United States: Significant Changes For Maryland Employers ‒ Protective Hairstyles, Wage History And Wage Range Law, Mandatory WARN Requirements And More

Employers should take notice of these new laws and changes to current laws by educating their staff now in order to be fully compliant by October 1, 2020.

On May 7, 2020, Governor Hogan's deadline to sign or veto the various bills passed by the Maryland General Assembly in the 2020 session expired. As a result, any bill that was passed and not otherwise vetoed is now set to become law later this year. The following employment-related laws are effective October 1, 2020.

Discrimination Based on Race Traits, Hair Texture and Protective Hairstyles

House Bill 1444/Senate Bill 531, Discrimination―Definition of Race―Hair Texture and Hairstyles, amends the definitions contained in Title 20 of the Human Relations Article, which bars discriminatory acts based inter alia on race. The term “Protective Hairstyle” is now included and defined to specifically include: “braids, twists, and locks.” The article has been further amended to define the word “Race,” and includes “traits associated with race, including hair texture, afro hairstyles, and protective hairstyles” within the definition.

Prohibition on Adverse Action for Inquiring About Wages

The Equal Pay for Equal Work Act prohibits employers from taking any adverse action (discharge suspension, demotion, discrimination or retaliatory action) against employees or otherwise prohibiting employees from inquiring about another employee's wages, disclosing the employee's own wages, discussing another employee's wages if those wages have been voluntarily disclosed, asking the employer to provide a reason for the employee's wages, or aiding or encouraging another employee to exercise their rights under the act. Previously, the act was phrased in a way that could have been interpreted to only prohibit adverse action against an employee following an employee's inquiry into another employee's wages. House Bill 14 amends the Equal Pay for Equal Work Act to now clearly bar employers from taking any adverse action against an employee who makes an inquiry regarding their own wages.

Disclosure and Use of Wage History and Wage Range

House Bill 123/Senate Bill 217, Labor and Employment―Wage History and Wage Range, brings Maryland into the ranks of the many other states that regulate an employer's actions regarding wage inquiries upon hiring.

Employer Requirements and Restrictions

• Employers are required, upon request from the applicant, to provide the wage range for the position for which the applicant applied.
• Employers may not retaliate against or refuse to interview, hire or employ an applicant because the applicant requested the wage range for a position or otherwise refused to provide their own wage history.
• Employers are prohibited from relying on an applicant's wage information during screening or as a factor when considering an applicant for employment.
• Employers are prohibited from seeking the wage history of an applicant for employment orally, in writing, through an employee or an agent, or from a current or former employer prior to initial offer and with limitations.
• Employers may not use an applicant's wage history to determine an initial compensation offer.

Permissible Reliance on Wage History

• Employers may only seek an applicant's wage history following an initial offer, which shall include an offer of initial compensation.
• An employer may rely on wage history, if voluntarily provided by the applicant, to support an increase to an initial compensation offer.
• Employers may also seek to confirm the wage history of an applicant, once voluntarily provided, in order to support a compensation offer higher than the initial offer, as was included in the original employment offer.

The act creates both criminal and civil penalties that may be levied against employers and individuals found to be in violation of the act.

Use of Facial Recognition Services During Interviews Is Prohibited

House Bill 1202, Labor and Employment―Use of Facial Recognition Services―Prohibition, prohibits employers from using facial recognition software during interviews without an applicant's prior consent. The act bars employers from utilizing technology that analyzes facial features to create a “facial template” of an applicant during the interview. Facial template is defined as a “machine-interpretable pattern of facial features that is extracted from one or more images of an individual by a facial recognition service.”

The act does not bar the use of facial recognition, per se. As worded, the act only bars the practice of creating a “Facial Template” of an applicant during an interview and without consent. While “interview” is not defined under the act, employers should interpret the term as broadly as possible to include face-to-face interviews, interviews conducted via video conferencing or other circumstances where a photographic image of an applicant can be rendered. Employers should also consider interactions that occur as part of an interview, such as checking in at an employer's front desk and/or security, as covered under the act.

Employers who wish to use facial recognition technology must seek an applicant's prior consent. The consent must be obtained through a written waiver, drafted in “plain language,” and state:

• The applicant's name;
• The date of the interview;
• That the applicant consents to the use of the facial recognition during the interview; and
• Whether the applicant read the consent waiver.

The act does not specify what, if any, penalties will apply to employers who violate the law. However, similar laws located in Subtitle 3 of the Labor and Employment Article, which this act will be codified under, provide for the Commissioner of Labor and Industry to order compliance, administrative penalties and in some cases, civil penalties for employers.

Revision to the Economic Stabilization Act

House Bill 1018/Senate Bill 780 revises the Economic Stabilization Act, which provides guidelines that Maryland employers can voluntarily adopt in order to give advanced notice of workforce reductions. Following this amendment, the act is no longer voluntary and employers must follow the guidelines in order to comply with Maryland law, as well as remain compliant with federal WARN Act requirements, when implementing reductions.

Under the revised act, employers who plan to implement a reduction must draft written notice at least 60 days prior to the initiation of the reduction.

• Employer is defined as any person, corporation or other entity that employs at least 50 employees and has operated an industrial, commercial or business enterprise in Maryland for at least one year.
• Reduction is defined as the relocation of a part of an employer's operation from one workplace to another site, the shutting down of a workplace or the shutting down of a portion of a workplace that reduces the number of employees by the greater of 25 percent of the workforce or 15 employees over a three month period.

A copy of the notice must be sent to:

• All employees at the workplace subject to the reduction;
• Each exclusive representative or bargaining agency that represents employees subject to the reduction;
• Any individuals who work less than 20 hours per week, or those who have worked for the employee less than six months during the 12-month period immediately preceding the reduction;
• The division's Dislocated Worker Unit;
• All elected officials who represent the jurisdiction where the workplace subject to the reduction is located.

The notice must include:

• The name and address of the workplace where the reduction is expected to occur;
• The name, telephone number and email address of a workplace supervisory employee acting as a point of contact for further information;
• A statement explaining whether the reduction is expected to be permanent or temporary, and whether the workplace is expected to be shut down; and
• The expected date when the reduction will begin.

Employers who violate the law face civil penalties of up to $10,000 per day. The Secretary of Labor has discretion to determine the penalty and may consider factors such as: the gravity of the violation; the size of the employer's business; the employer's good faith; and the history of the employer's violations. The act does not provide a private right of action for employees.

What This Means for Employers

Employers should take notice of these new laws and changes to current laws by educating their staff now in order to be fully compliant by October 1, 2020. More specifically, employers should review their dress, grooming and other policies establishing appearance standards and revise such policies, if needed, for compliance with the new anti-discrimination requirement. Employers should also update their training modules to include training against racial harassment and discrimination based on protected hair traits historically associated with race. To ensure compliance with the new wage history/range and facial recognition services laws, employers should review existing policies and modify employment applications, interviewing guidelines and hiring criteria as well. Further, employers are advised to train any employee(s) who may participate in screening applicants, interviews, hiring or similar activities. Finally, employers should educate management around the new notice requirements regarding employee reductions to ensure compliance with the now-mandatory Economic Stabilization Act.

Originally published 19 May, 2020

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.