Welcome to the HoCoHRS Legislative Affairs webpage! Here you will find information about the HR policy issues HoCoHRS is monitoring every month.
We understand how vital you are to the development and implementation of sound HR practices and procedures. For that reason, HoCoHRS is dedicated to bringing you timely updates on key legislative proposals both on the state and federal level – legislation that can (and so often does) have a profound impact on the HR profession and how we do our jobs. In addition to this monthly on-line update, HoCoHRS also broadcasts periodic e-mail “alerts” to notify members of significant policy developments. We hope you find this information useful and encourage you to check back next month for another update.
Thank you visiting HoCoHRS’s Legislative Affairs webpage. For additional resources on HR policy and advocacy, we encourage you to visit SHRM’s Advocacy Webpage at http://www.shrm.org/Advocacy/Issues/Pages/default.aspx.
Laura A. Giantris
HoCoHRS
Legislative Chair
Federal Legislative Update
July 2010 Update: Veterans
Veteran Employment Transition Act (H.R. 5400/S. 3398) – Would amend the federal Work Opportunity Tax Credit (WOTC) program to expand the category of qualified veterans for whom an employer can claim a tax credit. Under WOTC, employers can take a tax credit of up to $6K for employing certain qualified veterans. Under this measure, qualified veterans would include more broadly any “recently discharged veteran.” Currently only disabled veterans, veterans receiving unemployment, and veterans with family members receiving food stamps qualify. The measure would also eliminate the administrative burdens of using the tax credit, which have dissuaded many employers from taking advantage of the tax credit in the past.
The 111th United States Congress began in January 2009 and will meet until January 2011. To date, this Congress has passed several pieces of legislation impacting employers, including most notably The Lilly Ledbetter Fair Pay Act of 2009 (expanding the time frame in which employees may bring discriminatory wage claims under federal law) and the Hiring Incentives to Restore Employment Act (providing federal tax credits to employers for hiring unemployed workers). More recently, the 111th Congress passed the Patient Protection and Affordable Care Act (as amended by the reconciliation Health Care and Education Affordability Act), comprehensive health care reform legislation signed into law in March 2010.
In addition to these new laws, there are a variety of other workplace-related legislative proposals under consideration in the 111th Congress. If passed, these bills could have a profound impact on employers and the HR profession. Below you will find a description of those bills HoCoHRS is actively following. For additional information on pending legislation, please visit SHRM’s HR Congressional Monitor at http://www.shrm.org/Advocacy/Issues/Pages/HRcongressionalmonitor.aspx.
Civil Rights
Employment Non-Discrimination Act (H.R. 3017/S. 1584) – Prohibits discrimination on the basis of sexual orientation or gender identity, defined as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” The law would apply to employers with fifteen or more employees and adopts the enforcement procedures and remedies contained in Title VII of the Civil Rights Act of 1964 (Title VII), which is enforced by the Equal Employment Opportunity Commission (EEOC).
The Paycheck Fairness Act (H.R. 12/S. 182) – Would amend the Equal Pay Act to substantially weaken employer defenses to gender-based compensation discrimination claims. The law would also remove caps on compensatory and punitive damages in the case of violations, impose new data collection and reporting requirements on employers, and protect employees who disclose wage and salary information from retaliation.
Protecting Older Workers Against Discrimination Act (H.R. 3721/S.1756) – Would reverse the Supreme Court’s 2009 ruling in Gross v. FBL Financial Services in which the High Court ruled that a plaintiff alleging intentional age discrimination under the federal Age Discrimination in Employment Act (ADEA) cannot proceed under the “mixed motive” theory of discrimination applied in other types discrimination cases, but rather must show that age was the “but for” cause of the challenged employment action. This bill would codify the mixed-motive theory into the ADEA, thus lowering the current standard of proof by permitting a plaintiff to show that age was a motivating factor, rather than the motivating factor in an employment decision, thus making it easier to prove an ADEA claim.
The Healthy Families Act (H.R. 2460/S. 1152) – Requires employers with fifteen or more employees to provide at least one hour of paid sick leave for every 30 hours worked (up to 56 hours) to eligible employees during the course of a year. This leave could be used for the employee’s own medical condition, to care for a family member with a medical condition, or for absences due to domestic violence, sexual assault or stalking. Leave accrual would start on the first day of employment and must carry over from year to year.
FMLA Enhancement Act (H.R. 824) – Proposes to expand FMLA coverage by: (1) expanding employer coverage from those with 50 or more employees to those with 25 or more; (2) providing leave to eligible employees to attend their child’s school or community organization activities; (3) providing leave to eligible employees for routine family medical needs (e.g. wellness visits). In the latter two instances, the law would permit an employee to take up to 24 hours of leave in a 12 month period.
Note: In addition to this legislation, there are numerous other bills pending at this time that also seek to amend the FMLA.
The Employee Free Choice Act (H.R. 1409/S. 560) – Would amend the National Labor Relations Act (NLRA) to allow unions to bypass private ballot elections in favor of the card check process. The bill would mandate the card check process by compelling an employer to recognize a union if 50 percent plus one of employees in a bargaining unit sign authorization cards. The bill also would require the union and employer to enter into binding arbitration on terms of an agreement if the union and the employer were unable to reach a contract within 120 days of the start of negotiations.
The Arbitration Fairness Act (H.R. 1020/S.931) – Would amend the Federal Arbitration Act (FAA) to prohibit employers from requiring workers, as a condition of employment, to submit any employment-related dispute to arbitration. The bill also would not allow arbitration unless a claim has been made and only if the employer agrees. The legislation would effectively ban pre-dispute mandatory arbitration agreements.
The Alert Laid Off Employees in Reasonable Time Act (H.R. 3042) – Amends the Worker Adjustment and Retraining Notification (WARN) Act to require an employer to give 60-day written notice to employees and appropriate state and local government officials before ordering a mass layoff that results in an employment loss at more than one site of employment during a 30-day period and effects: (1) at least 33% of the employer’s workforce (excluding part-time employees); and (2) at least 50 – 499 employees (excluding part-time employees). The bill also makes an employer who violates these notice requirements liable to each aggrieved employee for double the back pay (under current law, only back pay is available) for each day of the violation for up to 60 days.
Forewarn Act (H.R. 3042/S. 1374) – Would amend the Worker Adjustment and Retraining (WARN) Act would lengthen the advance written notice requirement under the WARN Act to 90 from 60 days in the even an employer or government agency orders a plant closing or mass layoff. The bill would also expand coverage to employers with 75 or more employees (currently, the law covered employers with 100 or more employees) and generally prohibit waivers of WARN rights (such as in severance agreements).
The 427th session of the Maryland General Assembly began on January 13, 2010 and ended on Monday, April 12, 2010. During the session, state legislators proposed over 160 bills relating to labor and employment. Of those, 60 passed both chambers and the Governor signed into law 15 of them. The rest failed upon adjournment of the General Assembly.
Below you will find a description of those bills HoCoHRS followed over the course of the session, as well as their current status. Those that received the approval of the Governor include The Unemployment Insurance Modernization and Tax Relief Act and The Job Creation and Recovery Tax Credit. The Governor also approved two bills relating to wage payment and collection. The first bill (H.B. 214/S.694) expands the definition of “wage” in Maryland’s Wage Payment and Collection Law. Unfortunately, this bill may allow employees to obtain increased damage awards for wage violations. The second (H.B. 404) authorizes the Commissioner of Labor and Industry to issue orders requiring the payment of wages without instituting a civil action, which potentially could make it easier for an employee to obtain a damage award.
Although many of the bills described below did not garner enough votes to pass during the 427th session, we expect to see a number of them make a comeback next term. In particular, we will keep an eye out for future legislation in the area of civil rights – specifically, gender identity and religion. The General Assembly may also revisit earlier proposals relating to workplace flexibility and credit checks when it reconvenes in 2011.
Unemployment Insurance Modernization and Tax Relief Act (S.B. 107) – Permanently expands unemployment insurance eligibility and benefits. The impetus behind the legislation is for the State of Maryland to qualify for more than $126 million in federal stimulus funds, the receipt of which is contingent on the adoption of these measures. There are two positive aspects of this legislation from the standpoint of employers. First, the law will reduce the interest rate on late payments. Second, it provides for payment plans that will help Maryland employers spread the cost of increased unemployment insurance taxes over the course of the year – as opposed to paying the majority of this tax in the first quarter.
Job Creation and Recovery Tax Credit (S.B. 106) – Provides an income tax credit of $5,000 to employers that hire an unemployed Maryland resident during calendar year 2010. The job must be full-time and either newly-created or one that has been vacant for at least 6 months. The tax credit is capped at $250,000 per employer, with a program limit of $20 million. A qualifying employee is defined as an individual living in the State of Maryland who is currently receiving unemployment benefits or has exhausted those benefits some time within the past twelve months. The position must remain filled for one year, and the credit would be pro-rated if the employee works less than a year. Employers must obtain certification for the credit by submitting required documentation to the Department of Labor, Licensing, and Regulation
Tax Credits for Qualifying Employees with Disabilities (S.B. 221) – Would extend the availability of certain tax credits, available to employers that hire qualifying individuals with disabilities, through June 30, 2011. The bill also authorizes the creation of a task force to determine the number of jobs created by the tax credits and to make recommendations on simplifying the application process for employers.
Status: Passed Senate with House amendments. Pending approval of Governor.
Earned Income Credit Information Act (S.B. 638) – Would require employers to provide written or electronic notification to employees who may be eligible for the state earned income tax credit. The notice must state that: 1) the employee may be eligible for the federal and State earned income credits; 2) the employee must file an income tax return to receive the credit even if taxes are not owed, and 3) a portion of the earned income tax credit may be refundable. An employee would have no right of action against an employer for failure to provide the notice.
Status: Failed upon adjournment of General Assembly.
Definition of Wage (H.B. 214/S.B. 694) –Would expand the definition of "wage" in Maryland’s Wage Payment and Collection Law (MWPCL) to include overtime wages, which would allow employees to obtain remedies available under the MWPCL (treble damages, plus attorney fees and costs) for unpaid overtime wages. Under existing court precedent, violations of the wage and hour laws are not considered collectable wages under the MWPCL because there is already a separate statutory provision specifying penalties for non-payment. The bill does not indicate how the two laws would be reconciled, and therefore effectively would allow employees to “double dip.”
Order to Pay Wages (H.B. 404) –Would give the Commissioner of Labor and Industry the authority to review and investigate claims for failure to pay wages (up to $3,000), and based on the findings, either dismiss the claim or issue an order requiring the payment of wages (plus interest). Authorizes an employer to request a de novo administrative hearing before the Office of Administrative Hearings to dispute the order to pay, provided the request is made within 30 days. Under current law, the Commissioner may only attempt to resolve violations of the Wage Payment and Collection Law through informal mediation or via a civil action brought by either the Commissioner or the Attorney General.
Liquidated Damages for Wage and Hour Violations (H.B. 1246/S.B. 418) – Would require an employer who is found to have violated the Maryland Wage and Hour Law to pay triple (liquidated) damages to the employee entitled to recovery. The bill also states that the employee would be entitled to recover reasonable legal fees and costs. Currently, if an employer pays an employee less than the required wage, the employee may bring an action to recover only the difference and recovery for legal fees and costs is not mandated.
Status: Failed upon adjournment of General Assembly.
Criminal Penalties for Certain Wage and Hour Violations (S.B. 419) – Increases misdemeanor penalties for employers that do not comply with the Maryland Wage and Hour Law, establishing a fine of up to $2,500 for a first violation. Subsequent violations would be subject to a fine of up to $5,000. Currently, these penalties are set at $1,000 and $2,500 respectively. Moreover, under the bill, each workweek for which an employer does not pay the wage required would be considered a separate offense.
Status: Failed upon adjournment of General Assembly.
Compensation for Jury Service (H.B. 1320) – Requires an employer to provide employees their average daily compensation, less any government per diem, for each day they are called for jury service. Violations would be punishable by fine – up to $1K.
Status: Failed upon adjournment of General Assembly.
The Maryland Family and Medical Leave Act (H.B. 1272) – Requires employers in the state that are subject to the federal Family and Medical Leave Act (FMLA) to grant leave to eligible employees with respect to that employee’s brother, sister, grandparent, grandchild or domestic partner (or the son or daughter of a domestic partner). In other words, the legislation would expand the definition of a “family member” for purposes of FMLA coverage in Maryland.
Status: Failed upon adjournment of General Assembly.
Employment Discrimination Based on Family Responsibilities (H.B. 463) – Would prohibit an employer, employment agency, or labor union from discriminating against an individual because of family responsibilities. Also prohibits covered entities from printing or publishing any notice or advertisement relating to employment that indicates discrimination based on family responsibilities. The bill does not specifically define the term “family responsibilities.”
Status: Failed upon adjournment of General Assembly.
Workplace Religious Freedom Act (H.B. 381) –Requires employers with 15 or more employees to allow an employee to use accrued leave to observe a Sabbath or other holy day in accordance with a sincerely held religious belief. The bill would permit employees to use any form of accrued leave, either paid or unpaid, provided the leave complies with the terms of applicable collective bargaining agreements and employment policies and does not pose an “undue hardship” to the employer. The bill further states that where an employee has no accrued leave, the employer may require the employee to take leave without pay or work additional hours equivalent to the amount of leave taken.
Status: Failed upon adjournment of General Assembly.
Sexual Orientation and Gender Identity Discrimination (H.B. 1022/S.B. 583) – Prohibits discrimination based on gender identity or sexual orientation in public accommodations, housing, and employment. The legislation defines the term “gender identity” as a gender-related identity, appearance, expression, or behavior of an individual regardless of the individual’s assigned sex at birth. The law would require employees to adhere to reasonable workplace appearance, grooming, and dress standards, as long as the employee is allowed to appear, groom, and dress consistent with the employee’s gender identity.
Status: Failed upon adjournment of General Assembly.
Unlawful Employment Practices - Motivating Factor (H.B. 504) – Would clarify that an unlawful employment practice is established under Maryland law when a claimant demonstrates that discrimination was a motivating factor, even though other factors may have also motivated the practice. The bill further provides that the U.S. Supreme Court’s ruling in Gross v. FBL Financial Services would not apply in cases brought under the state’s antidiscrimination laws. In Gross, the High Court ruled that a plaintiff alleging intentional age discrimination under the federal Age Discrimination in Employment Act (ADEA) cannot proceed under the “mixed motive” theory of discrimination applied in other types discrimination cases, but rather must show that age was the “but for” cause of the challenged employment action.
National Guard Employment Protection Act of 2010 (H.R. 1879) – Would amend the Uniformed Services Employment and Reemployment Rights Act (USERRA) to extend reemployment protections for National Guard members regardless of whether they are assigned to a homeland security mission in the United States or deployed overseas. The law currently does not provide the same protections for those serving missions domestically as it does for National Guard members serving abroad.
Would amend the Fair Labor Standards Act (FLSA) to provide new enforcement mechanisms and penalties aimed at preventing the misclassification of employees as independent contractors. Among other things, the bill would require employers to notify individuals of how they are classified and to keep records of wages earned and hours worked for independent contractors. The legislation would increase penalties for FLSA noncompliance and would prohibit employers from retaliating against individuals who advocate for their rights under the Act.
