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Legal & Legislative Updates

    SAVE THE DATE: 2020 CVSHRM LEGAL & LEGISLATIVE CONFERENCE FRIDAY, OCTOBER 23, 2020

    February 2020 L&L Updates

     

    Maryland Ban the Box Law Becomes Effective February 29, 2020

    On January 30, 2020, the Maryland General Assembly voted to override Governor Hogan’s veto of the 2019 SB839 (“Ban the Box”) that states all employers with 15 or more employees are prohibited from asking applicants about their criminal background or criminal accusations before the first in-person interview.   The bill eliminates the criminal history question on job applications but allows employers to require applicants to disclose criminal records during the first in-person interview.  

    The Bill does not (1) prohibit an employer from making an inquiry or taking other action that the employers is required to take or is expressly authorized to take by another applicable Federal or State law; or (2) apply to an employer that provides programs, services, or direct care to minors or to vulnerable adults.”  Employers may not “retaliate or discriminate” against applicants or employees claiming violations of the Act.

    The Bill does not preempt a local jurisdiction from enacting or enforcing laws that are more restrictive of employers in the local jurisdiction.  In other words, employers in Baltimore City, Montgomery County and Prince George’s County all must comply with the more restrictive local Ban the Box laws.  Federal contractors will also need to comply with the more restrictive Fair Chance Act effective December 20, 2021. 

    There is a fine up to $300 per incident for noncompliance.

     

    ******HB 126/SB 846Peace Orders -  Workplace Violence bill was passed unanimously by the House (130-0) on February 13.   Christine Walters, Greta Engle and myself testified before the House Judiciary committee with the sponsor Del. Atterbeary in support of the bill.  The Md Hospital Association and Md Nurses Association also testified in support of the bill.  SB 846 (Senator Sydnor)  - The Senate Judicial Proceedings committee is scheduled to hear testimony on the crossfiled bill on March 11 at 12:00pm.   Christine, Greta and I will be joined by Christine Miller and Joseph Pettiford to testify in support of the bill. 

    Please reach out to your Senators who are on the JPR committee and ask for their favorable vote of SB 846!!!  And share with your  A-Team members

    Click here for committee members  http://mgaleg.maryland.gov/mgawebsite/Committees/Details?cmte=jpr

     

    DRAFT | ACTION ALERT | HB 839, SB 539 Establishing a Family & Medical Leave Insurance Program

    Hearings have been scheduled in both the House and Senate next week on HB 839 and SB 539, legislation that would establish a Family & Medical Leave Insurance (FAMLI) Program.

    The program generally provides up to 12 weeks of benefits to an employee who is taking partially paid or unpaid leave for the following reasons: 1) to care for a child during the first year after the child’s birth or after the placement of the child through foster care or adoption; 2) to care for a family member with a serious health condition, 3) because the employee has a health condition that results in their being unable to perform the functions of their job, 4) to care for a service member who is the employee’s next of kin, or 5) because the employee has an exigency arising out of the deployment of a service member who is a family member.

    The bill establishes the FAMLI Fund, which will consist of contributions from employees, employers and self-employed individuals. Beginning January 1, 2021, each employee, employer and self-employed individual shall contribute to the fund. The total rate of contribution: 1) may not exceed 0.5% of an employee’s wages, 2) shall be applied to all wages up to and including the Social Security wage base, 3) shall be shared equally by employers and employees, and 4) shall be sufficient to fund the benefits payable.

    There are any number of additional nuances and complexities outlined in the language, and the Chamber is very concerned that the implementation of this legislation will result in additional costs and administrative burden to employers, and in particular small businesses. Through our MDCC Paid Family & Medical Leave Work Group, the Chamber has attempted to work with the advocates for this program to outline our concerns and encourage changes to the bill. Unfortunately, these changes, some of which help the bill more closely align with federal law and seek to address some of the challenges for small businesses, were not accepted. The Chamber will continue to work with stakeholders toward a better outcome on this issue.  A comprehensive list of our main concerns is outlined below.

    • HB 839 has a hearing scheduled in the House Economic Matters Committee on Monday, February 24, at 1 p.m.
    • SB 539 has a hearing scheduled in the Senate Finance Committee on Thursday, February 27, at 1 p.m.

    In advance of these hearings, we would urge you to contact your legislators to share your concerns with the bill.  If you wish to participate in either hearing in opposition, please contact Ashley Duckman (aduckman@mdchamber.org).

    Cost impact, particularly for small businesses and non-profits

    • The bill establishes the FAMLI Fund, which will consist of contributions from employees, employers and self-employed individuals. Beginning January 1, 2021, each employee, employer and self-employed individual shall contribute to the fund. The total rate of contribution: 1) may not exceed 0.5% of an employee’s wages, 2) shall be applied to all wages up to and including the Social Security wage base, 3) shall be shared equally by employers and employees, and 4) shall be sufficient to fund the benefits payable.
      • The cost to employers presents additional financial strain to already burdened businesses.
      • Mandated employer contributions are an additional financial demand that small businesses and non-profits simply cannot afford, particularly given the layering of other employer mandates (sick and safe leave, $15 minimum wage) that Maryland has implemented in the recent past.

    Definitions of eligibility

    • The definitions contained in the bill language are far broader than what are outlined by FMLA.
    • It will undoubtedly be complex and challenging to administer and comply with two vastly different sets of definitions for eligibility.
    • Through the Chamber’s PMFL working group, we drafted changes that attempted to bridge this gap and bring the definitions into line with federal law.  Those changes have not yet been addressed and/or accepted by bill sponsors.

    Length of leave—up to 24 weeks

    • The bill does not clarify whether or not this program is meant to provide wage replacement for leave to which an employee is already entitled, or if it is meant to apply to a separate bank of leave, leaving the door open to the possibility that an employee could be eligible for up to 24 weeks of paid leave.
    • Having an employee out for that length of time presents innumerable challenges for a business in terms of productivity and for the other employees who are left to fill in the gaps.

    Verification/Abuse

    • Verification and abuse of benefits are already a major challenge for employers as it relates to the implementation of the sick and safe mandate.  This program, as written, would exacerbate those challenges.

    Implementation/Administrative Complexity

    • The bill would require large-scale tracking and verification systems to ensure compliance; Employers would be left to create, manage and administer obtuse tracking systems;  Many employers do not have this internal capability and would incur additional costs if they are required to contract out that responsibility.

    Communication              

    • The bill language is unclear on how these benefits would be communicated to employees—i.e. is this done annually based on a specific date or based on an employee’s hire-date?  Communicating eligibility, separate and apart from FMLA, will be a challenge—particularly if you are a business where your employees do not all report to a central location.

    Uncertainty of Benefits

    • This is not a predictable benefit like sick and safe leave;  Not all employees can plan for or predict a benefit they may never use.

    Alternative Planning

    • Private, elective options already exist (i.e. short term disability).
    • Legality of UI’s role in Administration of the Program
    • The UI program was administered using federal funding (FUTA Tax), which includes the salary of the staff of the UI Division, office space, fees and equipment.

     

    Thanks,

     

    Tracey

     

    Tracey Eberling

    Member
    Steptoe & Johnson PLLC

    1250 Edwin Miller Boulevard, Suite 300
    Martinsburg, WV 25404

    O: 304-262-3532 F: 304-933-8748 C: 240-626-1042 

    tracey.eberling@steptoe-johnson.com
    www.steptoe-johnson.com