News - PGAMA.COM

Maryland Legislative Forecast 2019

Maryland will once again be governed under the executive leadership of Governor Larry Hogan and Lt. Governor Boyd Rutherford. Following his historic victory in November, Governor Hogan became only the second Republican Governor of Maryland in nearly 50 years.

While the state will remain under the governance of a Republican Governor, Maryland’s General Assembly will retain a stronger Democratic dominance in both the House and Senate Chambers. In total, the state legislature will witness a nearly 40% turnover of new lawmakers, predominantly made up by progressive democrats. The surge of progressive lawmakers in the legislature (and in leadership) will ultimately result in an aggressive “push” for more liberal-leaning public policy agenda. This could include perennial legislation, such as the “Fight for Fifteen” Minimum Wage Increase and “Restrictive” Scheduling, which would impact PGAMA and businesses, statewide.

If you may recall, the “Fight for Fifteen” would mandate an increase in the state’s minimum wage to fifteen dollars ($15.00) over a period of time. “Restrictive” Scheduling would mandate certain employers to provide their employees a set work schedule 21 days in advance. Should a schedule be modified, resulting in an impact against the employee, an employer would be required to provide additional compensation to the employee. While these bills have not yet been introduced, PGAMA anticipates these bills to be reintroduced this year. Moreover, PGAMA anticipates the re-introduction of legislation, including Pay Scales and Wage History Information, Association Healthcare Plans, and public policy directed toward workforce development, adult learning, and registered apprenticeships.

In the weeks leading up to the commencement of 2019 session, PGAMA began to review the list of pre-filed bills by members in the House and Senate. Over 120 bills have already been introduced, with many having the potential to be of interest for PGAMA’s monitoring and advocacy throughout 90-day session.

Criminal Expungements:

Thus far, three criminal expungement bills have been filed in the House Chamber, these include House Bill 13, 16, and 19. Both House Bill 13 and 16, would permit an individual to petition the court for a partial expungement under specific circumstances. House Bill 19 would authorize a person to file a petition for expungement of a certain record if the person was convicted of a nonviolent crime.

Corporate Income Tax – Reduction:

Senate Bill 37, entitled Corporate Income Tax – Rate Reduction, would reduce the State income tax rate on the Maryland taxable income of corporations over a period of time. If passed, the State income taxable rate on corporations’ taxable income would be reduced to seven percent (7%) after the year 2020.

Sick Leave – Modification:

PGAMA (and its members) are not unfamiliar with the controversial legislation, known as the Maryland Healthy Working Families Act. Following Governor Hogan’s veto in the Spring of 2017, the General Assembly overrode the veto during the early weeks of the 2018 session – the law took effect 90-days thereafter. The law generated debate between employees, the business community, and legislators on both sides of the aisle and remains a sensitive topic in Annapolis.

Despite many in disagreement with various provisions in the law, both sides agree that it needs further modifications - Senate Bill 38 is reopening that discussion this year. If passed Senate Bill 38 would exempt, from certain provisions of the law, specific employees who regularly work at facilities at which the employers offer the employees access to certain on-site health clinics.

Should any of these bills (and/or others) begin to move forward, PGAMA will take positions and possibly seek membership “Call to Action” in Annapolis.

One of the new initiatives PGAMA has developed is a legislative conference call for members. Alexander & Cleaver’s Government Relations’ team will provide their unique insight and expertise as to various issues that they anticipate to encounter on behalf of our industry and clients. We strongly encourage you to take advantage of this opportunity to hear from these consultants and have a Q &A session at the conclusion of the call. The first day of the session begins on Wednesday, January 9^th, so be on the lookout for a follow notification regarding the details on how to participate on the conference call.

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.

Industry News

Homepage News

PGAMA is here to help.

The Kirwan Commission Update

Dell Joins PIA National Buying Program

For RACG Members

PGAMA Acquires PrintED

Wage & Benefit Survey 2019

Important Update: Excellence in Print 2020

Maryland's Paid Sick Leave Law

What's New in 2019? Tax Guide

Maryland Legislative Forecast 2019

SGIA Trends Report

MD: Disclosing Sexual Harassment Act

Our Offices Have Moved

Hurricane Preparedness

More Articles ...

PGAMA Upcoming Events

Customer Service Workshop

AGS Open House

Mail Design Workshop

Mail Design Workshop

International Print Day

Mail Design Workshop

Mail Design Workshop

VA Mingle Jingle

MD Mingle Jingle

Search Articles

Contact

Support and Help

Stay Connected

Login Form