The following new employment law provisions about which employers should be aware become effective Oct. 1, 2013, for employers with employees who work or are sited in Maryland. These laws relate to accommodations for pregnant employees, institute state leave for employees with immediate family members in the armed services, establish a mechanism for employees to obtain liens for unpaid wages and prevent employers from requiring tipped employees to pay when their customers “dine and dash.”
Accommodations For Pregnant Employees
(Md. Code Ann., State Gov’t § 20-609)
The Maryland Human Relations Act has been amended to require employers to explore all possible means of providing a reasonable accommodation to an employee with a disability caused or contributed to by pregnancy or childbirth, so long as the accommodation does not impose an undue hardship on the employer. Possible accommodations include, but are not limited to:
- 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 hazardous position during the pregnancy; or
- Providing leave.
Significantly, the law requires an employer to transfer an employee to a less strenuous or hazardous position if: (a) the employer has a policy, practice or collective bargaining agreement that requires or authorizes the transfer of a temporarily disabled employee to such a position for the duration of a temporary disability; or (b) the employee’s healthcare provider advises the change, and the employer can provide such an accommodation without (1) creating additional jobs that the employer would not have otherwise created, (2) discharging any employee, (3) transferring an employee with more seniority or (4) promoting an employee who is not qualified for the job.
Employers may require medical certifications to the same extent that such a certification is required for other temporary disabilities. A requested certification must include: (i) the date the reasonable accommodation became medically advisable; (ii) the probable duration; and (iii) an explanation as to the medical advisability of the accommodation.
The law also requires that an employer post a notice and include in its handbook information concerning an employee’s rights to reasonable accommodations and leave for a disability caused or contributed to by pregnancy. The Maryland Commission on Civil Rights (the Commission) has not yet developed a poster for the notice. However, the Commission has advised that employers may create their own posters that track the language of the statute.
Liens For Unpaid Wages
(Md. Code Ann., Lab. & Empl. § 3-1101 et seq.)
Another new Maryland law creates a mechanism for employees or the Maryland Commissioner of Labor and Industry to establish a lien for unpaid wages (not including commissions) against an employer’s real or personal property before a lawsuit is filed. Like other wage and hour laws, the definition of employer is not limited to entities, such that individuals may be liable.
In order to establish a lien, the employee must first formally serve the employer (in accordance with the Maryland Rules) with written notice of the wages claimed and the property against which the lien for unpaid wages is sought. The statute requires that the Commission create a form.
In order to dispute the claim and prevent the automatic imposition of a lien, the employer must file a complaint in circuit court within 30 days of service that includes the names of the employer and employee, a copy of the notice, a statement of any defense to the lien and an affidavit containing a statement of facts in support. The employer or employee may also request an evidentiary hearing. Within 45 days after the filing of the complaint, the court will determine whether to issue an order establishing the lien. The burden of proof remains with the employee to establish the lien. If an employer fails to file such a complaint within 30 days, a lien will be automatically established.
The rights and remedies under the statute cannot be waived by contract or agreement between the employer and employee. However, employers are protected from frivolous or bad faith filings through the imposition of court costs and reasonable attorney’s fees on such filers.
Leave For Deployments of Family Members
(Md. Code Ann., Lab. & Empl. § 3-803)
Maryland’s new deployment law authorizes certain employees to take leave from work on the day that an immediate family member is leaving for or returning from active duty outside the United States as a member of the armed forces.
The law applies to employers with 50 or more employees and to full- or part-time employees who have worked for the employer for a minimum of 12 months and worked at least 1,250 hours in the prior 12-month period. Immediate family members under the law include a spouse, parent, stepparent, child, stepchild or sibling.
Employers may not require the employee to use any compensatory, sick or vacation time when the employee takes leave under this new law. An employer may, however, require documentation that leave qualifies for this exception.
Deductions From Tipped Employees
(Md. Code Ann, Lab. & Empl. § 3-713)
A new Maryland tipped employee law applies to any employee who “customarily and regularly receives more than $30.00 each month in tips or gratuities.” The law prevents employers from requiring that employees reimburse the employer or deduct from employees’ pay the charges for what is commonly referred to as a “dine and dash,” where a customer leaves without paying for his or her food and drinks.
The statute also requires that employers post a notice in a form required by the Maryland Commission of Labor and Licensing. The Commission has yet to provide such a poster. However, employers can post a notice containing the provisions of the section.
For questions regarding the new Maryland statutes or in reviewing, revising or implementing information disclosures and policies for covered Maryland employees, please contact the authors or any other members of the McGuireWoods Labor and Employment group.