Recently, while attention has understandably been focused on employment issues arising out of the COVID-19 pandemic, the Maryland legislature has passed several non-pandemic pro-employee laws that were not vetoed by Governor Larry Hogan. All of these laws become effective on October 1, 2020.
A Mandatory Mini-WARN Act
The Maryland Economic Stabilization Act currently provides for voluntary notification if employers intend to implement a reduction in operations. The new revised law HB 1018/SB 780 applies to employers that employ at least 50 employees and operate an industrial, commercial, or business enterprise in the state. Such employers must give at least 60 days’ written notice of a “reduction in operations,” which includes (1) the relocation of a part of an employer’s operation from one workplace to another existing or proposed site; or (2) the shut down of a workplace or a portion of the operations of a workplace that reduces the number of employees by at least 25 percent or 15 employees, whichever is greater, over any 3–month period.
A “workplace” includes a factory, plant, office, or other facilities where employees produce goods or provide services, but does not include a construction site or other temporary workplace.
The law does not apply to reductions in operations if the reduction: (1) results solely from labor disputes; (2) occurs in a commercial, industrial, or agricultural enterprise operated by th[e] State or its political subdivisions; (3) occurs at construction sites or other temporary workplaces; (4) results from seasonal factors that are determined by the Department of Labor to be customary in the industry; or (5) results when an employer files for bankruptcy under federal bankruptcy laws. It is noteworthy that, unlike the federal WARN Act, the Maryland law does not include unforeseen business circumstances or faltering business exemptions and does not otherwise address reductions in operations caused by a pandemic.
An Onerous Salary History Law
The Maryland legislature also passed HB123 that prohibits employers from seeking the wage history for an applicant orally, in writing, or through an employee or an agent or from a current or former employer. Employers will not be permitted to rely on an applicant’s wage history to screen the applicant, consider the applicant for employment, or determine his or her wages.
The law does not prohibit an applicant from voluntarily sharing wage history information with an employer. And, after an initial employment offer with a compensation proposal has been made, the employer may rely on the voluntarily-provided wage history information to support a higher wage offer or seek to confirm the wage history information to support a higher wage offer.
One unique aspect of the law is that it requires an employer, on request, to provide an applicant the wage range for the position for which the applicant applied.
A Ban on Hairstyle Discrimination
Maryland will join the growing number of states that include hairstyle discrimination in their definition of race discrimination. The new law HB 1444/SB 531 amends the Maryland Fair Employment Practices Act to prohibit discrimination based on “traits historically associated race, including hair texture, afro hairstyles, and protective hairstyles.” A “protective hairstyle” includes “braids, twists, and locks.”
Prohibition Against Using Facial Recognition Technology
Finally, a new law HB 1202 prohibits employers from “us[ing] a facial recognition service for the purpose of creating a facial template during an applicant’s interview for employment,” unless the applicant consents. According to the Act, a “facial recognition service” is “technology that analyzes facial features and is used for recognition or persistent tracking of individuals in still or video images.” “Facial template” is defined as “the machine-interpretable pattern of facial features that is extracted from one or more images of an individual by a facial recognition service.”
An applicant may consent to the use of facial recognition service technology during an interview by signing a waiver that states in plain language 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.