MD: Disclosing Sexual Harassment Act

Maryland's "Disclosing Sexual Harassment in the Workplace Act of 2018" took effect on October 1, 2018. The Act prohibits certain waivers related to an employee's future sexual harassment claims and future retaliation claims for making a sexual harassment claim. It also requires employers with at least 50 employees to complete a survey disclosing the number of sexual harassment settlements in which the employer has entered.
The Act passed the Maryland General Assembly nearly unanimously and was signed into law by Governor Larry Hogan in May.
Restrictions on Agreements
The Act specifies that, effective October 1, 2018:
*       Except as prohibited by federal law, any provision in an employment contract, policy, or agreement that waives any "substantive or procedural right or remedy to a claim that accrues in the future of sexual harassment or retaliation for reporting or asserting a right or remedy based on sexual harassment" is null and void.
*       Employers may not discharge, suspend, demote, discriminate against, or otherwise retaliate against an employee who refuses or fails to enter into an agreement that contains a waiver that is void under the Act.
*       An employer who enforces or attempts to enforce a provision that violates the Act will be liable for the employee's reasonable attorney's fees and costs.
Possible Preemption of the Act as it Relates to Arbitration Clauses
The Act raises many questions. The most significant may be regarding the Act's restrictions on waivers in employment agreements and the effect the Federal Arbitration Act (FAA) may have on it and an employer's ability to require mandatory arbitration of future sexual harassment and retaliation claims.
Although the Act prohibits agreements that waive substantive and procedural rights or remedies for future sexual harassment and retaliation claims (which would appear to include pre-dispute mandatory arbitration agreements), the Act includes a carve-out: "except as prohibited by federal law." In AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), and Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018), the U.S. Supreme Court held that the FAA strongly favors the enforcement of arbitration agreements. Thus, if an employee agreement contains a mandatory arbitration clause covered by the FAA, then the FAA may preempt the new Maryland statute. This means the arbitration clause would be in effect and would not be void.
In the event an arbitration clause is not preempted by the FAA and, therefore, is considered null and void under the Act as it relates to future sexual harassment claims, an employer faces the prospect of parallel proceedings in different forums. For example, assume, as is often the case, that an employee entered into an agreement that requires arbitration of all future claims, including sexual harassment claims, race discrimination claims, and sex discrimination claims. The Act purports to ban such an arbitration clause only as it applies to the future sexual harassment claims. Thus, if the employee later asserts claims of sexual harassment, race discrimination, and sex discrimination, the employer could not require arbitration of the sexual harassment claims, which would be litigated in court instead, but theoretically could require arbitration of the race and sex discrimination claims.
Other Implications of the Act's Restrictions on Waivers in Employment Agreements
The Act likely prohibits other types of provisions commonly included in employee agreements, such as jury waivers, statute of limitations restrictions, and limitations on remedies. However, the Act imposes only restrictions on waivers relating to future claims of sexual harassment and retaliation and, therefore, does not prevent employers from settling sexual harassment or retaliation claims that have accrued as of the date of a settlement agreement. The Act also does not appear to invalidate past sexual harassment or retaliation settlement agreements.
Although the Act does not take effect until October 1, 2018, it applies to any agreement "executed, implicitly or explicitly extended, or renewed on or after" that date. It is unclear under what circumstances employment agreements for at-will employees that were entered into prior to October 1, 2018, will be considered to have been "implicitly" extended after that date. For example, it is unclear whether an at-will employment agreement will be considered to have been "implicitly extended" after October 1 simply by an employer continuing an at-will employment relationship with an employee beyond that date.
The Act also does not define "sexual harassment" and in some cases it may not be clear whether the Act applies.
Survey Requirements
The Act also requires employers with at least 50 employees to submit a survey to the Maryland Commission on Civil Rights (MCCR). The survey must contain:
1.     The number of settlements made by or on behalf of the employer of an allegation of sexual harassment by an employee;
2.     The number of times the employer paid a settlement to resolve a sexual harassment allegation against the same employee over the past 10 years of employment; and
3.     The number of settlements made of an allegation of sexual harassment that included a confidentiality provision.
This information must be submitted on or before July 1, 2020, and again two years later (on or before July 1, 2022).
The MCCR will publish the aggregate results of the survey online. The MCCR will make available for public inspection, upon request, the results from a specific employer regarding the number of times the employer paid a settlement to resolve a sexual harassment allegation against the same employee over the past 10 years of employment.
Who is considered an "employee," for purposes of meeting the 50-employee threshold under the survey reporting requirements, is also an open issue under the Act.
Next
Employers should review their current policies and employment agreements carefully with labor and employment counsel to determine compliance with the Act. Employers also should consult with their labor and employment counsel regarding the various issues raised by the Act and obtain guidance regarding meeting the requirements of the statute.
Employers with at least 50 employees should create a system for tracking sexual harassment settlements in order to meet the Act's reporting requirements.
In addition, multistate employers should consider that other states (e.g., New York and Washington) have enacted similar laws. Likewise, federal and state legislatures are considering similar measures.

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Vincent Allen, SVP at USI and long-time PGAMA member has provided the following guidance for keeping your business and employees safe during this major weather event.  If you need further assistance, please contact Vincent at 571-369-5114, mobile: 240-271-2516 or This email address is being protected from spambots. You need JavaScript enabled to view it.

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Supreme Court Ruling

Printing Industries of America (PIA) recently released a statement about the Supreme Court ruling in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. In the statement below, PIA provides an explanation of how it could impact printers regarding their right to refuse service to a customer.

On Monday, the United States Supreme Court decided that a Colorado baker had the right to refuse service to customers based on his sincerely held religious beliefs. The Court very specifically based its decision on the fact that the Colorado Civil Rights Commission did not fairly and impartially enforce Colorado's anti-discrimination law that bars discrimination against sexual orientation and religion.

Because the Court's decision is quite narrow, it does not provide carte blanche permission to refuse service in the name of religious freedom pursuant to the First Amendment. The Court limited the breadth of its decision to occasions when there is a demonstrated failure to remain neutral when weighing civil rights against the free exercise of religion. Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, Slip Opinion No. 16-111 (U.S.S.C. June 4, 2018).

For printers, the question about whether a company can refuse a customer's business arises most commonly in the context of doing work for controversial customers or on controversial subjects. The first step is to consider whether the customer is in a class protected by the Civil Rights Act, the Americans with Disabilities Act, or the Age Discrimination in Employment Act. These statutes prohibit discrimination based on race, religion, gender, sexual orientation, national origin, age, and mental or physical disability, and customers who are refused service based on these characteristics could sue and may win a judgment against the printer.

If the customer is not in a protected class, then the printer may refuse service. For example, if the customer wanted the printer to create packaging for a product that had been tested on animals, and the printing company does not want the job due to that practice, the printer can refuse service because companies that use animal testing do not fall within a protected class.

For questions on this issue, contact Printing Industries of America's Director of Human Relations, Adriane Harrison, for assistance at 412-259-1707 or This email address is being protected from spambots. You need JavaScript enabled to view it..

Source: Printing Industries of America. 

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Paid Sick Leave FAQs

Do you have questions about the Maryland Healthy Working Families Act?  These recently published FAQs should help answer some of them. 

Paid Sick Leave FAQ

Sick Leave Act

NUMBER OF HOURS ACCRUED

Type of leave and accrual of leave is determined by the type of business, the number of employees an employer has, and the number of hours an employee works. An employer may use an existing leave policy if the employer offers a paid time off policy that meets or exceeds the accrual and usage requirements of this Act. An employer may award the full amount of sick and safe leave an employee would earn at the beginning of each year rather than awarding leave as it accrues. Employers are not required to pay out accrued leave upon the employee’s dismissal from employment. See the following chart for a breakdown of exemptions and leave accrual for certain employees.