Recent Developments in Maryland Employment Law

1. Recent Developments in Maryland Employment Law Eric Paltell, Esq. Kollman & Saucier, P.A. 2012cumberland valley shrm Legal & Legislative conference

2. Program Overview • Prohibition on Accessing Employee Social Media Accounts • Workplace Fraud Act Amendments • Change in Jury Service Law • Employee-Union Communications Privilege • Unemployment Insurance Extended to Victims of Domestic Violence • Legislation to Look for in 2013 General Assembly Session

3. Facebook Privacy Law

4. Facebook Privacy Law(SB433 & HB964) • Limits employer’s ability to require disclosure of social media passwords • Creates new Section 3-712 of Md. Labor & Employment Article • Takes effect October 1, 2012

5. Facebook Privacy Law - Overview • Limits employer’s ability to request or require that an employee or applicant disclose their “user name, password, or other means for accessing a personal account or service” • Permits employers to require disclosure of user names or passwords for accessing “non-personal” accounts or services that provide access to employer’s computer systems • Law does not define “personal” and “non-personal” accounts • Not clear if employer can require disclosure of social media passwords for employee account when employee has been authorized to use it for work purposes

6. Facebook Privacy Law - Exceptions • No prohibition on investigating whether employee has been downloading proprietary information or financial data • No prohibition on taking action against employee who downloads proprietary or financial data • Not clear if employee password can be required in such situation

7. Facebook Privacy Law-Enforcement • No express statutory remedy • Employee fired for refusing to disclose password can likely bring a wrongful discharge (tort) claim

8. Workplace Fraud Act Amendments

9. Workplace Fraud Act Amendments(SB1005 &HB1364) • 2009 law makes it illegal for construction and landscape contractors to misclassify employees as independent contractors • State DLLR given the power to investigate complaints of misclassification • 2009 law creates presumption that an employer-employee relationship exists when someone is paid for services • 2012 amendment provides that presumption does not exist in certain circumstances

10. Workplace Fraud Act Amendments (cont’d) • Presumption of employment status can be rebutted if employer produces: • Written contract with contractor which includes description of work, compensation, and contractor’s acknowledgement of obligation to pay unemployment, workers comp, and payroll taxes for its employees • Affidavit signed by contractor certifying that it is available to work for other businesses • Certificate of good standing for contractor from SDAT • Proof that all occupational licenses have been obtained • Proof that contractors have received notice that they are classified as contractors and the implications of the classification

11. Workplace Fraud Act Amendments (cont’d) • DLLR investigative process was also modified by 2012 amendments • Employers now have 30 days (as opposed to 15) to produce records to DLLR • DLLR now has 90 days (as opposed to 45) to make a determination • New changes took effect July 1, 2012

12. Jury Service Protection Amendments

13. Jury Service Protection Amendments(HB353) • Current law prohibits employers from requiring employees to use accrued leave when responding to summons for jury service • Law also prohibits employers from threatening or taking any adverse action against an employee for fulfilling jury service obligations

14. Jury Service Protection Amendments (cont’d) • New law provides that any person who is summoned and appears for jury service which lasts for 4 hours or more (including travel time) cannot be required to work a shift that begins:(1) on or after 5:00p.m. on the day of the jury service appearance; or (2)before 3:00 a.m. on the day following the employee’s appearance. • Changes effective October 1, 2012

15. Union Communications Privilege

16. Union Communications Privilege(SB797) • New statutory privilege for communications between union and employee members concerning an employee grievance • Applies to testimony in grievance hearings, arbitrations, and administrative and judicial proceedings • Otherwise privileged communications may be disclosed in certain circumstances, including when necessary to prevent “certain death or substantial bodily harm” and other instances which can result in tangible and/or financial injury to property • Takes effect October 1, 2012

17. Unemployment Extension to Victims of Domestic Violence

18. Unemployment Extension to Victims of Domestic Violence (SB291) • Claimants who quit because of domestic violence will now be treated as having left for “good cause,” which qualifies them for benefits • Reason for quitting must be the impact of domestic violence on employee, spouse, minor child, or parent • Employee must reasonably believe continued employment would jeopardize safety of employee, spouse, minor child, or parent • Employee must have documentation (restraining order, peace order, police report) substantiating domestic violence

19. Bills on the Horizon in 2013

20. Bills on the Horizon in 2013 • Working Families Flexibility Act (HB1159) – gives employees right to meeting with employer to request changes in hours, time, and location of work, and to have 3rd party present for meeting • Workplace Bullying (SB999) – would make “abusive conduct” (including “derogatory and disparaging remarks”) by supervisors and coworkers illegal and impose liability on individual employees • Discrimination on the Basis of Employment Status (SB966) – would add “employment status” as a protected category to prohibit discrimination against the unemployed • Sexual Orientation and Gender Identity (SB212) – prohibits discrimination on the basis of gender identity (including transsexuals)

21. Questions?