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2013 Maryland Legislation Roundup on Employment Law Matters

June 13, 2013

By: Melissa Calhoon Jones

In May 2013, Governor Martin O’Malley signed several significant employment-related statutes that will impact the majority of Maryland employers. The new laws, which take effect October 1, 2013, address: (1) protections for pregnant employees; (2) the ability of employees to obtain liens for unpaid wages; (3) leave during deployment of military family members; and (4) protected wages of tipped employees.

  1. Reasonable Accommodation Required for Employees Disabled by Pregnancy

Under a new pregnancy discrimination law, employers, upon request, must provide reasonable accommodation to employees disabled by pregnancy so long as the accommodation does not create an undue hardship.  Possible accommodations may include, but would not be 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 less strenuous or less hazardous position; or providing leave.

Note that the employer must transfer an employee to a less strenuous or less hazardous position as a reasonable accommodation only in two circumstances.  The first is if the employer has a policy, practice, or collective bargaining agreement requiring or authorizing the transfer of a temporarily disabled employee to a less strenuous or less hazardous position for the duration of the disability.  The second is if the employee’s health care provider recommends the transfer and the employer can provide the reasonable accommodation without: (1) creating additional employment that the employer would not otherwise have created; (2) discharging an employee; (3) transferring an employee with more seniority than the employee requesting the reasonable accommodation; or (4) promoting an employee who is not qualified to perform the job.

An employer may require an employee to provide a certification from the employee’s health care provider about the medical necessity of the reasonable accommodation if a certification is required for other temporary disabilities.  The certification should include the date the reasonable accommodation became medically advisable, the probable duration of the reasonable accommodation, and an explanation of the medical need for the reasonable accommodation.

This new anti-discrimination law also requires employers to post in a conspicuous location, and include as written policy in any employee handbook, information concerning an employee’s right to reasonable accommodations and leave for a disability caused or contributed to by pregnancy.

The law applies to any employer that is: (1) engaged in an industry or business and (2) has 15 or more employees for each working day in each of the 20 or more calendar weeks in the current or preceding calendar year.

This law creates rights to reasonable accommodation for covered employees that are similar to those under the Americans with Disabilities Act and employers should respond to requests for accommodation under this new law cautiously with advice from employment counsel.

  1. Unpaid Wage Lien Law

Under this new law, employees may place a wage lien on the property of their employer for unpaid wages.  Currently, under Maryland’s Wage Payment and Collection Law, an employee can file suit for unpaid wages and if there is no bona fide dispute that the wages are owed, the court may award treble damages and attorney’s fees to the employee.  This new law provides a mechanism for employees to obtain a lien for unpaid wages on an employer’s real or personal property before a lawsuit is filed.

To establish a lien, an employee must first provide written notice to the employer of the wages claimed and identify the property against which the lien for unpaid wages is sought.  An employer may dispute the lien by filing a complaint in circuit court within 30 days of service of the lien setting forth its defenses. A lien will be automatically established if the employer does not file a complaint within 30 days of service of the lien.  Thus, employers must act expeditiously when a notice of lien is received.

The law creates an expedited process in which the court must determine whether to issue an order establishing the lien within 45 days after the date on which the complaint was filed.  If the court issues an order to establish the lien, the employee is entitled to court costs and reasonable attorneys’ fees. If, however, the court determines the lien was frivolously filed or made in bad faith, the court may award court costs and reasonable attorneys’ fees to the employer. 

An employer cannot require an employee to agree to waive the right to seek the establishment of a lien for unpaid wages.  In addition, a provision in a written agreement between an employer and an employee that conditions payment on receipt by the employer of payment from a third party will not waive the right of an employee to seek a lien for unpaid wages. Such provisions will be void.  

The Maryland Department of Labor, Licensing and Regulation (“MDLLR”) must adopt regulations to establish the content of the Notice, Complaint, and Wage Lien Statement. Presumably, MDLLR will implement the necessary regulations soon after the law takes effect.

  1. Leave for Deployment or Return of Military Family Members

The new deployment leave law authorizes an employee to take leave from work on the day that an immediate family member (i.e., spouse, parent, stepparent, child, stepchild, or sibling) is leaving for, or returning from, active duty outside the United States as a member of the armed forces. An employer may not require an employee to use compensatory, sick, or vacation leave when taking leave under this law. An employer may, however, require the employee to provide proof that the leave is being taken for this purpose.

The new law applies to employers who are engaged in a business, industry, profession, trade, or other enterprise in the state and who employ 50 or more individuals.  To be eligible, employees must have worked for the employer for at least 12 months and for at least 1,250 hours in the past 12 months

This law is similar to the Family Medical Leave Act’s (“FMLA”) qualified exigency leave provision, but would allow employees who have exhausted, or are not eligible for, FMLA leave to take leave for this limited purpose.

  1. Tipped Employees: No Deductions for “Dine and Dash”

The new tipped employee law prohibits an employer from requiring a tipped employee to reimburse or pay to the employer an amount equivalent to a customer’s bill for food or beverages if the customer leaves the employer’s business without paying.  An employer also may not make a similar deduction from the wage of a tipped employee.

A “tipped employee” means an employee who is engaged in an occupation in which the employee customarily and regularly receives more than $30 each month in tips or gratuities.

Under the new law, the employer must also post a printed notice of the law in each work location where tipped employees are employed.  The posting must be in a form established by MDLLR.  The MDLLR will most likely develop and distribute the necessary form soon after the law takes effect.

CONCLUSION

Employers in Maryland should familiarize themselves with these new laws and speak with their employment counsel regarding how these laws may impact their business.  In addition, employers should monitor the MDLLR’s website for new regulations in support of these laws.

Melissa Jones counsels companies on labor, employment, and immigration matters.  If you would like further information, please contact Ms. Jones via email.

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