On May 7, 2020, in accordance with Article II, Section 16(c) of the Maryland Constitution, Governor Hogan allowed hundreds of Maryland bills to become law without his signature. Many of these laws will have direct implications on the workplace that employers should be aware of. A summary of these employment-related laws is provided below. All will become effective on October 1, 2020.

Expansion of Employers’ Notification and Reporting Obligations for Workforce Layoffs

S.B. 780, referred to as “Maryland’s Mini-WARN Act” (a state version of the federal Worker Adjustment and Retraining Notification (“WARN”) Act), revises the requirements by which Maryland employers must provide advance notice of significant layoffs. The law requires employers with 50 or more employees to provide 60 days of notice to impacted employees, union representatives, and various state officials if it plans to reduce its workforce by 25%, or 15 people, whichever is greater, over a three-month period. More information can be found within Marc Sloane’s May 14, 2020 publication titled “Maryland Enacts Mini-WARN Law”.

Ban on Discrimination Based on Hairstyles Commonly Associated with Race

In what has become a national movement, Maryland became the sixth state to ban workplace discrimination based on hairstyles and textures commonly associated with race. The movement has been led by the “Crown Coalition,” an alliance formed with the purpose of creating a more equitable and inclusive society for African Americans through anti-hair discrimination legislation. Maryland follows California, New York, New Jersey, Colorado, and Virginia in passing this legislation. Twenty-five other states have similar legislation pending.

Maryland’s legislation (H.B. 1444/S.B. 531) expands the definition of “race,” for the purposes of a number of pre-existing anti-discrimination laws. “Race” is now defined as including traits associated with race, including hair texture, afro hairstyles, and protective hairstyles. Protective hairstyles include braids, twists, and locks. The law bans discrimination not only in the employment context, but also in areas such as public accommodations and housing.

With the passage of this legislation, employers should take proactive steps to ensure their non-discrimination, anti-harassment, and personal grooming/personal appearance policies are wholly compliant. This may require the addition of clarifying language in employee handbooks and other policies. Further, employers should consider implementing additional training sessions to educate both management and staff on the expanded non-discrimination law.

Additional Flexibility for State Government Employees Needing Accommodations Related to Pregnancy or Child Birth

H.B. 523/S.B. 225 provides additional flexibility for state government employees who need accommodations related to pregnancy or childbirth. The law, applicable to all units in all three branches of Maryland state government, will require that reasonable accommodations are provided to an employee with a limitation caused or contributed to by pregnancy or childbirth, including by any of the following means:

• Changing the employee’s job duties
• Changing the employee’s work hours
• Relocating the employee’s work area
• Providing mechanical or electrical aids
• Transferring the employee to a less strenuous or less hazardous position
• Providing leave

Under the new law, units of state government are prohibited from requiring an employee to take leave, whether paid or unpaid, if the employer is able to provide another reasonable accommodation for the employee’s limitation caused or contributed to by pregnancy or childbirth. State government entities are further prohibited from requiring an employee to accept an accommodation that the employee chooses not to accept if: (1) the employee does not have a limitation caused or contributed to by pregnancy or childbirth or (2) the accommodation is not necessary for the employee to perform the essential duti¬¬¬¬es of the employee’s job.

Expansion of Maryland’s Equal Pay Statute to Include Ban on Retaliation

Pursuant to the recently passed H.B. 14, Maryland’s “equal pay for equal work” law ¬is expanded to include a ban on retaliation against employees who inquire about their wages. Maryland’s preexisting equal pay for equal work law, which remains in force, forbids employers from prohibiting an employee from inquiring about, discussing, or disclosing the wages of the employee or another employee, or requesting that the employer provide a reason for why the employee’s wages are a condition of employment. Further, employers cannot circumvent the rule by requiring employees to sign a waiver which purports to deny the employee the right to disclose or discuss the employee’s wages.

Importantly, the retaliation provision now prohibits an employer from taking any adverse employment actions against an employee for any of the following:

• Inquiring about the employee’s wages or another employee’s wages
• Disclosing the employee’s own wages
• Discussing another employee’s wages if those wages have been disclosed voluntarily
• Asking the employer to provide a reason for the employee’s wages
• Aiding or encouraging another employee’s exercise of rights under the Equal Pay for Equal Work law

New Employer Requirements Regarding Wage History and Wage Ranges

As a result of H.B. 123’s passage, Maryland employers are required, on request, to provide to job applicants the wage range for the position to which the applicant applied. Additionally, employers are prohibited from taking negative actions against an applicant who requests such wage information and who does not provide their own wage history or wage range. Employers are also banned from relying on wage history for the purpose of determining fair wages, except when such information is voluntarily provided. Lastly, employers are prohibited from seeking an applicant's wage history from former employers.

Supporters of H.B. 123 have argued that its passage will level the playing field for women and people of color, given that such individuals have historically earned less than white men, perpetuating the wage gap even when these individuals move on to higher-paying positions.

Ban on Facial Recognition Technology Used During Job Interviews

With the passage of H.B. 1202, employers are prohibited from using certain facial recognition services during employment interviews, unless an applicant provides consent. Specifically, employers may not use a facial recognition service for the purpose of creating a “facial template,” defined as “the machine-interpretable pattern of facial features that is extracted from one or more images of an individual.” An applicant may consent to the use of facial recognition services by signing a waiver. Such a waiver must include:

• The applicant’s name,
• The date of the interview,
• That the applicant consents to the use of facial recognition during the interview, and
• Whether the applicant read the consent waiver.

While many employers may not yet be using facial recognition services during applicant interviews, it will be important to continue to monitor the development of such technology and its impact on the job interview process and the workplace at large.

Development of Heat Stress Standards by Commissioner of Labor and Industry

Pursuant to H.B. 722/S.B.434, the Commissioner of Labor and Industry will be required to develop and adopt regulations, on or before October 1, 2022, that require employers to protect employees from heat-related illness caused by heat stress. The Commissioner must do so in consultation with the Maryland Occupational Safety and Health Advisory Board.

A full list of the newly enacted laws can be found here. If you need any guidance on how to properly implement the legislation discussed herein in your workplace, please reach out to our labor and employment practice group for further assistance.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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