It has been a year of many difficult adjustments for all Maryland employers. A few more changes lie ahead, as new employment (and related) laws take effect October 1, 2020.
The new laws include human relations protections, hate crime symbols, prohibitions on wage history inquiries, business relocations and layoffs, and use of artificial intelligence facial recognition.
State Human Relations Law Protects Against Discrimination on the Basis of Natural and Protective Hairstyles.
The Maryland Human Relations Law prohibits discrimination in employment, housing, and access to public accommodations. But, until now, it has not included a definition of “race.”
The Human Relations Law has been amended to add the following definition: “’Race’ includes traits associated with race, including hair texture, afro hairstyles, and protective hairstyles.” The amendment further clarifies that the term “Protective Hairstyle” includes “braids, twists, and locks.”
This amendment follows the enactment of Montgomery County’s Creating a Respectful and Open World for Natural Hair (CROWN) Act in February 2020. The CROWN Act prohibits discrimination on the basis of natural hairstyles such as braids, locks, afros, curls, and twists, and was the first law of its kind in the country, although several jurisdictions have now followed Montgomery County’s lead. Testimony taken during hearings on the CROWN Act revealed the impact of bias against those with natural and protective hairstyles in terms of hiring, opportunities denied during employment, and subjection to hostile work environments. Accordingly, these legal developments are fundamental to the prevention of unlawful employment practices.
Maryland employers with 15 or more employees are required to comply with the state Human Relations Law. The CROWN Act amends the Montgomery County Human Rights law, which applies to employers with one or more employees.
- What Should Employers Do Now? Covered employers should train managers and staff that employment decisions may not be made on the basis of any protected characteristic, including, but not limited to, natural and protective hairstyles, and update their equal employment opportunity and anti-harassment policies, in advance of October 1.
Threatening and Intimidating Items and Symbols Now a Hate Crime.
The act by any person of placing or inscribing “an item or a symbol, including an actual or depicted noose or swastika, whether temporary or permanent, on any real or personal property, public or private, without the express permission of the owner, owner’s agent, or lawful occupant of the property, with the intent to threaten or intimidate any person or group of persons” will now constitute a hate crime.
This amendment to the Criminal Law Article has clear implications for employers because of their legal obligation to prevent unlawful workplace harassment on the basis of protected characteristics which may be targeted by such items or symbols. Moreover, this amendment should create a strong incentive for those charged with preventing and correcting unlawful workplace conduct to take seriously, thoroughly investigate, and promptly remedy the appearance in any workplace of threatening or intimidating items or symbols, lest their disregard be seen as aiding the criminal act.
- What Should Employers Do Now? Employers should add provisions to their anti-harassment policies explicitly prohibiting threatening or intimidating items or symbols in the workplace including, but not limited to, nooses and swastikas, and warning employees that conduct in violation of the criminal law may be reported to law enforcement. All anti-harassment policies, of course, should encourage and provide an avenue for individuals to report, in good faith, perceived violations of the policy – and protect them from retaliation for doing so.
Amendments to The Equal Pay For Equal Work Act Require Wage Range Disclosure and Prohibit Wage History Inquiries.
Employers will be required to provide a job applicant with the wage range for the position the applicant is applying for, upon request. Also, employers may neither ask nor require applicants to provide wage history when applying for a position, and cannot retaliate against applicants (or refuse to interview, hire, or employ them) for not providing their wage history (if improperly requested) or for requesting the wage range.
Similarly, an employer may not screen out applicants based on their wage history or use their wage history in determining what wage to offer. And, just as the employer cannot require the applicant to disclose their wage history, the employer cannot seek it out indirectly from another employer, employee, or agent.
Nothing prohibits applicants from volunteering their wage history, but it may not be considered by the employer unless the applicant initiates negotiations for a higher wage after an initial employment offer, including a specific offer of compensation, has been extended. In that case, if the applicant provides wage history voluntarily as part of that negotiation, the employer may rely on that wage history or seek to confirm it. However, if the applicant and the employer negotiate a wage higher than that originally offered, that wage rate may not create an unlawful wage differential based on sex or gender identity.
Finally, the Equal Pay for Equal Work Act was also amended by clarifying that employers are prohibited from taking adverse employment action against any employee who inquires about their own wages, as well as those of other employees. This amendment closes a loophole in a recently enacted wage transparency provision.
- What Should Employers Do Now? Maryland employers should update their applications to remove questions about wage history. Employers should train hiring managers and recruiters not to request wage history from or about any applicant. Hiring managers must also be trained about the anti-retaliation provisions and the limited circumstances under which voluntarily-provided wage history information may be considered and/or confirmed. Employers should also implement processes for review of final offered wages (if negotiated up from an initial offer) to ensure they do not create an unlawful wage differential on the basis of sex or gender identity. Finally, although the law, as amended, does not expressly require employers to formalize wage ranges, it would be prudent to do so.
60 Days’ Advance Notice of Certain Business Relocations and Layoffs Becomes Mandatory.
Significant changes have been made to the Economic Stabilization Act, including making mandatory a 60-day advance written notice of covered reductions in operation by employers with 50 or more employees. Reductions in operations include (1) relocation of work premises, and (2) layoffs affecting the greater of 15 employees or 25% of the workforce over a three-month period. For a detailed discussion of this law see “New Law Requires Some Maryland Employers to Give Advance Notice of Relocations and Layoffs.” However, there are two essential things to keep in mind: (1) this law does not follow the WARN Act in terms of exceptions to notice requirements, so employers who are not subject to WARN may be subject to the mandatory requirements of this law; and (2) substantial penalties may apply to the tune of up to $10,000 per day that notice is not given.
- What Should Employers Do Now? Employers with 50 or more employees who are planning reductions in operations that will occur on or after October 1, 2020, should carefully review all of the criteria for both this law and the WARN Act to ensure that they are complying with all applicable requirements.
Use of Artificial Intelligence Facial Recognition Technology During Hiring Process Requires Consent and Waiver.
This requirement prohibits employers from using artificial intelligence facial recognition technology to prepare a facial template of an applicant without first obtaining the applicant’s written consent and waiver.
Facial templates are used increasingly in candidate screening and evaluation. Essentially, this technology interprets physical and emotional behaviors, speech patterns, and other cues about intelligence, competence, and suitability for a position, based on a “template” derived from such cues obtained from people who are successful in the position Although there are a number of concerns about the utility and accuracy of artificial intelligence for this purpose, and that screening applicants based on cues common to those successful in a position will perpetuate selection based on the gender, race, and other characteristics of incumbents, it also creates privacy concerns for the safeguarding of applicants’ biometric information. This amendment does not address any of those concerns, or provide any safeguards for the applicant other than the requirement of an applicant’s consent and waiver.
- What Should Employers Do Now? Employers whose hiring practices include the creation and use of facial templates should prepare consent and waiver forms consistent with the requirements of this new law before October 1.
Melissa Calhoon Jones, chair of the labor and employment group, counsels companies on employment, labor, and immigration issues. For more information about this regulation and other employment concerns, please contact her.
This information has been prepared by Tydings for informational purposes only and does not constitute legal advice.