Labor & Employment Newsletter - October 2020
Date: October 30, 2020
Time to Vote: The Employer Obligation (Md, De, D.C., Va, Pa)
By: Steven E. BersAround this time of any election year, we encounter employer inquiries as to whether employers have an obligation to provide employees with “voting time leave” and if so, whether that time must be paid.
In Maryland, the answer is provided by statute, which provides that an employer is only required to provide time off if an employee’s schedule does not allow at least two hours of continuous off-duty time to vote during the entire time that the polls are open.
Currently, Maryland State Board of Elections has announced that Maryland polls will be open from 7am to 8pm, on Election Day. Thus a traditional 9am to 5pm employee need not be given time off during the day, nor allowed to arrive late, nor allowed to leave early to vote, although an employer certainly has the right to voluntarily provide those accommodations. If, however, an employee does not have the required continuous 2-hour off-duty window, one must be provided with pay, with a requirement that the employee provide proof that the employee “voted or attempted to vote.” Md. Code, Election Article, §10-315.
An interesting recent nuance arises from the fact that polls are open in 2020 for “early voting” in Maryland at approximately 80 voting centers, from 7am to 8pm, from October 26 to Election Day, November 3, 2020, including Saturday and Sunday. It is accordingly hard to imagine that any Maryland employee will not be able to have a continuous off-duty period of 2 hours when the polls are open.
Similarly, the District of Columbia recently passed its own law – the Leave to Vote Amendment Act of 2020 –, which gives all District employees the right to at least two hours of paid leave to vote. Under this law, an employer may ask the employee who wishes to utilize the paid leave to submit the request ahead of time. This law went into effect on October 1, 2020.
Neither Delaware, Pennsylvania nor Virginia have similar laws on the books, dictating the terms for allowing voting time off to employees.
Let’s Talk Politics - Suppression of Speech in the Workplace
By: Peter D. GuatteryAn employee responds to a racially derogatory social media post with a thumbs up. A customer complains that a clerk’s BLM mask is offensive. A tech CEO blasts a political endorsement to the millions of employees of client companies. Each of these scenarios presents an additional challenge to an employer already navigating the difficulties imposed by a once in a generation health crisis, and an increasingly polarized political climate. Such events could affect employee morale, invite online trolling, or even result in a disruption in operations or legal challenges, prompting the question as to what legal restraints there may be for employers to properly address each issue.
A common rejoinder to any effort to limit political speech is “Freedom of Speech.” While it is true that the First Amendment to the U.S. Constitution protects persons from governmental suppression of the right of free speech and expression, those guarantees do not apply to private enterprises and businesses. As a result, private employers have more leeway to address offensive, disruptive or inflammatory speech than do governmental organizations. Still, there may be limits imposed by applicable state or local law, which need to be considered.
The District of Columbia, for example, protects employees from discrimination on the basis of their political beliefs or political affiliation. An uneven application of corporate policy against political speech an employer disfavors could readily invite a complaint to the Office of Human Rights, or potential civil litigation. Moreover, some states have laws, which prohibit or severely limit an employer’s ability to take action against an employee based on activity that occurs outside of work. While an employer may be in a position to take action where the outside conduct has a direct impact on its business, the variation in applicable law needs to be considered in each case.
Likewise, where the political activity may involve conduct that relates to a protected classification, such as race, gender, sexual identity, or national origin, employers should be wary of potentially discriminatory application of work rules. Enforcing a policy against an employee wearing a BLM mask, after a customer complaint, while at the same time condoning an employee with a MAGA shirt is unlikely to pass scrutiny of the EEOC or local human rights commission. Strict application of uniforms or dress codes in all cases is, instead, a more equal response.
The National Labor Relations Act also provides some protection to employees who raise or seek to discuss concerns relating to working conditions and pay in the workplace. In this context, drawing a comparison between company culture and #MeToo or advocacy for more fair pay practices may well fall within the ambit of protected concerted activity under the NLRA. Generally, activities during non-working time, such as breaks or mealtimes, is permissible and may not be unreasonably limited by the employer. Activity while on duty, however, may usually be restricted. Likewise, employees may support political activities in furtherance of work related concerns while off duty, though they may be subject to discipline if they call off work to do so. The key to addressing all such conduct is having lawful, and neutrally applied work rules. Speech that is profane, defamatory or malicious is generally not protected.
The best response to each of these scenarios is to have lawful, non-discriminatory policies in place, which restrict political activity and expression in the workplace. This may include limitations on political insignia, buttons, hats and shirts, provided such limits comply with applicable NLRA law. Firm social media policies, which make clear the scope of acceptable on-line activity, as it may relate to or impact the employer, is also advisable. Racially offensive comments by an employee online should be viewed through the prism of the company’s EEO policies, company values and the potential impact such conduct may have on other employees and the company’s business reputation. It hardly needs to be said that an errant posting online may bring a torrent of unwelcome attention from the internet police, to the point that it becomes a distraction to regular business operations. Reminding employees of company policies as they relate to discrimination and harassment, and emphasizing that public comments in online forums should be guided by the same principles.
Establishing, communicating, and fairly enforcing company policies in a non-discriminatory, neutral manner will be an employer’s best protection against unacceptable and disruptive conduct, as well as against claims that, in enforcing such policies, the employer has unfairly trod on employee’s rights or unlawfully discriminated against them.
As problems created by third parties, such as the corporate email blast, a distinct set of issues come into play. This would include the scope of authorized use permitted by the vendor of the information utilized under the contract for services, among other concerns. An even handed, neutral tone, respectful of the employees’ privacy concerns is appropriate, as would be follow up to the vendor to voice any concerns.
Employer Alert: Two New Laws In Baltimore City
By: Kevin C. McCormickUnder the guise of COVID concerns, the Baltimore City Council passed two bills that will make doing business for certain employers in Baltimore City even that much more difficult. One of the Bills will require certain employers in Baltimore City to maintain a seniority based preferential hire list for any employees laid off due to the COVID pandemic. The second would require a successor Baltimore City hotel employer to retain the incumbent’s workforce in the event of a transfer of ownership for a certain period of time and refrain from discharging any of those incumbent employees hired during that period unless good cause can be established.
The legislation, which cleared the Council on October 2, 2020, has been forwarded to the Mayor’s Office for his final approval. Once approved by the Mayor, the pair of Bills will take effect upon enactment. Let’s take a closer look at these interesting pieces of legislation.
COVID-19 Employee Retention
(Council Bill 20-0543)This legislation requires certain successor employers taking control over certain incumbent employers to retain the incumbent’s employees, it also requires the incumbent employer to provide the successor business with a list of certain employees, and post a notice when the covered business undergoes a change in control.
What businesses are covered?
First introduced, this legislation was directed to a broad scope of Baltimore City employers, including commercial property employers, subcontractors that employed 25 or more janitorial, maintenance, or security service employees, and event center employers at a concert hall, stadium, arena, racetrack and convention center, other than the Maryland Stadium Authority and Hotels with 50 or more guest rooms or gross property receipts in 2019 exceeding $5 million.
However, prior to passage by the Council, commercial property owners and event center employers were excluded by amendment, leaving only Hotel employers covered under the legislation.
What does the new law require?
In essence, covered Hotel employers in Baltimore City who are selling their business will be required to provide to the successor employer the name, address, date of hire, and occupation classification of each employee, within 15 days after the execution of a transfer document. Then, beginning from the execution of the transfer period and continuing for 6 months after the business is open to the public, the successor employer shall maintain a preferential hiring list of the incumbent’s employees and only hire employees from that list during the six month period.
Subject to certain limitations, the successor employer shall offer to retain and, if accepted, actually retain each employee for no fewer than 90 days following the date on which the employee retained accepted employment with the successor employer. The employment offer to the incumbent’s employees must be in writing and remain open for 10 business days. Moreover, during that 90 day transition period, the successor employer must provide reasonable terms and conditions of employment. The successor employer may retain less than all of the incumbent employers employees under certain, limited circumstances. However, in the event the successor employer seeks to hire any additional employees, the successor must hire from a preferential hire list of the incumbent employees until all of those employees have been hired or offered employment.
During the 90 day transition employment period, the successor employer may not discharge an incumbent’s employee hired under the new law without just cause. At the end of the 90 day transition period, the successor employer must perform a written performance evaluation for each employee retained under the new law, and provided the employee receives a satisfactory rating, the successor employer shall consider, but is not required to offer the employee continued employment under the terms and conditions established by the successor employer.
The new law also requires that the incumbent employer shall post written notice of the change in control at the location of the affected business, within 5 business days of the execution of the transfer document, and shall remain posted during any closure of the business and for 6 months after the business is open to the public under the successor employer. The Notice shall contain the name of the incumbent employer and its contact information, the name of the successor business organization and its contact information and the effective date of the change in control.
How is the new law enforced?
The new law does not provide for a private cause of action to enforce its provisions. Instead, any person or group seeking to enforce the new law must file a complaint with the Baltimore City Wage Commission, to be investigated. In the event that the Commission finds probable cause, and issues a Final Order, the Commission may require the reinstatement of employees as required by the new law and require the payment of all wages and other compensation owed for the period of time that the employees were unlawfully terminated, with interest compounded at 10% per annum. In addition, the Commission may also fine any successor employer who violates the new law with a civil penalty of $250 for each violation for a 1st offense; $500 for each violation for a 2nd offense; and $1,000 for each violation for subsequent offense.
What if the incumbent Hotel has a collective bargaining agreement with a union?
The new law expressly provides that any of its terms may be waived in a bona fide collective bargaining agreement, but only if the waiver is expressly set forth in clear and unmistakable terms. However, it should be noted that an incumbent or successor employer is prohibited from requesting an incumbent employee to waive any rights under the new law, except in the context of collective bargaining.
When is the new law effective?
By its terms, the new law takes effect on the date of enactment (if and when it is signed by the Mayor) and will remain effective through December 31, 2022.
COVID- Laid-Off Employees Right of Recall
(Council Bill 20-0544)This legislation requires certain employers to recall employees who have been laid off after the imposition of the COVID-19 state of emergency, specifies the procedures by which the recall would operate and prohibits retaliation against employees for seeking assistance from or cooperating with the Baltimore City Wage Commission.
What businesses are covered?
This new legislation applies to all “commercial property employers” or owners, operators, managers or lessee, including a contractor, subcontractor or sub-lessee of a non-residential property in the City of Baltimore that employs 25 or more janitorial, maintenance, or security service employees.
Event center employers that own, operate or manage a public or private structure in Baltimore City used for public performances, sporting events, business or similar events that have 50,000 square feet in total area or have a seating capacity of 1,000 seats or more are also included. The Maryland Stadium Authority is expressly excluded from the new legislation as are hospitals, as defined under Maryland law.
Hotel operators in Baltimore City with 50 or more guest rooms or gross property receipts in 2019 exceeding $5 million are also included.
What does the new law require?
In essence, covered employers shall make an offer to a laid-off employee for any position, which is or becomes available for which the laid off employee is qualified once the employer reopens and starts to recall employees. A “laid-off” employee is defined as an employee who was employed 90 days or more in the 12 months preceding their most recent separation from active service or the failure to be scheduled for customary seasonal work from that employer, who performed in a particular workweek at least 2 hours of work within Baltimore City for that employer and whose lack of work occurred on or after March 5, 2020 as a result of a lack of business, reduction in the workforce or any other economic and non-disciplinary reason.
Under the new legislation, there is a rebuttable presumption of fact that any termination occurring on or after March 5, 2020 was due to a non-disciplinary reason.
The new legislation also contains some specific exclusions, including any employee who was prior to the separation, a manager, supervisor or confidential employee and with respect to a commercial property employer, a “laid-off employee” is limited to only the separated janitorial, maintenance, or security service employees for the commercial property employer.
A covered employer must make an offer to a laid-off employee for any position which is or becomes available for which the laid-off employee is qualified, or has prior experience within the position or has the same skills required by the position and would not require additional training.
If more than one laid-off employee is entitled to preference for a position, the employer shall first offer the position in order of seniority by length of service. The laid-off employee who is offered rehire, must be given at least 5 business days in which to accept or decline the final offer.
How is the new law enforced?
The new law does not provide for a private cause of action to enforce its provisions. Instead, any person, or group seeking to enforce the new law must file a complaint with the Baltimore City Wage Commission, to be investigated. In the event that the Commission finds probable cause, and issues a Final Order, the Commission may require the reinstatement of laid-off employees as required by the new law and require the payment of all wages and other compensation owed for the period of time that the employees were unlawfully terminated, with interest compounded at 10% per annum. In addition, the Commission may also fine any covered employer who violates the new law with a civil penalty of $250 for each violation for a 1st offense; $500 for each violation for a 2nd offense; and $1,000 for each violation for subsequent offense.
What if the incumbent covered employer has a collective bargaining agreement with a union?
The new law expressly provides that any of its terms may be waived in a bona fide collective bargaining agreement, but only if the waiver is expressly set forth in clear and unmistakable terms. However, it should be noted that a covered employer is prohibited from requesting a laid-off employee to waive any rights under the new law, except in the context of collective bargaining.
When is the new law effective?
By its terms, the new law takes effect on the date of enactment (if and when it is signed by the Mayor) and will remain effective through December 31, 2022. This means that the preferential recall list may be required until all of the laid-off employees are rehired or decline any such offer, through December 31, 2022.
Bottom Line
Although these two new pieces of legislation may be directed primarily to Baltimore’s hospitality industry, all employers in Baltimore City should be concerned about their likely enactment, as the City Council may focus your workplace or industry “to improve” next.
In an industry that has been hit hard by the COVID crisis, with forced closure of in person conferences, events and low occupancy rates, Baltimore’s hospitality industry needs significant constructive help to recover, not additional governmental tinkering, pushed in large part by Baltimore’s hospitality unions. In fact, one of the larger hotels in Baltimore’s Inner Harbor is currently in labor negotiations with its union over a new collective bargaining agreement. One common provision in most labor agreements is how laid off employees would be recalled, based on the Hotel’s specific needs or straight seniority. The new legislation, Council Bill 20-0544, once enacted, would define that policy by legislative fiat, and not by the parties at the bargaining table.
Not surprisingly, on July 6, 2020, the Baltimore City Department of Law issued an opinion regarding Council Bill 20-0544, refused to approve the legislation for form and legal sufficiency, finding the bill amounted to an unconstitutional impairment of the employer/employee freedom of contract. Yet despite that compelling legal opinion from Baltimore’s own Department of Law, the City Council ignored it, relying instead on opinions from union paid California attorneys.
Keep in mind that this is not the first time that the Baltimore City Council has legislated its way into the employment area for Baltimore City employers. In June, 2017, the Council enacted “Displaced Workers Protection”, City Code Article 11, Subtitle 18. That legislation requires that Baltimore City employers who are awarded, or take over contracts to perform security, janitorial, building maintenance, or food preparation to make offers of employment to any predecessor contractor’s service workers for a 90 day transition period. The covered employer is also prohibited from discharging any of these employees during the 90 day transition period without just cause.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.