The Section of Labor Law and the Public Awareness Committee of the Maryland State Bar Association have prepared this information. It is intended to inform the public and not serve as legal advice.
The rights of employees working in Maryland are protected by federal, state and local laws, as well as by common law through the actions for breach of contract, and intentional and negligent unlawful acts. Most of the federal, state, and local statutes are enforced primarily by specific agencies. Common law claims must be entered through the state courts, which enforce such claims.
Discrimination – Sexual Harassment
Many employees complain that their employer gives some workers preferential treatment or does not treat all employees equally. The law does not require that all employees be treated equally, not only that they may not be treated differently because of their sex, race, religion, national origin, physical or mental handicap or age. For example, when two employees are equal in job performance, an employer can not give one a better raise because of the employee’s sex or race. It is not only unlawful to discriminate in hiring and firing decisions, but also in regard to promotions, pay rates, job assignments, overtime, layoff and recall or any other term or condition of employment. When facing a layoff, an employer may not select “older” employees for layoff simply because they may be able to collect a pension.
The Americans with Disabilities Act (ADA) of 1990 prohibits discriminating against individuals with physical or mental disabilities. The Act requires employers in certain circumstances to make reasonable accommodations for disabled individuals so these individuals may be able to perform the essential functions of a job. For example, recovering alcoholics, former users of illegal drugs, mental retardation, paraplegia, schizophrenia, cerebral palsy, epilepsy, diabetes, muscular dystrophy, multiple sclerosis, cancer, infection with HIV, visual, speech and hearing impairments may be covered under the ADA.
The law also prohibits sexual harassment. Supervisors and employees are strictly prohibited from sexually harassing other employees, whether the harassment results in tangible job harm such as a firing or demotion or other reprisal for refusing sexual advances, or intangible job harm stemming from severe and pervasive harassment. Creating a hostile work environment of a pervasive nature that is abusive to employees based on their gender also constitutes sexual harassment. For example, allowing employees to intimidate and harass other employees through lewd remarks, inappropriate touching or offensive jokes. Employers are required to have a complaint procedure in place and take prompt and reasonable efforts to remedy discrimination once it is known.
The Equal Employment Opportunity Commission and the Maryland Commission on Human Relations are the federal and state agencies designated to enforce these laws. An employee who has been the subject of discrimination may file a charge against his or her employer with these agencies with or without a lawyer’s assistance. It is very important to remember that a charge alleging discrimination generally must be filed with the appropriate agency within 180 days from the date of discriminatory act in order to be timely.
The Mental Health Parity Act (MPHA) of 1996 took effect on January 1, 1998 and applies to employees enrolled in group or employer insurance plans covering 50 or more employees; self-insured ERISA plans and fully-insured plans; federal employees covered by the Federal Employee Health Benefits Act; and collectively bargained plans. The MPHA requires that covered health plans that provide mental health coverage provide the same lifetime and annual maximum dollar limits for mental health benefits as they do for conventional medical benefits.
Rights to Representation in the Workplace
The National Labor Relations Act guarantees employees the right to self-organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for their mutual aid and protection, or to refrain from any of these activities. The National Labor Relations Board, with a regional office located in downtown Baltimore, is the federal agency assigned to investigate alleged violations of the law and enforce the law by prosecuting offenders. Under this Act, employees who are unrepresented have the right to join together to form a union or seek to have an existing labor organization represent them without fear of retribution by the employer. If a majority of employees select the labor organization to represent them, the NLRB will certify the organization and require the employer to bargain with this group regarding wages, hours and other terms and conditions of employment. If an employee is fired from union activity, the NLRB will seek to have the employee reinstated to his or her job with full back pay.
The Act imposes certain requirements upon labor organizations that represent workers. The union must represent all employees fairly and diligently, and may not refuse to represent someone for discriminatory or arbitrary reasons. The federal law also protects the right of un-represented employees to engage in concerted activities for their mutual aid and protection. All employees who complain to the boss about certain working conditions on behalf of co-workers may not be discriminated against because the employee is engaged in protected concerted activities. Employees who jointly refuse to perform an unsafe and dangerous work assignment cannot be disciplined for their joint refusal. The law, however, does not protect individual acts, such as the individual employee complaining about only his or her pay rate. It is only when employees join together in some way that the protections of the law apply.
An employee who feels that his or her right under this law has been violated may file a charge against the employer or union with the NLRB, which will commence an investigation. All charges must be filed within six months from the date of the alleged unlawful act or the charge will be dismissed as untimely. Employees who wish to have a labor organization represent them may file a petition seeking to have the NLRB conduct an election among employees.
Working Conditions and Wages
Both federal and state laws exist that protect workers from unsafe working environments and entitle employees to minimum wages and overtime wages. Health and safety regulations set forth standards that employers must follow to protect workers from exposure to chemicals and other toxic substances; unsafe noise levels; unsafe work practices; and unsafe heat, cold or ventilation conditions. The regulations may require protective clothing for certain types of work and may also require employers to provide certain medical tests (e.g. hearing tests) at company expense. Complaints for violations of these laws may be filed with Maryland Occupational Safety and Health (MOSH).
Federal law requires that employees in most industries be paid a minimum wage and overtime (one and half times the employee’s regular rate of pay) for hours worked over 40 per week. There are certain exceptions to the overtime requirements for supervisory and professional personnel, as well as for particular jobs such as salespeople who use telecommunications, and other remote services technology, such as fax, modems, e-mail, and the Internet, to perform their jobs; some computer professionals such as Systems Analysts or Programmers; and some industries such as agricultural enterprises. The law also sets forth minimum wages, which must be paid to construction workers on public work projects and to employees performing government contract service work (e.g. maintenance or janitorial work at a government building or facility). The Wage and Hour Division of the United States Department of Labor investigates and enforces violations of these federal laws. In addition, the state Attorney General’s office enforces the state wage law and can help collect unpaid wages to workers.
The Fair Credit Reporting Act requires that employers that use any consumer credit information relating to the credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living of an applicant or employee as the basis, in whole or in part, for employment decisions to (1) disclose to the applicant or employee that a consumer credit report may be obtained and used in making employment decisions; (2) obtain written permission from applicants and employees prior to obtaining the consumer credit report; (3) provide the applicant or employee with a copy of their consumer credit reports and a copy of a summary of rights under the FCRA before taking any adverse action, such as termination; and (4) provide the name, number and address of the credit reporting agency that supplied the report.
Under the Workers’ Compensation laws, all employees are entitled to compensation for lost wages, permanent injuries, and medical costs for accidental injuries incurred during the course of employment. The law also covers compensation for occupational diseases. Claims for compensation for accidental injuries must be filed with the Workers’ Compensation Commission within two years of the date of injury. Written notification of an occupational disease must be given to the employer within one year from the date that he employee has knowledge of the disease. It should be noted that many employees think they have filed a claim only to find out that no claim has been filed. Claims may only be filed on official forms supplied by the Workers’ Compensation Commission.
In certain instances of job-related injuries, employees may not only make a claim against the employer, but also against third parties. Where a third party’s negligence has caused the job accident to occur, such as a truck driver being hit by a non-employee, the negligent third party may be liable for the victim’s injuries that are not covered by the compensation laws.
Health and Disability and Pension Rights
Under the Social Security laws, employees who become disabled, whether on the job or off, may be entitled to disability benefits if they are unable to engage in any occupation for a period of 12 months or more. Application for these benefits may be made through the Social Security Administration.
Federal law requires that all employees covered by employer pension plans must be vested within a maximum of five years or vesting must take place in a staggered schedule between three and seven years. Depending upon how the plan is set up, these vesting requirements may be shorter. Federal law also provides for annual disclosure to employees of their benefits under the pension plan.
The Family and Medical Leave Act of 1993, guarantees workers unpaid time off from work for medical emergencies. Employers are required to provide up to 12 weeks of unpaid leave during any twelve month period for the:
- Birth and care of an infant
- Care of an adopted or foster care child
- Serious health condition of an employee
- Care of a spouse, child or parent with a serious health condition
The Family Medical Leave Act (FMLA) applies to federal, state and local governments and to companies with more than 50 or more workers. Employees are eligible for FMLA leave after they have worked at 1250 hours for the employer during the previous 12-month period.
Rights to File Charges Without Retaliation
Described above are some of the numerous federal and state laws enacted to protect workers. In most cases, these rights can only be protected by filing charges with the appropriate government agency in a timely manner. Each one of these laws also prohibits an employer’s retaliation against an employee for filing a charge or complaint. Even if the employee is unsuccessful in having a complaint or charge corrected, the employee can not be disciplined or otherwise discriminated against for making the complaint. The law further protects any co-workers who assist or act as witness for the person filing the charge.
Contract Rights and Other Rights
Without an employment contract or union or other collectively bargained contract, Maryland law generally considers workers to be employees “at will.” Without a contract, an employer may hire and fire employees and determine all aspects of workers’ employment at his or her will as along as the employer does not violate any other law. For example, an employer may discharge a 20-year veteran employee for a good reason, bad reason, or no reason at all, if it is not for a discriminatory or other unlawful reason. Over the past several years, however, the courts have begun to make exceptions to this “at will” doctrine.
Even without a specific signed employment contract, some personnel manuals and other company policies, practices, and documents may be interpreted as creating contractual rights. Oral promises to provide certain benefits or wages in order to persuade someone to accept employment may also be considered to create such rights. Whether a contract has been created depends on the facts and circumstances of each case. Legal advice should be sought if an employee thinks an agreement ahs been breached. If a specific written contract exists, either an individual employment contract or a collective bargaining agreement (union contract), or an employer may use the legal process to enforce any portion of the agreement.
In Maryland, it is illegal to fire someone for reasons that are in violation of clear public policy. This kind of firing is often called abusive discharge. As an example, an employee who is discharged for refusing to commit an illegal act may have an action for abusive discharge against the employer.
Privacy Rights of Employees
Under Maryland law, job applicants and employees may not be required to submit to a lie detector test either to obtain a job or keep one. An employer may not require a job applicant to answer any questions pertaining to physical, psychological or psychiatric illness, disability, handicap or testament that does not directly affect the applicant’s ability to perform the job.
Employers have a legitimate interest in monitoring employee performance in the workplace, especially their productivity, safety and efficiency. Recent advances in technology have resulted in employer using new methods of employee monitoring, including electronic monitoring of e-mail, telephone calls, and computer usage. The law does permit employers to conduct electronic surveillance, such as telephone monitoring, when it is done to serve legitimate business interest such as monitoring quality of customer service. The law allows employers to intercept and listen to only business-related calls. A personal call may not be monitored once it is determined to be one.
Employers are also permitted to monitor e-mail usage where the employer owns and provides the computer equipment and it is intended to be used for work purposes only. The law protects employees from an invasion of privacy by their employers in regard to their possessions and private lives, not their use of the employer’s property. The law prevents unreasonable intrusion upon an employee’s privacy, public disclosure of embarrassing private information; and publicly placing an employee’s reputation in a false light.
With regard to job references, employers may not communicate false information to prospective employers without possibly being subject to a lawsuit for character defamation. Employers are also prohibited from communicating certain other types of information about a former employee without the express consent of the employee.
Without a contract covering employment, employers are generally free to set terms and conditions of employment. Therefore, employers are free to implement drug-screening programs for employees and job applicants. Where a contract exists, the employee must determine whether a drug testing policy would violate that agreement.
Employers who require employees to be drug screened must have the test analyzed by a laboratory that is certified under state regulations. Additionally, employees who test positive for drugs have a right to the results of the test and an opportunity to have the test sample analyzed by a laboratory at the employee’s expense. There are similar requirements for applicants for employment and for contractors who are required to undergo drug screening by an employer. However, in public service jobs, drug testing may constitute an unlawful invasion of the employee’s privacy or otherwise be considered unlawful. Each case must be evaluated by the specific facts involved.
If you believe your rights have been violated you should contact a qualified attorney or the governmental agency that enforces the law in question. Not only will they be able to explain how the law applies to you, but they can also provide information on any changes in the law. The names and addresses and telephone numbers of all governmental agencies referred to in this information are listed below:
Equal Employment Opportunity Commission
Appraisal Store Building
10 South Howard Street
Baltimore, Maryland 21202
Maryland Human Relations Commission
6 Saint Paul Street
Baltimore, Maryland 21202
National Labor Relations Board
Appraisal Store Building
103 South Gay Street
Baltimore, Maryland 21202
Maryland Occupational Safety and Health
Division of Labor and Industry
1100 North Eutaw Street, Room 613
Baltimore, Maryland 21201
U.S. Department of Labor
Wage and Hour Division
103 South Gay Street
Baltimore, Maryland 21201
Maryland Division of Economic and Employment Development
1100 North Eutaw Street
Baltimore, Maryland 21201
Workers’ Compensation Commission
6 North Liberty Street
Baltimore, Maryland 21201-3785
Employees Rights in the Workplace © 1986, MSBA, Inc. Revised 1999
All rights reserved. No part of this work may be reproduced in any form without written permission from the Maryland State Bar Association.