In 2008, the Maryland Legislature enacted several laws affecting the employment relationship. They include:
The Flexible Leave Act: The Flexible Leave Act requires employers who provide employees with paid leave (vacation, sick leave, or compensatory time) to permit employees to use that leave for the illness of a child, spouse, or parent. The law also contains anti-retaliation provisions that prohibit employers from discharging, demoting, suspending, disciplining or otherwise discriminating against any employee who exercises rights granted under the Act.
The law applies to employers who employ at least 15 employees and are engaged in business in the State. It took effect on October 1, 2008.
Unfortunately, the Act is very poorly drafted. It leaves many key terms undefined and many questions central to implementation unanswered, including:
- Who falls within the definition of child, spouse and parent;
- The nature and degree of illnesses covered;
- Whether it is necessary that the employee is needed to assist the child, spouse or parent in order to qualify for leave; and
- The extent to which conditions imposed by the employer’s policies or a collective bargaining agreement may be imposed. For example, if the policy requires advance approval of vacation leave and the option for the employer to deny leave if staffing requirements would not be met in the employee’s absence, can flexible sick leave be denied if it does not meet these requirements?
Once Maryland employers attempted to interpret and implement the Act, the problems caused by the lack of clarity readily became apparent. It is expected that employers and industry associations will seek legislation in the 2009 Legislative Session to modify the 2008 law to provide clarification and/or changes. In the alternative, it is possible that the Legislature will direct the state Department of Labor, Licensing & Regulation (“DLLR”) to develop regulations to clarify the requirements of the Act.
In the meantime, employers should attempt to comply with the law in good faith, using a reasonable definition of illness.
The Wage Disparity Reporting Act: This law requires employers to (a) keep such records as the state Labor Commissioner requires regarding the wages, job classifications, racial classification and gender of employees and “other conditions of employment”; and (b) make such reports as the Commissioner shall require based on these records.
On November 4, 2008, the Commissioner issued regulations defining the requirements under this Act. They require employers to record employees’ genders and racial classifications using the racial categories listed on the U.S. Equal Employment Opportunity Commission's EEO-1 Report (i.e., Hispanic/Latino or Black/African American, Native Hawaiian/other Pacific Islander, Asian, American Indian/Alaskan Native, White or “Two or more races”), to maintain these records for 3 years, and provide the records required the Commissioner upon request.
Existing law already requires employers to keep records of each employee’s name, address, occupation and rate of pay, the amount paid each pay period to the employee, and the hours that the employee works each day and workweek, and to maintain these records for a three-year period.
Payment of Wages on Termination: The Maryland Legislature also enacted a law related to employer policies regarding payment of unused paid time off at the time employees are terminated.
The Maryland Court of Special Appeals had held, in an unreported decision, that a leave policy that provided that employees who resigned without two weeks’ notice would not be paid for unused earned paid time off violated the Maryland Wage Payment & Collection law. Although unreported decisions have no precedential effect, this particular case had garnered widespread publicity, given the ubiquity of polices that would now be “in violation” of this new principle, and had evoked a change in policy guidance posted on the state DLLR website.
The new law clarifies that an employer is not required to pay accrued leave upon termination of employment if it has a written policy that so provides and the employer has notified the employee of leave benefits at commencement of employment. Unfortunately, this statute is not as well drafted as it should be – it leaves open the questions whether an employer may change its policy during the employee’s term of employment or whether a written policy enacted after the employee’s date of hire to codify the terms of the employer’s practice is effective. It is likely that there will be attempts to address these issues in the 2009 legislative session.
Limitations Period for State Court Discrimination Suits: In 2007, the Legislature enacted a provision providing for increased damages in suits under Article 49B, Maryland’s anti-discrimination statute applicable to employers with 15 or more employees, and permitting aggrieved employees and applicants to file suit in state circuit court, but it did not specify any limitations period for bringing such a claim. The 2008 Legislature passed legislation that requires that civil suits that are filed in state circuit court under Article 49B by an aggrieved employee or applicant must be filed within two years of the occurrence of the allegedly discriminatory action.
Neither of these laws affects employers who have less than 15 employers. These employers still may be sued in state court for employment discrimination under a wrongful discharge theory, and such suits may be initiated within three years of the allegedly discriminatory act.
Unemployment Benefits for Military Transfers: The legislature also enacted a provision that will permit military spouses to receive unemployment benefits if they leave a job because their military spouse is transferred. The new provision defines “valid circumstance for resignation” to include a spouse of a member of the military or of a civilian employee of the military or a federal agency involved in military operations leaving work if necessitated by the mandatory transfer of the spouse to a new location. In this situation the spouse would be eligible for unemployment benefits if unable to find work in the new location after a brief period of disqualification.
Brought to you by Jeanne Phelan at the law offices of