Maryland General Assembly outlines new employee rights
The Maryland General Assembly concluded its 2012 session in the spring, passing several laws affecting the workplace. Among the noteworthy measures that will take effect October 1 are the following:
Internet and Electronic Account Privacy Protection. 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 new 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 employers internal computer or information systems. The law does not define what is a nonpersonal account nor make any exception to allow employers to demand access to personal accounts that are used to access work accounts.
Jury Service. A new law in this realm 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 employer from allowing an employee to work if he or she so chooses. It only prohibits the employer from requiring the employee to work.
Privileged Communications or Information Involving Labor Organizations. 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. It 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 likely 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 persons property or financial interests that has or will result from the employees criminal act;
Secure legal advice about the compliance of the union or its agent with a court order or the CBA;
Establish a claim/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 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 employees 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.
Related to this new law, dealers should know that the U.S. Court of Appeals for the Second Circuit recently upheld a companys restriction that limited employees to wearing only one pro-union button holding that special circumstances justify restrictions on union insignia or apparel when their display may . . . unreasonably interfere with a public image that the employer has established. The one pro-union button was a necessary and appropriate means of protecting its legitimate managerial interest in displaying a particular public image through the messages contained on employee buttons, the court said.
WANADA is grateful to Shaw Rosenthal, LLP for this employee rights update.
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