Mid-Atlantic States Update: New Laws in Effect July-December 2018

Several key legal actions were taken in state legislatures during the first six months of 2018. Here’s a peek at the changes ahead for Virginia, Maryland, and North Carolina-from paid parental leave, to disclosure agreements, and hiring practices.

VIRGINIA

  • What: Recently Governor Ralph Northam signed an executive order providing 8 weeks of paid parental leave to state employees.
  • When: Effective immediately.
  • Trending?: Paid sick or family leave laws are becoming more popular. Surrounding jurisdictions, like DC and MD have paid sick/family leave laws that apply to private employers. This may be the next trend in VA!

MARYLAND

1. First, all MD employers are prohibited from including provisions in contracts that limit an employee’s substantive or procedural rights or remedies to future sexual harassment claims or retaliation claims based on reporting sexual harassment. Employers should update the employment agreements, severance agreements, and global releases to remove these provisions or to at least include some form of severability clause to ensure the entire agreement is not found unenforceable due to a void provision. Enforcing an invalid waiver may subject the employer to pay an employee’s reasonable attorney fees and costs.

2. Second, MD employers with 50 or more employees are required to disclose (to the Maryland Commission on Civil Rights) (i) the number of settlements regarding allegations of sexual harassment; (ii) the number of settlements made against the same employee over the past 10 years; and (iii) the number of settlements that included provisions requiring both parties to keep the terms of the settlement confidential. Any member of the public will be able to inspect specific employer filings to review the number of times the employer has paid a settlement to resolve a sexual harassment allegation against the same employee over the past 10 years. While the law allows for seemingly “narrowed” public review, there is no telling whether current FOIA exemptions would prevent all employer submissions from general disclosure.

  • When: Effective October 1, 2018
  • Trending?: MD’s disclosure law comes on the heels of the new 2017 Tax Cuts and Jobs Act that prevents an employer from using the business expense deduction for settlement payments related to sexual harassment claims that are subject to non-disclosure agreements. Both the federal tax law and MD’s law are likely outfalls from the #MeToo movement. We likely won’t see this kind of disclosure legislation in VA; though we could see some form of mandatory (sexual) harassment training soon.

NORTH CAROLINA

  • What: NC recently expanded its “certificate of relief” program and included a provision that gives employers a solid courtroom defense for negligent hiring and retention claims. NC’s certificate of relief program allows persons convicted of certain crimes that have met certain probation-like requirements to essentially obtain a certificate of good standing to overcome the collateral consequences (like bars to employment) of having a conviction. The best part for employers is if the employer hires an individual with a conviction but relies on the individual’s Certificate of Relief, the employer then has a complete bar or defense in any later court action alleging negligence in hiring or retention. NC employers should update their hiring policies and include specific requirements for documenting “reliance” on an individual’s Certificate of Relief.
  • When: Effective December 1, 2018
  • Trending?: NC’s employer-based relief for hiring persons convicted of crimes is a relatively novel idea we have yet to see play out in many states. Trending, though, is the idea that persons convicted of crimes should face less bars to employment. Both Washington, DC and MD have general ban-the-box legislation. VA is likely next to enact something middle-ground (for example – the state senate just approved a ban-the-box bill that applies to state employees)!

Woods Rogers’ Labor and Employment team of attorneys are here to assist you with any questions.

Article brought to you by:

Victor Cardwell
Principal and Chairman
Labor and Employment Practice Group

Leah M. Stiegler
Associate
Labor and Employment Practice Group