For those who may have missed it during a pandemic summer, on May 7, 2020 Governor Hogan allowed hundreds of Maryland bills to become law, some of which will have direct implications on employers. A summary of the employment related laws, along with recommendations on how employers can implement them in the workplace, is provided in Miles & Stockbridge’s June 8, 2020 publication titled “Maryland Enacts Host of New Laws”. Each of the laws discussed therein will become effective on October 1, 2020. Updates on two of the new laws are provided herein.

Maryland’s Mini-WARN Act

Maryland’s “Mini-WARN Act,” a state version of the federal Worker Adjustment and Retraining Notification (“WARN”) Act, vastly expands employer obligations when it comes to notification and reporting in the wake of workforce layoffs. While the state had previously set forth voluntary guidelines for employers undergoing a “reduction in operations,” the new law now requires employers with 50 or more employees to provide 60 days’ notice to impacted employees, union representatives, and various state officials. “Reduction in operations” is defined as the relocation of part of an employer’s operation from one workplace to another, or the shutting down of a workplace or a portion of the operations of a workplace that reduces its workforce by at least 25%, or 15 people—whichever is greater—over a three-month period.

Note that in determining whether an employer has the requisite number of employees to become subject to the new law’s requirements, employees working fewer than twenty hours per week (on average), and employees who have worked for the employer for less than six of the preceding twelve months will not count towards the number of employees. However, even though these individuals are not officially a part of the headcount, they must nonetheless be provided notice pursuant to the Act if they are implicated by a reduction in operations.

In many respects, Maryland’s mini-WARN Act is much broader in scope than its federal counterpart. For example, the federal WARN Act applies only to employers with 100 or more employees, whereas Maryland’s mini-WARN Act applies to employers with 50 or more employees. Additionally, Maryland’s notice requirements are triggered for reductions of at least 25% or 15 employees, whichever is greater, whereas the federal WARN Act is triggered only for reductions of at least 33% of the workforce and at least 50 employees (excluding part time employees). Further, Maryland’s Act does not provide a minimum distance requirement or minimum number of employees to trigger the relocation prong of its requirements. Of particular importance during a global pandemic, unlike its federal counterpart, Maryland’s Act does not contain exceptions to the notice requirements for situations such as natural disasters and unforeseeable business circumstances.

The potential penalties for employer noncompliance are likewise more extreme under Maryland’s Act. While the employer penalty under the federal WARN Act is a $500 fine for each day the Act is violated, employers in Maryland may be assessed civil penalties of up to $10,000 per day for noncompliance. Significantly, however, the Maryland Department of Labor is in the process of developing regulations implementing the new Act. A recent update indicates that the regulations are expected to be released for public comment in November 2020, and final regulations will be formally implemented by April 2021. The Department states it will not be enforcing employer compliance with the Act until final regulations are implemented, despite the Act’s effective date of October 1, 2020. Notwithstanding the uncertainty that will inevitably exist until final regulations are released, employers should use the interim period to prepare for and demonstrate good faith compliance.

New Employer Requirements Regarding Wage History and Wage Ranges

Beginning October 1, Maryland employers will be required to provide to job applicants the wage range for the position to which the applicant applied, on request of an applicant. Employers are prohibited from retaliating against an applicant who requests such wage information and who does not provide their own wage history or wage range. Employers are likewise now prohibited from seeking an applicant’s wage history either “orally, in writing, or through an employee or agent or from [an applicant’s] current or former employer ,” and from relying on wage history for the purpose of determining fair wages in most circumstances. The new law does, however, permit employers to confirm and rely upon voluntarily provided wage history to support a higher wage offer, after a conditional offer of employment is made, so long as the higher wage does not create an unlawful pay differential based on sex or gender identity.

With respect to enforcement, applicants may report violations to the Commissioner of Labor and Industry. Upon receipt of an alleged violation, the Commission must issue an order compelling compliance. In determining the appropriate penalty to impose on an employer, the Commission will consider the following: the gravity of a violation, the size of the business, the employer’s good faith, and the employer’s history of prior violations.

To prepare for implementation of this new law, employers and human resources departments should prepare formal wage ranges for each of its positions in advance of future candidate searches. Further, any questions about salary history should be removed from application materials. Last, training may be required to ensure all individuals involved in the hiring process are educated on how to comply.

Other Employment-Related Laws Becoming Effective October 1, 2020

(see “Maryland Enacts Host of New Laws”)

• Ban on discrimination based on hairstyles commonly associated with race
• Law expanding Maryland’s equal pay statute to include ban on retaliation
• Ban on facial recognition technology used during job interviews
• Law providing additional flexibility for state government employees needing accommodations related to pregnancy or child birth
• Law requiring development of heat stress standards by Commissioner of Labor and Industry

Should you need any guidance on how to properly implement the legislation discussed herein in your workplace, please reach out to our labor and employment practice group for further assistance.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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