United States: Key Legislation Emerging From Maryland And Local Ordinances To Remember

Last Updated: June 11 2019
Article by Steven Kaplan and Alexander T. MacDonald

In Maryland this year, spring brings warm weather and new employment laws. The General Assembly passed, and Governor Larry Hogan signed, several new laws regulating the workplace. These laws increase the minimum wage, remove a key overtime exemption, expand liability for "harassment," restrict noncompete agreements, and prolong the time to file a discrimination charge.

Minimum Wage – ("Fight for $15")

The Fight for Fifteen law does more than simply increase the state's minimum wage. Most significantly, the law removes the amusement or recreational establishment overtime exemption, an exemption under the federal Fair Labor Standards Act. This means that, as of June 1, 2019, employers in Maryland relying on this exemption for this summer must immediately make changes in how they pay this group of seasonal employees.

For large employers, defined as employees with 15 or more employees, this law increases the state minimum wage by $0.75 each January 1, until it reaches $15.00 per hour on January 1, 2025. Specifically, the scheduled for the rate increases is, as follows:

  • January 1, 2020: $11.00
  • January 1, 2021: $11.75
  • January 1, 2022: $12.50
  • January 1, 2023: $13.25
  • January 1, 2024: $14.00
  • January 1, 2025: $15.00

For employers with 14 or fewer employees, the schedule for the rate of increase is:

  • January 1, 2020: $11.00
  • January 1, 2021: $11.60
  • January 1, 2022: $12.20
  • January 1, 2023: $12.80
  • January 1, 2024: $13.40
  • January 1, 2025: $14.00
  • January 1, 2026: $14.60

For those employers that operate in Montgomery County and Prince George's County, the minimum wage is $12.00 (50 employees or less) or $12.25 (51 employees or more) and $11.50, respectively. The minimum wage and rate increases in Montgomery County are far quicker for the new Maryland law.

Also, remember that, as the minimum wage increases each year, employers are required to update their labor posters. For additional information on the state's and county's minimum wages, the Maryland Department of Labor, Licensing, and Regulation provides frequent updates. Additional information can be found here: https://www.dllr.state.md.us/labor/wages/wagehrfacts.shtml

General Assembly Bars Noncompetes for Lower-Wage Employees

The Noncompete and Conflict of Interest Law, which takes effect on October 1, 2019, eliminates noncompete agreements for low-wage workers (as defined by the new law). Specifically, the law restricts an employer from impeding the "ability of an employee to enter into employment with a new employer or to become self-employed in the same or similar business" and makes such agreements "null and void" whenever the employee earns $15.00 an hour or $31,200 a year or less. This restriction applies even if the parties entered the agreement in a different state. Notably, however, the law continues to expressly permit employers to protect their "client list or other proprietary client-related information."

The law's relatively low wage levels should limit its impact. As discussed above, just last month the General Assembly overrode Governor Hogan's veto to raise the state minimum wage to $15.00 an hour. That increase will be fully implemented in 2025. By then, any full-time employees making more than the minimum wage will earn more than HB 38's wage levels.

The bill comes as other states are also limiting noncompete agreements for lower-level earners. For example, Massachusetts recently banned noncompete agreements for employees classified as nonexempt under the Fair Labor Standards Act.1 Illinois and New Jersey have taken similar steps.2 At the federal level, Senator Marco Rubio introduced legislation in January that would have the same effect.3 Maryland may therefore be at the leading edge of a nationwide trend toward eliminating noncompetes for lower-wage employees.

Maryland Expands Liability for "Harassment" and other changes to Maryland's anti-Discrimination Statute

The Maryland General Assembly made several key changes to Maryland's anti-discrimination statute. First, independent contractors are now counted as "employees," and may file a claim for discrimination.

Second, for the first time, the law now expressly prohibits "harassment." Since the Maryland courts already protected employees from harassment, however, it is not clear why the General Assembly believed it was necessary to expressly include harassment under the law. Notably, however, an employer can be now be liable "if the negligence of the employer led to the harassment or continuation of harassment." It is not clear from the law whether this negligence standard merely codifies a form of the Farragher/Ellerth defense, or whether courts must now have additional measures in place to avoid liability.

Third, the law gives employees more time to file a harassment charge, as compared to any other charge alleging discrimination. Under current law, an employee must file a complaint within six months of the alleged discrimination. This new law, however, gives the employee two years to file a harassment charge—four times as long. Relatedly, the bill also extends the period of time to file a civil action from two years to three years, but, again, only for harassment claims.

Fourth, the law expands the range of liable "employers." Currently, a company must employ at least 15 employees over the last 20 weeks to qualify. But for harassment complaints only, the law reduces that number to one. So, a company employing at least one person can be held liable for harassment, but not for discrimination.

Claimants Get More Time to File

In a separate law, Maryland extended the deadline to file non-harassment discrimination claims from six months to 300 days. It also allows employees complaining about discriminatory pay practices to file within 300 days of the date they knew or should have known about the alleged discriminatory practice—as opposed to the date of the practice itself.

The Maryland Department of Labor, Licensing, and Regulation (DLLR) gets a Face Lift

As of July 1, 2019, the Maryland Department of Labor, Licensing, and Regulation, or "DLLR" as it is affectionately referred to, will changed its name to the Department of Labor.

Governor Hogan Vetoes Maryland "Ban the Box"

This spring, Governor Hogan vetoed the Criminal Record Screening Practices Act (or "ban-the-box" law), which would have prohibited employers from asking about an applicant's criminal record until the first in-person interview, with some limited exceptions.

It is still important to remember that Montgomery County and Baltimore City have enacted their own versions of ban-the-box ordinances. Under Montgomery County's ordinance, an employer may not inquire into an applicant's criminal record until after the conclusion of a first interview. In Baltimore City, an employer may not inquire into an applicant's criminal record until after the employer extends a conditional offer of employment to the applicant.

Lactation Accommodation in the Workplace – Baltimore City Only

Employers with two or more full-time employees must provide both a reasonable amount of break time and a location for employees to express breast milk. The local ordinance also requires employers to maintain a formal written policy and, if the employer has an employee handbook, the policy musts be included in the handbook. Moreover, the employer must distribute the policy to all employees "upon their hire" and, again, "within 10 calendar days of any modification to the policy." If any employee inquires about pregnancy or parental leave, the employer is also required to, once again, offer a copy of the lactation accommodation policy to the employee.

Further, the ordinance requires that employers retain all requests for lactation accommodations for three years from the date of each request, including the name of the employee, the date of the initial request and any update, a copy of all correspondence (written or digital) between the employer and employee regarding the request, and a description of how the request was resolved.

Recommendation

Employers should consider reviewing their hiring practices and employment agreements to ensure they comply with Maryland law, including local ordinances enacted by the various counties. They should also consider revisiting their anti-harassment training to ensure they stay on the right side of Maryland's new prohibitions.

Footnotes

1 Mass. Gen. Laws ch. 228, § 21.

2 See S.B. 3163 (Ill. 2017) (effective Jan. 1, 2017); A. 1769, 218th Legis. (N.J. 2018).

3 Freedom to Compete Act, S. 124, 116th Cong. (2019).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions