While much of the recent Maryland Legislative session was consumed with the coronavirus crisis, several pro-employee bills were passed. These bills address race discrimination, sex discrimination, pay equity, and wage transparency. All will become effective October 1, 2020 without the signature of Governor Hogan, who declined to hold any bill signing ceremonies this month. The following summarizes the relevant laws, as well as, provides recommendations for Maryland employers.
Protection for Racial Traits and Hairstyles
House Bill 1444 amends definition of “race” in the Human Relations title to include “certain traits associated with race”, including hair texture, afro hairstyles and “protective hairstyles”. A “protective hairstyle” includes braids twists and locks. This definition of race applies to not only employment discrimination, but also discrimination by licensed professionals and discrimination in public accommodations, housing, and leasing of commercial property. The vagueness of the statutory language – “certain traits associated with race” – is sure to spur uncertainty and litigation.
House Bill 14 expands employee protection from retaliation in connection with wage inquiries. For context, Maryland law promotes wage transparency as a means towards equal pay for equal work. It is illegal for a Maryland employer to:
- prohibit employee inquiries, discussions and disclosures about wages
- require employees to waive their rights concerning wage information
- take adverse actions against employees for exercising their wage information rights or encouraging other employees to exercise their wage rights.
The amendment clarifies that an employer cannot take adverse action against an employee for inquiring about their own wages as well as asking about another employee’s wages.
Wage Range and Wage History
House Bill 123 also furthers the public policy of equal pay for equal work, but in the recruiting and hiring phase. First, employers must provide an applicant with the wage range for the position applied for upon request of the applicant. Presumably, this mandate applies to internal as well as external recruiting.
Moreover, employers are prohibited from:
- refusing to interview, hire, employ or otherwise retaliating against an applicant who does not provide a wage history or requested a wage range
- relying on an applicant’s wage history in screening, consideration or setting wages for an applicant
- seeking wage history from a current or former employer of the applicant
After an initial offer of employment is made with an offer for compensation, employers have more leeway to use a voluntarily-provided wage history as long as use of the wage history doesn’t create an unlawful pay differential based on sex or gender identity. With this caution in mind, employers are allowed to:
- Rely on a voluntary wage history to support a wage offer higher than the initial offer
- Confirm a voluntary wage history to support a wage offer higher than the initial offer
Recommendations for Employers and Independent Schools:
- Revise employment applications in light of both state and local laws, including the “ban the box” initiatives at the county and state level.
- Update screening protocols and training for hiring committees.
- Decide in advance of posting a position what salary information will be provided to applicants and provide the same information to every applicant which requests it. Ideally, the hiring committee should not be giving information about who requests wage range information just as they are not given protected demographic information.
- Revise Employee Handbooks to reflect new laws.
While employers and employees alike are focused on the coronavirus pandemic, it is incumbent on employers to ensure compliance with all new laws so as not to inadvertently expose themselves to liability.