vetoed or permitted any outstanding bills passed by the Maryland General Assembly to become law absent his signature. In addition to overriding the governor’s veto to enact a statewide “ban the box” law in February, the General Assembly enacted several new employment laws during this past legislative session. The new laws add protected characteristics to Maryland’s antidiscrimination law, enact new requirements in cases of mass layoffs, and create new obligations and protections related to employee salaries and salary inquiries. Each of the new requirements takes effect on October 1, 2020.
EXPANSION OF MARYLAND’S ANTIDISCRIMINATION LAW
The General Assembly amended the state’s antidiscrimination law to prohibit employment discrimination based on certain traits, such as hairstyle and hair texture, associated with race. Specifically, the bill prohibits discrimination on the basis of a “protective hairstyle,” which includes “braids, twists, and locks,” and clarifies that the definition of “race” also includes “traits associated with race, including hair texture, afro hairstyles, and protective hairstyles.”
With this amendment, Maryland became the seventh state, including neighboring Virginia, to enact legislation prohibiting discrimination on the basis of hairstyles associated with race.
NEW MASS LAYOFF PROCEDURES
The General Assembly also amended Maryland’s Economic Stabilization Act (known as a mini-WARN law), which will affect certain employee separation practices. Like the federal Workers Adjustment and Retraining Notification (WARN) Act, Maryland’s mini-WARN law provides for written notifications to employees in cases where an employer experiences certain threshold reductions in operations. Unlike its federal counterpart, however, employer notice requirements under the mini-WARN law had previously been voluntary. As amended, the notice requirements are now mandatory for covered employers.
Under the amended law, covered employers (i.e., employers with at least 50 employees who have operated an industrial, commercial, or business enterprise in Maryland for at least one year) are now required to provide 60 days’ written notice, prior to certain reductions in operations, to the following groups:
- All employees at the workplace that is subject to the reduction in operations, including those individuals who work less than 20 hours on average each week or have worked for the employer for less than 6 months in the immediately preceding 12 months at the workplace that is subject to the reduction in operations
- Each exclusive representative or bargaining agency that represents employees at the workplace that is subject to the reduction in operations
- The Maryland Dislocated Worker Unit
- All elected officials in the jurisdiction where the workplace that is subject to the reduction in operations is located
In addition, the required written notice must also contain the following information:
- The name and address of the workplace where the reduction of operations is expected to occur
- The name, telephone number, and email address of a supervisory employee who may be contacted for further information
- A statement that explains whether the reduction in operations is expected to be permanent or temporary and whether the workplace is expected to shut down
- The expected date when the reduction in operations will begin
SALARY HISTORY BAN AND SALARY INQUIRY PROTECTIONS
Finally, the General Assembly amended Maryland’s Equal Pay Act to address the gender wage gap that may stem from an applicant’s salary history. The amendments create several new employer obligations, and add applicant and employee protections relating to salaries, salary inquiries, and salary histories, including the following:
- Requiring an employer to provide the wage range for the position in question upon an applicant’s request
- Prohibiting an employer from seeking an applicant’s wage history orally, in writing, through an employee or agent, or from a current or former employer
- Prohibiting an employer from retaliating against, or refusing to interview, hire, or employ, an applicant because the applicant requested the wage range for the position in question or chose not to provide their wage history
- Prohibiting an employer from relying upon an applicant’s wage history in screening or considering the applicant for employment or in determining wages
- Permitting an employer to confirm and rely on voluntarily provided wage history to support a wage offer higher than initially offered, as long as the higher wage does not create an unlawful pay differential based on sex or gender identity
The General Assembly also amended the Maryland Equal Pay Act to prohibit an employer from taking any adverse employment action against an employee for asking about the employee’s own wages. Prior to the amendment, the act prohibited an employer from taking action only in response to inquiries about another employee’s wages.
RECOMMENDATIONS FOR EMPLOYERS
Maryland employers should take action to ensure they are in compliance with these requirements before the new legislation takes effect on October 1, 2020. Failure to do so may result in penalties, which, in some cases, may be severe: Maryland’s antidiscrimination law and Equal Pay Act contain private rights of action, as well as administrative penalties, while violations of Maryland’s mini-WARN law provide for civil penalties of up to $10,000 per day.
Employers should begin to prepare for these new laws by considering some or all of the following steps:
- Review handbooks and other EEO policies and make any modifications as necessary to account for the expansion of protected characteristics under state law
- Educate managers and human resources personnel on potential racial stereotypes (such as hairstyle) that may invite discrimination claims, as well as how to comply with new obligations relating to employee and applicant salaries or salary inquiries
- Review employee separation practices to ensure compliance with the new requirements related to mass layoffs
- Analyze employee compensation and create formal salary ranges for all positions
 The other states are California, Colorado, New Jersey, New York, Virginia, and Washington State. In addition, although the District of Columbia does not explicitly address discrimination on the basis of hairstyle or hair texture in its employment antidiscrimination statute, the DC Human Rights Act does include “personal appearance” as one of its protected characteristics.
 The bill clarifies, however, that an applicant may voluntarily provide their wage history.