Maryland Employer Alert: Frank Kollman Addresses Latest Legal Trends

Author: David B. Weisenfeld, XpertHR Legal Editor

June 12, 2014

Mid-year tends to be a busy time for state legislatures and that has certainly been true in Maryland where a bevy of new employment laws have been signed. The result is a host of new considerations for HR and employers.

Frank Kollman, a name partner in the Baltimore law firm of Kollman & Saucier, has spoken nationally on many labor and employment law issues. Kollman shared his insights with XpertHR about these latest legal trends affecting Maryland employers.

What notable new Maryland laws or court rulings in the last nine months will have a big impact on the workplace?

Kollman notes that while there have not been any notable court rulings, the Maryland legislature and Baltimore City Council have both been rather active of late. In May, Baltimore joined other jurisdictions that have made it illegal for most private employers to ask job applicants, pre-hire, whether they have a criminal record.

This so-called "ban the box" law refers to eliminating the box often included on job applications that prospective employees are asked to check off if they have ever been convicted of a crime. Maryland enacted a "ban the box" law in 2013, but that measure is limited to public employers.

The Baltimore ordinance applies to all private employers in the city with 10 or more employees in addition to public employers. It also goes further than the state law in precluding an employer from asking criminal history questions until after a conditional hiring offer has been made.

Meanwhile, Maryland has four recent legal developments that Kollman cites as affecting employers:

• Legalizing medical marijuana;
• Adding gender identity to the list of categories protected from discrimination;
• Increasing minimum wage to $8.00 on January 1, 2015, then gradually raising it to $10.10 by 2018; and
• Adopting a parental leave requirement.

Maryland legalized medical marijuana this spring, joining a nationwide trend. Kollman notes that state laws elsewhere have provided that medical marijuana laws do not require employers to allow marijuana use, but Maryland has not - at least not yet.

He advises, "Until there is more guidance, employers should treat medical marijuana just like ordinary marijuana" when it comes to drug tests. "Much like alcohol, it may not be illegal, but you don't want your workers impaired so it's still fair game to take a failed test into account."

Gender Identity Protection and Minimum Wage Increase

The Fairness for All Marylanders Act (SB 212) will prohibit discrimination, harassment and retaliation against individuals based on gender identity. The Act will take effect on October 1, 2014. This new law follows the Civil Marriage Protection Act, Maryland's law allowing same-sex couples to marry, which took effect in January 2013. Maryland law already prohibits discrimination based on sexual orientation.

Kollman sees the gender identity law as making life more difficult for employers. "There will be a lot of people saying, 'Well, what is it that I'm supposed to do?'" he cautions. At the same time, Kollman is quick to add, "The number of calls I'm going to get on the minimum wage increase will far exceed the number of gender identity issues out there."

Under that increase, Maryland will gradually raise its minimum wage to $10.10 an hour by 2018 with an increase to $8.00 taking effect on January 1, 2015.

Filling an FMLA Gap

Another notable development Kollman cites is Maryland's new parental leave requirement. Governor Martin O'Malley signed the measure on May 5, which allows eligible employees to take up to six weeks of unpaid leave in any 12-month period for:

• The birth of the employee's child; or
• The placement of a child with the employee for adoption or foster care.

Kollman clarifies that, while the Family and Medical Leave Act (FMLA) covers employers with 50 or more employees, Maryland's Parental Leave Act (SB 737) would apply to employers with 15 to 49 employees. As a result, a large group of workers excluded by the FMLA would receive protection under the Maryland law. The parental leave requirements take effect October 1.

Are there any bills pending in Maryland that would have a big effect on employers if passed?

The Maryland Legislature has adjourned for the year so nothing is imminent after its busy spring.

Are there any notable labor and enforcement trends to watch in Maryland?

Kollman cites the resurgence of wage and hour lawsuits as being at the top of the list. "Employers still consistently misunderstand the requirements of the Fair Labor Standards Act as to minimum wage and overtime requirements," he said. "More employers are being sued under the Maryland Wage Payment and Collection Law for failing to pay employees amounts due upon termination."

The Baltimore attorney adds that the National Labor Relations Board, in trying to protect the rights of employees to discuss wages, hours and working conditions, has held civility rules illegal and ordered employees reinstated for making statements that, in the past, generally would have resulted in discharge.

Kollman also asserts that the Board is trying to take over regulating what employers may do about employee use of social media, such as Twitter and Facebook.

What is the number one mistake you see employers making today?

"The number one mistake, if I have to identify one, is the failure to train supervisors - especially newly-promoted supervisors," says Kollman. "The best employees do not necessarily make the best supervisors, and an untrained supervisor is a recipe for disaster."

He notes that an employer may understand the laws affecting the workplace, but if an untrained supervisor does not, that can and will create liability risks. "Supervisors also need to know how to talk to employees and write proper disciplinary notices, evaluations and other HR documents."

What is the biggest challenge facing HR in Maryland these days?

According to Kollman, the biggest challenge is dealing with the proliferation of laws that call for more time off for employees. "Businesses need to operate, and if employees can take excessive time off without consequences, nothing will get done," he says bluntly. "I spend way too much time advising employers on whether they can fire chronically-absent employees."