The Advocate

Fall 2013

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Four Employment Laws Take Effect

By Taren Stanton


In May 2013, Governor Martin O’Malley signed four new employment-related laws that will significantly impact Maryland employees and employers. The new laws, which took effect October 1, 2013, address: (1) protections for pregnant employees, (2) the ability of employees to obtain liens for unpaid wages, (3) leave during deployment of military family members, and (4) protected wages of tipped employees.

1. Reasonable Accommodation Required for Employees Disabled by Pregnancy
Under the new pregnancy discrimination law, Maryland employers with at least 15 employees, upon request, must provide reasonable accommodation to employees disabled by pregnancy. Md. Code Ann., State Gov’t § 20-609 (West 2013). Possible accommodations may include, but would not be limited to, changing the employee’s job duties, changing the employee’s work hours, relocating the employee’s work area, providing mechanical or electrical aids, transferring the employee to less strenuous or less hazardous position, or providing leave.

An employer must transfer an employee to a less strenuous or less hazardous position as a reasonable accommodation onlyin two circumstances: first, ifthe employer has a policy, practice, or collective bargaining agreement requiring or authorizing the transfer of a temporarily disabled employee to a less strenuous or less hazardous position for the duration of the disability, and second, if the employee’s health care provider recommends the transfer and the employer can provide the reasonable accommodation without: (1) creating additional employment that the employer would not otherwise have created, (2) discharging an employee, (3) transferring an employee with more seniority than the employee requesting the reasonable accommodation, or (4) promoting an employee who is not qualified to perform the job.

Employers covered by the new law are also required to post in a conspicuous location and include as written policy in any employee handbook information concerning an employee’s right to reasonable accommodations and leave for a disability caused or contributed to by pregnancy.

This law creates rights to reasonable accommodation for covered employees that are similar to those under the Americans with Disabilities Act (“ADA”). A review of the ADA and related regulations may be helpful for employers in determining how best to ensure compliance with this pregnancy discrimination law.

2. Unpaid Wage Lien Law
The new Lien for Unpaid Wages Act (“LUWA”) is a powerful new tool for employees seeking to recover unpaid wages. Under the new law, employees are permitted to file a wage lien on the property of their employer for unpaid wages. Md. Code Ann., Lab. & Empl. § 3-1103 (West 2013). Previously, under Maryland’s Wage Payment and Collection Law, an employee could file suit for unpaid wages, and if there was no bona fide dispute that the wages are owed, the court could award treble damages and attorney’s fees to the employee. The new unpaid wages law now provides a mechanism for employees to obtain a lien for unpaid wages on an employer’s real or personal property before a lawsuit is filed.

To establish a lien, an employee must first provide written notice to the employer of the wages claimed and identify the property against which the lien for unpaid wages is sought. An employer may dispute the lien by filing a complaint in circuit court within 30 days of service of the lien setting forth its defenses. If the employer fails to do so, then the lien may be established.

The Court then has 45 days to determine whether to issue an order establishing the lien.  If the court issues an order to establish the lien, the employee is entitled to court costs and reasonable attorneys’ fees. If, however, the court determines that the lien was frivolously filed or made in bad faith, the court may award court costs and reasonable attorneys’ fees to the employer. 

The Maryland Department of Labor, Licensing and Regulation (“MDLLR”) is tasked with promulgating relevant regulations. Presumably, MDLLR will implement the necessary regulations soon after the law takes effect.

It is unclear how this new law, which will require courts to make decisions in these matters rather expeditiously, will work practically. Yet, it is clear the law will have a major impact on how employees and employers address unpaid wages disputes. This law seems designed to make small wage claims easier to enforce against employers and to dissuade employers from refusing to provide employees with last paychecks and other unpaid wages. As a result, employers should deal with wage issues in a proactive and constructive manner. Otherwise, employers will now be faced with expedited and costly litigation by employees seeking to recover unpaid wages.

3. Leave for Deployment or Return of Military Family Members
The new deployment leave law authorizes an employee to take leave from work on the day that an immediate family member, that is, spouse, parent, stepparent, child, stepchild, or sibling, is leaving for, or returning from, active duty outside the United States as a member of the armed forces. An employer may not require an employee to use compensatory, sick, or vacation leave when taking leave under this law. An employer may, however, require the employee to provide proof that the leave is being taken for this purpose.

The new law applies to employers that employ 50 or more individuals, thereby excluding applicability to small businesses. To be eligible, employees must have worked for the employer for at least 12 months and for at least 1,250 hours in the past 12 months.

This law is similar to the Family Medical Leave Act’s (“FMLA”) qualified exigency leave provision, but allows employees who have exhausted, or are not eligible for FMLA leave, to take leave for this limited purpose.

4. Tipped Employees: No Deductions for “Dine and Dash”
The new tipped employee law prohibits an employer from requiring a tipped employee to reimburse the employer for food or beverages if the customer leaves the employer’s business without paying. Md. Code Ann., Lab. & Empl. § 3-713 (West 2013). An employer also may not deduct such amounts from the tipped employee’s wages. 

Under the new law, the employer must also post a printed notice of the law in each work location where tipped employees are employed. The posting must be in a form established by MDLLR. The MDLLR will most likely develop and distribute the necessary form soon after the law takes effect.

This new law is similar to the Maryland Wage Payment and Collection Law, which prohibits employers from making unauthorized deductions from an employee’s paycheck unless the deductions are authorized in writing by the employee or otherwise made in accordance with any law, rule, or regulation. Thus, it was implied that employers could not require employees to reimburse employers for customers who leave without paying. But the new tipped employee law makes it explicitly clear to employers that deducting an employee’s wages for a “dine and dash” customer is prohibited.

Conclusion

These four new laws expand employees’ rights in the workplace and demonstrate the State’s commitment to protecting employees’ interests. Employers in Maryland should familiarize themselves with these new laws and determine how they may impact their business.  In addition, employers should monitor the MDLLR’s website for new regulations in support of these laws.

Taren Stanton is an associate at Tydings & Rosenberg LLP, where she represents clients in business litigation and employment law matters throughout Maryland and Washington, D.C.  Ms. Stanton can be reached at tstanton@tydingslaw.com.


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