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Maryland Legislative Summary 2012

May 31, 2012

The Maryland General Assembly ended its Session on April 9, 2012, passing several laws affecting employers.  The following bills are poised to become law:

  • Internet and Electronic Account Privacy Protection Act (House Bill 964/Senate Bill 433).  Beginning October 1, 2012, all Maryland employers are prohibited from requiring employees or applicants to turn over passwords needed to access private websites, including those used for social media.  Specifically, the law bars employers from requiring or even requesting that an applicant or employee divulge his or her “user name, password, or other means for accessing a personal account or service through an electronic communication device.” Employers may, however, require employees to divulge passwords for “nonpersonal accounts or services that provide access to the employer’s internal computer or information systems.” The law does not define what is a “nonpersonal” account nor does it make any exception to allow employers to demand access to personal accounts that are used to access work accounts.  For more information regarding this law, please see an article in our blog, the Labor & Employment Report, which discusses the implications of the new law.
     
  • Jury Service (House Bill 353/Senate Bill 16).  This law prohibits employers from discharging or otherwise retaliating against an employee who loses work time because they are summoned for jury service or acts related thereto.  It also prohibits an employer from requiring an employee who appeared for jury service for four or more hours, including travel time, to work a shift that begins on or after 5:00 p.m. on the day of jury service or before 3:00 a.m. on the day following service.  The law does not, however, prevent an employee from allowing an employee to work if the worker so chooses, rather it only prohibits the employer from requiring the employee to work.  The law takes effect on October 1, 2012.    
     
  • Workplace Fraud Act – Revisions (Senate Bill 272).  The Workplace Fraud Act was enacted in 2009 and imposes liability on employers in the construction and landscaping industries for misclassifying employees as independent contractors.  Under the current law, workers in these industries are presumed to be employees, and the burden is on the business to show that the worker is not an employee.  Since the Act’s passage, there have been issues with the burdensome process to overcome this presumption and the enforcement procedures.  The amendments passed by the legislature in this most recent session are intended to make compliance with the Act easier. 

The legislature passed the following amendments to the Act, which take effect on July 1, 2012:

  • The business can overcome the presumption of employment by producing specific documents for inspection to the Maryland Department of Labor, Licensing & Regulation (“DLLR”).  If all the required documents are provided, then the burden shifts to the DLLR to show that the worker is an employee;
     
  • Businesses may choose to provide copies of records, rather than allow auditors to come onsite; and
     
  • Once the business has provided all the requested records, the DLLR must promptly issue a citation or close its investigation within 90 days.  If a business requests a hearing within 15 days of issuance of a citation, the hearing must be held within 90 days of the request.
     
  • Privileged Communications or Information Involving Labor Organizations (Senate Bill 797).  Beginning October 1, 2012, certain communications between a bargaining unit employee and his or her union official will be considered a privileged communication. The new law prohibits a labor organization or its agent from being compelled to disclose “any communication or information the labor organization or agent received or acquired in confidence from an employee while the labor organization or agent was acting in a representative capacity concerning an employee grievance.” The privilege applies where the grievance is the subject matter of an investigation, grievance proceeding, or a civil court, administrative, arbitration, or other civil proceeding.  This privilege is broadly defined, although there are some important circumstances where the union or its agent must disclose the communication:
    • In a criminal proceeding;
    • If the communication was not “germane to a grievance of the employee;” and
    • Where it is reasonably necessary to prevent “certain death or substantial bodily harm. 

While the privilege protects the communication or information received by the labor organization or its agent, it does not protect the employee from being compelled to disclose the facts underlying the communication.  

In addition, the union or its agent may disclose the communication if there is a reasonable belief that it is necessary to:

  • “Prevent the employee from committing a crime, fraud or any act in violation of a collective bargaining agreement (“CBA”) that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the employee has used or is using the services of the labor organization or its agent;”
     
  • Prevent, remedy, mitigate or rectify substantial injury to another person’s property or financial interests that has or will result from the employee’s criminal act;
     
  • Secure legal advice about the compliance of the union or its agent with a court order or the CBA;
     
  • Establish a claim or defense in a legal dispute between the employee and the union or its agent; or
     
  • Comply with a court order, other law, or the terms of the CBA. 

The union or its agent may also disclose the communication where:

  • The communication or information is an admission that the employee committed a crime;
     
  • The disclosure is necessary in any court, administrative, arbitration or other proceeding against the union or its agent in his or her personal or official representative capacity;
     
  • The employee consents to the disclosure or waives the confidentiality of the communication;
     
  • The employee is deceased or has been adjudicated incompetent and the union has the consent of the personal representative of the estate or the employee’s guardian; or
     
  • Required by court order.

Finally, the Act contains a savings clause that states that where this law conflicts with any State or Federal labor law, then the State or Federal law will control.