Governor Martin O’Malley has signed into law two bills enacted during the last session of the legislature which make significant changes in the legal landscape related to employees’ claims for unpaid wages and the obligation to accommodate employees who are pregnant.
The Maryland Wage Payment and Collection Law (“WPCL”) enables employees to sue employers for compensation which they are allegedly owed and to recover liquidated damages and attorneys’ fees if they prevail. The new law adds another weapon to the remedial arsenal available to such employees.
That law permits employees to obtain liens on their employers’ real and personal property for wages, other than commissions, allegedly owed for their services. An employee may record the lien: (1) with the clerk of the Circuit Court in the county where any part of the property is located; or (2) in the same manner that financing statements are filed under commercial law. An employee must record the lien within 180 days after serving the employer with notice of it.
Within 30 days after receiving a notice, the employer may challenge the validity of the lien by filing a complaint in the Circuit Court and the employer or the employee may request an evidentiary hearing. If the court rules against the employer, the employee will be entitled to the lien and to an award of the attorneys’ fees. The employer, however, will be entitled to such an award only if the employee’s claim was frivolous or made in bad faith – a showing which is almost impossible to make.
If enforced by the court, the lien becomes a secured claim against the employer’s property and subsequent purchasers are considered to have notice of it. An employee may enforce the lien, which is valid for 12 years after recordation, in the same way judgments are enforced, including by attaching and forcing a sale of the subject property.
Before the new law was enacted, an employee had the burden and cost of filing a lawsuit against the employer under the WPCL. The primary effect of the new law is to shift that burden to the employer if it wants to contest the employee’s entitlement to the wages at issue. By doing so, the law will up the ante for an employer who refuses to pay wages rightfully owed in the hope that an employee will not follow through on suing under the WPCL. In that regard, the law may also reduce the caseload of the courts which have had to deal with such lawsuits.
This law requires employers with at least 15 employees to provide reasonable accommodations for employees diagnosed with a “disability” caused or contributed to by pregnancy. Maryland’s employment discrimination statute has defined a “disability” to include: (1) a physical disability or infirmity or mental impairment or deficiency; and (2) being perceived or having a record as having such an impairment.
The new law specifies that reasonable accommodations may include measures, such as providing leave or changing an employee’s hours, work location, or job duties or assignment, which do not impose an “undue hardship” on the employer. An employer may be required to transfer an employee temporarily to a less strenuous or hazardous position for the duration of a disability, but only if: (1) the employer has a policy, practice, or collective bargaining agreement which requires the transfer of temporarily disabled employees; or (2) the employee’s healthcare provider advises that a transfer is needed and the employer determines that it can be provided without creating additional employment, discharging another employee, transferring a more senior employee; or promoting an unqualified employee.
An employer may require the employee to provide certification from her healthcare provider which states the date the accommodation became medically advisable, the probable duration, and an explanation of the medical advisability. The law requires employers to post notices informing employees of their legal rights and prohibits denying or interfering with those rights. The law does not expressly provide a remedy for such unlawful conduct, but employees will be able to use the remedies provided by the Maryland Human Relations Act, which include filing a lawsuit and/or a discrimination charge with the Maryland Human Relations Commission.
From a practical standpoint, this law does not increase or otherwise affect employers’ legal obligations under existing state and federal statutes, such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. Indeed, opponents of the law repeatedly and correctly pointed out to the legislature that the pending bill was unnecessary for that reason. Despite that fact, some politicians felt the need to enact this legislation in order to satisfy certain constituents.
As a consequence, employers should continue to deal with pregnant employees’ accommodation requests in the same manner, with the only additional requirement that the notices required by the Maryland law should be posted in the workplace.