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MD: Disclosing Sexual Harassment Act

Maryland's "Disclosing Sexual Harassment in the Workplace Act of 2018" took effect on October 1, 2018. The Act prohibits certain waivers related to an employee's future sexual harassment claims and future retaliation claims for making a sexual harassment claim. It also requires employers with at least 50 employees to complete a survey disclosing the number of sexual harassment settlements in which the employer has entered.
The Act passed the Maryland General Assembly nearly unanimously and was signed into law by Governor Larry Hogan in May.
Restrictions on Agreements
The Act specifies that, effective October 1, 2018:
*       Except as prohibited by federal law, any provision in an employment contract, policy, or agreement that waives any "substantive or procedural right or remedy to a claim that accrues in the future of sexual harassment or retaliation for reporting or asserting a right or remedy based on sexual harassment" is null and void.
*       Employers may not discharge, suspend, demote, discriminate against, or otherwise retaliate against an employee who refuses or fails to enter into an agreement that contains a waiver that is void under the Act.
*       An employer who enforces or attempts to enforce a provision that violates the Act will be liable for the employee's reasonable attorney's fees and costs.
Possible Preemption of the Act as it Relates to Arbitration Clauses
The Act raises many questions. The most significant may be regarding the Act's restrictions on waivers in employment agreements and the effect the Federal Arbitration Act (FAA) may have on it and an employer's ability to require mandatory arbitration of future sexual harassment and retaliation claims.
Although the Act prohibits agreements that waive substantive and procedural rights or remedies for future sexual harassment and retaliation claims (which would appear to include pre-dispute mandatory arbitration agreements), the Act includes a carve-out: "except as prohibited by federal law." In AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), and Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018), the U.S. Supreme Court held that the FAA strongly favors the enforcement of arbitration agreements. Thus, if an employee agreement contains a mandatory arbitration clause covered by the FAA, then the FAA may preempt the new Maryland statute. This means the arbitration clause would be in effect and would not be void.
In the event an arbitration clause is not preempted by the FAA and, therefore, is considered null and void under the Act as it relates to future sexual harassment claims, an employer faces the prospect of parallel proceedings in different forums. For example, assume, as is often the case, that an employee entered into an agreement that requires arbitration of all future claims, including sexual harassment claims, race discrimination claims, and sex discrimination claims. The Act purports to ban such an arbitration clause only as it applies to the future sexual harassment claims. Thus, if the employee later asserts claims of sexual harassment, race discrimination, and sex discrimination, the employer could not require arbitration of the sexual harassment claims, which would be litigated in court instead, but theoretically could require arbitration of the race and sex discrimination claims.
Other Implications of the Act's Restrictions on Waivers in Employment Agreements
The Act likely prohibits other types of provisions commonly included in employee agreements, such as jury waivers, statute of limitations restrictions, and limitations on remedies. However, the Act imposes only restrictions on waivers relating to future claims of sexual harassment and retaliation and, therefore, does not prevent employers from settling sexual harassment or retaliation claims that have accrued as of the date of a settlement agreement. The Act also does not appear to invalidate past sexual harassment or retaliation settlement agreements.
Although the Act does not take effect until October 1, 2018, it applies to any agreement "executed, implicitly or explicitly extended, or renewed on or after" that date. It is unclear under what circumstances employment agreements for at-will employees that were entered into prior to October 1, 2018, will be considered to have been "implicitly" extended after that date. For example, it is unclear whether an at-will employment agreement will be considered to have been "implicitly extended" after October 1 simply by an employer continuing an at-will employment relationship with an employee beyond that date.
The Act also does not define "sexual harassment" and in some cases it may not be clear whether the Act applies.
Survey Requirements
The Act also requires employers with at least 50 employees to submit a survey to the Maryland Commission on Civil Rights (MCCR). The survey must contain:
1.     The number of settlements made by or on behalf of the employer of an allegation of sexual harassment by an employee;
2.     The number of times the employer paid a settlement to resolve a sexual harassment allegation against the same employee over the past 10 years of employment; and
3.     The number of settlements made of an allegation of sexual harassment that included a confidentiality provision.
This information must be submitted on or before July 1, 2020, and again two years later (on or before July 1, 2022).
The MCCR will publish the aggregate results of the survey online. The MCCR will make available for public inspection, upon request, the results from a specific employer regarding the number of times the employer paid a settlement to resolve a sexual harassment allegation against the same employee over the past 10 years of employment.
Who is considered an "employee," for purposes of meeting the 50-employee threshold under the survey reporting requirements, is also an open issue under the Act.
Next
Employers should review their current policies and employment agreements carefully with labor and employment counsel to determine compliance with the Act. Employers also should consult with their labor and employment counsel regarding the various issues raised by the Act and obtain guidance regarding meeting the requirements of the statute.
Employers with at least 50 employees should create a system for tracking sexual harassment settlements in order to meet the Act's reporting requirements.
In addition, multistate employers should consider that other states (e.g., New York and Washington) have enacted similar laws. Likewise, federal and state legislatures are considering similar measures.

Our Offices Have Moved

Come see us in our new office space:

02E88949

9160 Red Branch Road

Suite E-9

Columbia, MD 21045

The move will take place September 28 - October 1.  

Our phone, web, and email remain the same.

Hurricane Preparedness

Vincent Allen, SVP at USI and long-time PGAMA member has provided the following guidance for keeping your business and employees safe during this major weather event.  If you need further assistance, please contact Vincent at 571-369-5114, mobile: 240-271-2516 or This email address is being protected from spambots. You need JavaScript enabled to view it.

2018 07 01 USI RM Guidebook Flood Preparedness FINAL

 

2018 07 01 USI RM Guidebook Hurricane Preparedness FINAL

ITC Votes Unanimously Against Newsprint Tariff

In a major victory for the printing industry, Printing Industries of America is pleased to announce that the United States International Trade Commission (ITC) has unanimously ruled to terminate duties currently being applied to uncoated groundwood paper, or newsprint, imports from Canada. This decision ends the tariff, and funds collected to date will be reversed over a period of three to six months.

From the start, we knew this tax on newsprint would immediately harm commercial printing companies, book printers, service companies, equipment suppliers, and ultimately, consumers. After analyzing the facts, the ITC has issued the right decision to protect American jobs across the country. The printing industry can now breathe a sigh of relief.

Newsprint used by U.S. newspapers and commercial printers consists of two-thirds of uncoated groundwood paper. The spike in the cost of paper promptedharmacross the industry—and forced many local newspapers to scale back reporting and reduce the number of editions they publish. The tariffs also repressed demand by small businesses that use printed advertising inserts and flyers to reach customers.

Today’s victory demonstrates the powerful results the printing industry can achieve when we flex our political might. In the face of the threat to 600,000 American jobs in the newspaper, retail, printing, and publishing industries, PIA joined forces with a broad and diverse coalition to pursue all available avenues to advocate that public officials help put an end to the tariffs. Results included a petition signed by more than 11,000Americans from all 50 states. More than 150 members of Congress expressed opposition to the tariffs with letters to key Administration officials, testimony delivered before the ITC, or co-sponsorship of legislation in theHouseandSenate. In addition, both theTeamstersand theCommunication Workers of Americawrote letters opposing the tariffs.

Supreme Court Ruling

Printing Industries of America (PIA) recently released a statement about the Supreme Court ruling in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. In the statement below, PIA provides an explanation of how it could impact printers regarding their right to refuse service to a customer.


On Monday, the United States Supreme Court decided that a Colorado baker had the right to refuse service to customers based on his sincerely held religious beliefs. The Court very specifically based its decision on the fact that the Colorado Civil Rights Commission did not fairly and impartially enforce Colorado's anti-discrimination law that bars discrimination against sexual orientation and religion.

Because the Court's decision is quite narrow, it does not provide carte blanche permission to refuse service in the name of religious freedom pursuant to the First Amendment. The Court limited the breadth of its decision to occasions when there is a demonstrated failure to remain neutral when weighing civil rights against the free exercise of religion. Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, Slip Opinion No. 16-111 (U.S.S.C. June 4, 2018).

For printers, the question about whether a company can refuse a customer's business arises most commonly in the context of doing work for controversial customers or on controversial subjects. The first step is to consider whether the customer is in a class protected by the Civil Rights Act, the Americans with Disabilities Act, or the Age Discrimination in Employment Act. These statutes prohibit discrimination based on race, religion, gender, sexual orientation, national origin, age, and mental or physical disability, and customers who are refused service based on these characteristics could sue and may win a judgment against the printer.

If the customer is not in a protected class, then the printer may refuse service. For example, if the customer wanted the printer to create packaging for a product that had been tested on animals, and the printing company does not want the job due to that practice, the printer can refuse service because companies that use animal testing do not fall within a protected class.

For questions on this issue, contact Printing Industries of America's Director of Human Relations, Adriane Harrison, for assistance at 412-259-1707 or This email address is being protected from spambots. You need JavaScript enabled to view it..

Source: Printing Industries of America. 

iLearning Center

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PGAMA Excellence in Print 2018

Congratulations to all the 2018 EIP Winners!

2018 EIP Winners

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HIGHEST HONORS

Grand Q sponsored by Xerox
Schmitz Press

Digital Q sponsored by Canon
Printing Specialist Corporation

Binding & Finishing Q sponsored by Standard Graphics
Worth Higgins & Associates Inc.


SPECIAL AWARDS
Best Performance sponsored by Heidelberg:   
Schmitz Press

Best Use of Color sponsored by Braden Sutphin Ink:   
McClung Companies

Best Use of Paper sponsored by Lindenmeyr-Munroe:   
Worth Higgins & Assoc. Inc.

Judges’ Choice sponsored by Prisco:   
Printing Specialist Corporation & Schmitz Press

People’s Choice sponsored by K&W finishing, inc.: 
Chromagraphics 

Best Use of Photography sponsored by Solnet Network & Web:   
Graphtec

Best Use of Design sponsored by K&W finishing, inc: 
MOSAIC

Designers Choice sponsored by Atlantic Graphic Systems:   
Graphtec

Spirit of Excellence sponsored by MCS:   
Strategic Factory

Best 4 Color Reproduction sponsored by CardConnect:   
Printing Specialist Corporation


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Paid Sick Leave FAQs

Do you have questions about the Maryland Healthy Working Families Act?  These recently published FAQs should help answer some of them. 

 

Paid Sick Leave FAQ

 

Sick Leave Act

REQUIRES EMPLOYERS IN MARYLAND TO PROVIDE PAID OR UNPAID LEAVE TO EMPLOYEES FOR THEIR OWN OR FAMILY MEMBERS’ ILLNESSES OR MEDICAL APPOINTMENTS, FOR MATERNITY OR PATERNITY LEAVE, AND FOR ABSENCES ASSOCIATED WITH DOMESTIC VIOLENCE OR SEXUAL ABUSE.

EMPLOYERS REQUIRED TO COMPLY WITH THE ACT

Pursuant to The Maryland Healthy Working Families Act, most employers in the State of Maryland must provide sick and safe leave to each employee, including employees of restaurants, bars, temporary, staffing firms and part time employees. The Montgomery County Earned Sick and Safe Leave Law (Chapter 27 Human Rights and Civil Liberties §27 -7 & 27.8) is NOT PREEMTED by this Act.

ACCRUAL START DATE

Leave accrues at the beginning of employment, provided that the accrual need not commence prior to the effective date of this Act. (02/11/2018)

ACCESSING LEAVE

An employee must be allowed to use leave no later than after 106 calendar days of employment with the employer.

An employer may require notice of not more than 7 days in advance if the employee’s need to use leave is foreseeable. If the need to use leave is NOT foreseeable, then the employee must provide notice to the employer as soon as practicable and comply with the employer’s procedural requirements for requesting and reporting leave, provided that those requirements do not interfere with the employee’s ability to use accrued leave. An employer may not require that an employee who is requesting leave search for or find an individual to work in the employee’s stead during the time the employee is taking the leave. An employee may take leave in the smallest amount allowable by the employer. The employer may not require an employee to take leave in an increment greater than 4 hours

An employer may deny a request to use leave if the employee fails to provide notice as stated above, the employee’s absence will cause a disruption to the employer, or the employer is a private employer licensed to provide services to developmentally disabled or mentally ill individuals under Title 7 or Title 10 of the Health – General Article of the Maryland Code.

ENFORCEMENT

An employer must keep records of earned sick leave use and accrual for each employee for at least 3 years. The Commissioner may inquire with employers’ records to determine compliance with this Act.

An employee may, in good faith, bring a complaint within 3 years of a suspected violation of this act. Employee complaints against the employer will be investigated by the Commissioner within 90 days of the complaint. The Commissioner will attempt to resolve the issue through mediation, If the complaint is not resolved and the Commissioner find the employer to have violated this Act, then the Commissioner will issue an order to the employer to pay the employ full monetary value of the unpaid sick leave, at the Commissioner’s discretion up to 3 times the monetary value of the unpaid sick leave, and any actual economic damages.

An employer’s failure to comply to the order allows the employee and Commissioner to pursue further civil action and the Court to award more damages to the employee, including punitive damages.

NUMBER OF HOURS ACCRUED

Type of leave and accrual of leave is determined by the type of business, the number of employees an employer has, and the number of hours an employee works. An employer may use an existing leave policy if the employer offers a paid time off policy that meets or exceeds the accrual and usage requirements of this Act. An employer may award the full amount of sick and safe leave an employee would earn at the beginning of each year rather than awarding leave as it accrues. Employers are not required to pay out accrued leave upon the employee’s dismissal from employment. See the following chart for a breakdown of exemptions and leave accrual for certain employees.

Exempted Employees

  • An employee that works less than 12 hours a week.
  • An employee in the construction industry and is covered by a collective bargaining agreement.
  • An employee that is called to work by the employer on an as needed basis in a health or human services industry and can reject or accept the shift offered by the employer, is not guaranteed to be called by the employer, and is not employed by a temporary staffing agency.
  • An employee of a unit of State or Local government if the unit’s accrual and use requirements meet or exceed this Act.
  • An employee in the Agriculture Sector on an agricultural operation under §5 – 403 (A) of the Courts article of Maryland Code
  • An employee employed by a temporary services agency to provide temporary staffing services to another person and the temporary services agency does not have day to day control over the work assignments and supervision of the employee while the employee is providing temporary staffing services.
  • An employee directly employed by an employment agency to provide part – time or temporary services to another person.

If an Employer has:

15 or more employees, then the employer must provide PAID sick leave.

14 or fewer employees, then the employer must at least provide UNPAID sick leave.

Accrual Rate

1 hour per 30 hours worked

An Employer may

NOT BE REQUIRED

to allow an Employee to:

  • Earn more than 40 hours of sick leave in a year
  • Use more than 64 hours of sick leave in a year
  • Use leave for more than two consecutive shifts without verification leave was used properly.
  • Carry over more than 40 hours of sick leave to a consecutive year
  • Accrue a total of more than 64 hours of sick leave at any time
  • Accrue sick leave during:
  1. A “2 week pay period” in which the employee worked less than 24 hours total.
  2. A “1 week pay period” if the employee worked fewer than a combined 24 hours in the current and immediately preceding pay period.
  3. A pay period in which the employee worked fewer than 26 hours in the pay period and the employee is paid twice a month regardless of the number of weeks in the pay period.

ADDENDUM – SEASONAL EMPLOYEES & REHIRED EMPLOYEES

If an employee is rehired within 37 weeks after leaving the employment of the employer, then the employer MUST reinstate any unused accrued leave to the employee that the employee had prior to dismissal from employment. If the employer opts to pay out the monetary value of the employee’s unused earned leave, then the employer is NOT required to reinstate the unused leave.

If an employee uses leave during the period between the first 107 and 120 (both inclusive) calendar days of employment, then the employer may require verification that the leave was used properly, provided that the employee agreed to provide verification under terms mutually agreed to by the employee and employer at the time of hire.

OSHA Injury Reporting Due December 1, 2017

 

In May 2016, OSHA published its new recordkeeping rule, officially named “Improve Tracking of Workplace Injuries and Illnesses.” The rule dictates that employers with more than 20 full-time employees, including printing operations, must submit their work-related injury and illness records from their completed 2016 OSHA Form 300A to a new OSHA website. OSHA has stated that once the data is collected they will publish the data on its web page.

The submission deadline originally was set for July 1, 2017, but was delayed to December 1, 2017. Although OSHA has stated that they want to revise the rule prior to the December 1, 2017, deadline, at the time of this email they have not issued and changes. Therefore, printing operations with more than 20 full-time employees should plan on meeting the December 1, 2017, deadline.

In order to accept the data, OSHA created the Injury Tracking Application (ITA). The Web-based form allows employers to electronically submit required injury and illness data from their completed 2016 OSHA Form 300A. The application will be accessible from the ITA webpage at https://www.osha.gov/injuryreporting/index.html.

The data submission process involves four steps:

  1. Creating an establishment
  2. Adding 300A summary data
  3. Submitting data to OSHA
  4. Reviewing the confirmation email.

The secure website offers three options for data submission. One option will enable users to manually enter data into a web form. Another option will give users the ability to upload a CSV file to process single or multiple establishments at the same time. A third option will allow users of automated recordkeeping systems to transmit data electronically via an application programming interface (API.)

In order to demonstrate that you have met the new reporting requirement, you should keep copies of all of the electronic correspondence from OSHA.

 If there is a further delay of the reporting deadline or a change in the regulation, we will let you know.

If you have any questions, please let us know. Due to the Thanksgiving holiday, please send an email to This email address is being protected from spambots. You need JavaScript enabled to view it.

PIA Applauds House Passing of HR 1

Monday, November 20, 2017

Pittsburgh, Pennsylvania – Printing Industries of America applauds the United States House of Representatives on its passage of HR 1 “Tax Cuts and Jobs Act” yesterday November 16, 2017. The bill, which passed 227-205, is a comprehensive tax reform set to benefit the nation's economy. 

“Printing Industries of America was pleased that lawmakers recognized the importance of advertising by preserving the more than 100-year-old deduction for companies to promote their products and services,” said Michael Makin, President and CEO of Printing Industries of America. “We now turn to engaging with the US Senate to represent printers of all sizes as that chamber moves forward on its version of tax reform.”

Printing Industries of America member companies, their employees, and industry stakeholders would benefit in particular from HR 1 in the form of:

  • Lowering of the corporate rate to 20 percent, and, most importantly, lowering of S-Corp or “pass through” tax rate to 25 percent. The vast majority of Printing Industries of America members would be filing at this new, proposed 25 percent rate
  • Immediate and full expensing of capital equipment
  • Doubling of the estate or “death” tax exemption to $10 million with eventual full repeal in six years. This new exemption rate would remove the current estate tax planning burden and succession challenges for 99 percent of the hundreds of family-owned printing companies
  • Protecting the ability of small businesses to write off interests on business loans
  • Elimination of the Alternative Minimum Tax (AMT)
PIA will continue to monitor the progress of tax reform and inform its members as developments are announced.

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Scam Alert

Be on Alert

Email scam:  Your finance director receives an email from you, the owner, telling them to pay a large invoice, presumably for an equipment purchase. The email has your email address and signature exactly.  It looks like any other email you'd send.  The email asks the finance director to pay the invoice immediately because it's holding up the process.  

This happened yesterday to a PGAMA member. The invoice was for $42,800.  

Fortunately, the member caught the scam in time.  Please put a system in place to guard against this scam. This is the second incident amongst our membership.  Questions?  Contact This email address is being protected from spambots. You need JavaScript enabled to view it. 410-319-0900

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