Employment Law Update

In this issue:

• Amended Discrimination Law Will Require Employers to Provide Accommodations to Pregnant Employees
• New Process Allows Maryland Employees to File Liens for Unpaid Wages
• Deployment of Family Members in the Armed Services Act
• NLRB Posting Rule Declared Invalid

Amended Discrimination Law Will Require Employers to Provide Accommodations to Pregnant Employees
Governor O’Malley signed an amendment to Maryland’s employment discrimination law that will require employers with 15 or more employees to provide accommodations to employees who have pregnancy-related disabilities, unless doing so would cause the employer an undue hardship.
Background
Courts interpreting the federal Pregnancy Discrimination Act (PDA) and the Americans With Disabilities Act (ADA) have held that an employer does not violate the law by granting light duty and similar accommodations to employees with occupational injuries, while denying light duty to pregnant employees and others who sustain non-job related limitations. The courts have reasoned that it is not discrimination for an employer to treat a pregnant employee in the same manner it treats other workers who incur a disability off-duty.
The U.S. Equal Employment Opportunity Commission (EEOC) signaled in its recently announced Strategic Enforcement Plan that it may target employers who force pregnant women to take unpaid leave while providing accommodations to any other employees who have temporary disabilities. However, Title VII of the Civil Rights Act and the PDA, federal laws enforced by the EEOC, do not specifically require such accommodations and it is uncertain how the EEOC’s efforts will be received by the courts. By enacting the new pregnancy-related disability amendment, the accommodation requirement is now a matter of law for Maryland employers.
Reasonable Accommodation Defined
The new law amends the Maryland discrimination law’s definition of “reasonable accommodation” to include an accommodation “for an employee’s disability caused or contributed to by pregnancy . . . that does not impose an undue hardship” on the employer. Under the amended law, if an employee requests a reasonable accommodation, the employer must “explore with the employee all possible means of providing the reasonable accommodation.” The law provides that potential accommodations include:

• changing the employee’s job duties
• changing the employee’s work hours
• relocating the employee’s work area
• providing equipment
• transferring the employee to a less strenuous or less hazardous position, or
• providing leave

A transfer to a less strenuous or less hazardous position may also be required if the employee requests such transfer and the employer has a policy, practice, or collective bargaining agreement that requires or authorizes the transfer of employees with other non-pregnancy related disabilities, or if the employee’s health care provider recommends the transfer, and the employer can provide the transfer without: (1) creating a new job that the employer would not otherwise have created; (2) discharging another employee; (3) transferring another employee with more seniority, or; (4) promoting an employee who is not qualified to perform the job.
Employers May Require Medical Certification
An employer may require an employee seeking a pregnancy-related accommodation to provide a certification from her health care provider to support the need for the accommodation, but only to the same extent that the employer requires certifications from employees with other types of temporary disabilities. The law states that the certification shall include: (1) the date the reasonable accommodation became medically advisable; (2) the probable duration of the reasonable accommodation, and; (3) an explanatory statement as to the advisability of the reasonable accommodation.
Employers Must Provide Information In Writing About the New Law
The law requires employers to provide employees with information concerning an employee’s rights to a reasonable accommodation and leave for a pregnancy-related disability. The information must be posted in a conspicuous place – such as where other employment notices are posted - and included in any employee handbook maintained by the employer.
Effective Date
The new law takes effect October 1, 2013.

New Process Allows Maryland Employees to File Liens for Unpaid Wages
Effective October 1, 2013, a new law enacted by the Maryland General Assembly will provide an expedited process that allows an employee to obtain a lien on the personal or real property of an employer in the amount of any wages owed to the employee. For the purposes of the lien law, an “employer” includes a person who acts directly or indirectly with an employee on behalf of the employer. Accordingly, payroll officers and other employees responsible for making wage payment decisions may be personally subject to imposition of a lien under the law.
To establish a lien, the employee must serve notice on the employer in accordance with the rules for the service of legal process in a court action. The notice must provide the employer with adequate information about the wages claimed and the identity of the property against which the lien is sought. The Commissioner of the Department of Labor, Licensing and Regulation (DLLR) is expected to issue regulations that will establish the required content of the notice.
An employer may dispute the lien by filing a complaint in circuit court within 30 days after the notice of the lien is served and state any defenses it has to the claim. The employee has the burden of proof to establish that the lien should issue and either party may request an evidentiary hearing. The court must determine whether to issue an order establishing the lien within 45 days after the complaint is filed. If the court issues an order establishing the lien, the employee will be entitled to court costs and reasonable attorney’s fees. The employer may also be entitled to its costs and fees, but only if the court determines that the employee’s attempt to assert the lien was frivolous or made in bad faith.
Alternatively, a lien may be established without court order if the employer fails to file a complaint disputing the lien within the required 30 day period. The law does not provide any mechanism for an employer to challenge a lien once it is established, so it is important that employers file a complaint within the 30-day period after notice of the lien is served.
An employee may not contractually waive the right to seek a lien for unpaid wages. As a result, employers should carefully draft any release of claims to include an affirmation by the employee that he/she has been paid an amount equal to or greater than all wages due for worked performed through the date of the agreement. While such an agreement will not release a claim under the wage lien law, it may provide the employer with useful evidence if the employee subsequently seeks a lien for unpaid wages.
The lien for unpaid wages law was modeled on the Maryland Contract Lien Act. Under that law, however, a lien on property may be created only if the parties’ contract expressly provides for the creation of a lien in the event of a breach and expressly describes the property against which the lien may be imposed. By contrast, the new unpaid wage lien law requires no prior agreement and may be asserted against any real or personal property of the “employer.”
Finally, the new lien law does not preempt other remedies already available to an employee under applicable law. Accordingly, the employee may also file a traditional lawsuit seeking unpaid wages, overtime, and, if applicable, treble damages.

Deployment of Family Members in the Armed Services Act
Employers that employ fifty or more individuals will now be required to provide leave to an eligible employee on the day when a spouse, parent, step-parent, child, step-child or sibling of the employee is leaving for, or returning from, active duty outside the United States as a member of the armed forces. The law does not require that all fifty employees be employed in Maryland, so it apparently applies to any eligible employee who works in Maryland, regardless of how many other individuals the employer employs in the state.
To be eligible for leave under the new law, an employee must have worked for his/her employer for the twelve months prior to taking leave and for at least 1,250 hours during that twelve month period.
Employers may not require eligible employees to use sick, vacation or other paid time off when taking leave under the new law. Employers may, however, require employees who request leave under the law to submit proof verifying that the leave is taken when an immediate family member has been deployed or is returning from deployment. The law does not require that employees provide any advance notice of the need for leave.
The federal Family and Medical Leave Act (FMLA) also requires certain employers to provide eligible employees with leave to deal with the deployment of family members, among other military “exigencies.” The definitions of covered employers, eligible employees and qualifying family members, however, differ under FMLA and Maryland law. In addition, the Maryland law requires only a single day of leave for each deployment event, while employees eligible for exigency leave under FMLA may be entitled to as much as twelve weeks of leave for a variety of military service-related activities. Accordingly, employers must separately assess their responsibilities under both statutes.
The new Maryland deployment leave law becomes effective October 1, 2013.

NLRB Posting Rule Declared Invalid

In previous Updates we have detailed the on-again, off-again saga of the National Labor Relations Board’s (NLRB’s) posting rule. (See our previous Alerts on the rule in October, 2011 and January, March and April, 2012.) In August 2011, the NLRB issued a final rule requiring most private-sector employers to notify employees of their rights under the National Labor Relations Act (NLRA). Those NLRA rights include the right to act together to improve wages and working conditions, to form, join and assist a union, and to bargain collectively with their employer (as well as their right not to do so). An employer's failure to post the notice would have been treated as an unfair labor practice under the NLRA. The rule was to take effect on November 14, 2011, however, the rule quickly came under attack from business groups around the country.
In response to the legal challenges, the NLRB first postponed implementation of the new rule from its original effective date until January 31, 2012, and then again to April 30, 2012. The second postponement was made at the request of the federal court in Washington, D.C., which was hearing one of the legal challenges. In March 2012, the District of Columbia federal court upheld the Board's authority to issue the rule, although it struck down two of the rule's penalty provisions. The NLRB then announced that it would not implement the rule pending the resolution of the issues before the court. Shortly thereafter, on April 13, 2012, a federal district court in South Carolina rejected the rule in its entirety. The NLRB appealed both decisions.
On May 7, 2013, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit issued an opinion that marks the latest setback for the posting rule. Without reaching the hotly contested issue of whether the NLRB had the authority to issue the rule in the first place, the appeals court concluded that the NLRB violated the NLRA by making the failure to post the notice an unfair labor practice. The court held that the posting requirement also violated an employer’s constitutional right to free speech as it is the equivalent of compelling employers to communicate the NLRB’s position. In a concurring opinion, Judge Karen LeCraft Henderson stated: “[t]he NLRA . . . simply does not authorize the Board to impose on an employer a freestanding obligation to educate employees on the fine points of labor relations law. . . .” Finally, the court also held that the provision of the rule tolling the NLRA’s six-month limitations period if an employer failed to post the notice was invalid.
It is possible that the NLRB will appeal the ruling to the full D.C. Circuit or to the U.S. Supreme Court. At the present time, the NLRB’s positing rule is not in effect.

If you have questions regarding any of these employment matters, contact: