Will Paid Sick Leave's business-killing mandates stand?

News from Annapolis

2018 Session: Week 2 Delegate Trent Kittleman - District 9A

CONTENTS

Governor calls on another Howard Countian
My bill
OF NOTE: BGE to return tax savings to customers
IN-DEPTH: The Future of Sick Leave
All for fun - name our State Mammal(s)

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Governor calls on another Howard Countian

Randall Nixon Appointed to new Office of Small Business Regulatory Assistance.

Following the veto-override of the paid sick leave legislation (see article below), legislators from both party expressed concerns about potential negative impacts on Maryland's small businesses and indicated a willingness to work toward solutions.

As that important conversation takes place at the policy-making level, the Governor, by Executive Order, created the Office of Small Business Regulatory Assistance to assist Maryland's small business job creators in complying with House Bill 1. The Governor has named our friend and neighbor Randall (f/k/a Randy) Nixon as its Executive Director. Randy has been serving as the Governor's small business Ombudsman since early last year. During that time he has already reached out to over 1,000 individuals, representing employers and employees across the state.

Business owners or workers seeking assistance should contact Small.Business@Maryland.gov or contact Randy directly at Randall.Nixon@Maryland.gov.

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My Bill

Criminal Law - Homicide -- Unborn Child

My approach to my job as your representative in Annapolis is to try to prevent bills from passing in this highly-regulated State, and not to contribute to the 44 volumes of laws that already exist.

Nevertheless, sometimes there are voids in the law that only new legislation can remedy. This Session, I am proud to be sponsoring the House cross-file to Senator Justin Ready's bill titled: "Criminal Law - Homicide - Unborn Child.

Currently, if a pregnant woman is attacked and the child within her is killed as a result, the perpetrator will either: (1) be charged with manslaughter/murder (if the fetus is viable), or (2) be charged with no crime at all with respect to the fetus if it is less than 24 weeks old. There is something inherently wrong with this outcome, regardless of your position on abortion.

This bill makes it murder or manslaughter when a person (i) intends to cause the death of the fetus, (ii) intends to cause serious physical injury to the fetus, or (iii) recklessly disregards the likelihood that the person's action would cause serious injury or death to the fetus.

The bill also clarifies that nothing in the section applies to a woman's right to act, fail to act, or choose to terminate her pregnancy, not does it apply to a licensed medical professional if a fetal death occurs in the course of administering lawful medical care.

The bill specifically states that "Nothing in this section shall be construed to confer personhood or any rights on the unborn child."

Thirty-eight states have fetal homicide laws and at least 23 of these states have fetal homicide laws that apply to the earliest stages of pregnancy.

This bill is not an attempt to get the camel's nose under the tent; it is not the beginning of a slippery slope toward prohibiting abortions. It is a get tough on crime bill that believes anyone who attacks a pregnant woman should be held liable for destroying the most important 'person' in the life of the mother.

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Of Note

BALTIMORE GAS & ELECTRIC plans to pass on its tax savings to customers.

BGE announced pending rate cuts saying the average customer can expect their bill to decrease beginning in February.

That an $ 82 million dollar benefit courtesy of the Republican Tax Reform bill .

--from an article by Sarah Gantz, in The Baltimore Sun | January 5, 2018

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An In-Depth Look at:

The Future of Paid Sick Leave

The politics

Maryland is often called "America in Miniature."

Annapolis is working on becoming "Washington DC in Miniature," because of its increasingly frequent and needless partisanship and posturing.

This bill, titled the "Healthy working Families Act" ( a/k/a the 'paid sick leave' bill ), is a model of how NOT to pass legislation.

Rather than choosing to work in a bipartisan manner and compromise with the administration, the majority party -- without a single minority party vote -- passed House Bill 1, a complicated, unworkable, and deeply flawed paid sick leave bill.

In an effort to get to a compromise last year, Governor Hogan offered a bill that provided virtually the same benefits to workers, without imposing draconian mandated procedures and penalties on business.

As expected, the Governor vetoed HB-1 at the end of last year's session.

Equally as expected, the majority party over-road his veto first thing this Session.

Although HB-1 is now law, the implementation of the bill is not yet finalized. While efforts to understand how to comply with the law goes forward, the Governor continues to talk with the legislative leaders on a compromise. Toward that end, Governor Hogan has sponsored HB-382, the "Commonsense Paid Leave Act." The good news is, there still may be room for compromise and time to modify some of the worst provisions of the law before it goes into effect

What's Wrong with the bill?

Mandates, Procedures & Penalties

Some of the most onerous provisions of the bill stem from what appears to be the belief of the majority party that businesses are inherently bad and governments are inherently good.

This belief leads them to the obvious conclusion that it is up to us in the legislature to pass laws that must not only give workers benefits but must include punitive damage provisions to hammer businesses into compliance.

HB-1 contains numerous "hammers," both procedural and substantive. The provisions are so complicated that even the smallest mom-and-pop shops would need a full-time professional to be able to comply with the bill. Employers are already required to comply with at least five other sick an safe leave laws as well as myriad other state, federal and local business regulations, all of which create an increasing cost of doing business in Maryland.

The penalty provision is substantive. If a business is out of compliance, this piece of legislation expands a court's ability to award penalties and damages far beyond what is currently authorized under wage and hour laws.

A businessman in Baltimore county testified that "I don't know how to track this, and if I'm wrong by and hour, I lose an hour researching it plus treble damages."

Seasonal and part-time workers.

By far and away the biggest concern among businesses across the state and in every industry sector, is tracking accrual and providing paid leave benefits to the 12-20 hour a week part-time employees.

This provision will likely have the greatest unintended consequence on the labor market.

The Maryland tourism and hospitality industries "reported the highest number of concerns from both employers and employees." Keeping the records to determine when and if an employee becomes eligible for the benefit creates issues.

Moreover, because an employer has a "cushion of 106 days before the employee is eligible to receive paid sick leave benefits" both employers and employees may have to use this 106-day window to decide store policy rather than focusing on the needs and preferences of the customer. Ocean City, in particular, will be negatively impacted by the law's affect on seasonal employees.

Inclusions & Exemptions

One of the many inequities in the bill is the selection of entities who are included or excluded. Included employers include non-profits (such as the ARC of Howard County, early childhood education entities, Girl Scouts, Chambers of Commerce), government agencies ( schools and university systems; fire and police departments), professional associations (o f lawyers, of doctors and hospitals), unions (with one exception). The entities in parentheses are just a few examples; all business organizations are included, unless they are specifically excluded.

Excluded employees are :

Those who are employed by temp company
Those who are employed by an employment agency
Independent contractors
Union construction workers covered by a collective bargaining agreement If the Collective Bargaining Agreement expressly waives HB-1 requirements
Those who are employed in the Agriculture industry
Real estate agents and brokers
Certain health or human service workers who work on an as-needed basis as they so choose

In addition, employers with fewer than 15 employees must follow all the of the tracking and time-keeping provisions of the act and must offer their employees the opportunity to take leave. However, these smaller employers, do not have to provide PAID leave.

The fact that the only union selected for an exemption is the construction t rade is confusing. Unions in the construction trade do not negotiate for or provide paid sick leave as a negotiated benefit. Why did the bill choose to "benefit" only the non-union workers?

Republican Women Legislators attack anti-privacy provisions of the bill.

Prior to the veto-override vote, 12 Republican women fought hard against HB-1, specifically attacking the provision that allows an employer to ask employees to "provide verification that the leave was used appropriately." While providing a doctor's note to one's employer after an illness may seem reasonable, it is anything but for those who use leave because of a domestic violence or sexual assault.

"Quite simply, no woman should have to disclose to their employer that they are taking leave because of domestic violence or sexual assault. Such a requirement further victimizes these women by giving them no choice but to disclose deeply persona and private information. It just goes too far," the letter states.

The Good News

Although virtually the same paid sick leave bill was offered year after year, the need for the bill was based primarily on anecdotal evidence. One of the reasons HB-1 met with so much opposition from the business community is that it was crafted virtually without data to support either the specifics of the problem nor the validity of the solutions.

So when Governor Hogan vetoed HB-1 last year, he simultaneously created a "Committee on Paid Leave Policy," and tasked the committee with "conducting a comprehensive field study and a thorough review of the paid leave issue in its entirety to evaluate the positive and negative impacts of implementing the bill."

The Final Report of that committee was delivered on November 28, 2017.

A Worthwhile Committee Endeavor

" Committees" empaneled by government are often not worth the time or the money they expend. This committee was worth every minute of staff time and every dollar it spent over its six-month lifespan.

The Report is not only choke full of meaningful data, but it is put together in a very readable format. Most importantly, the information elicited by the Committee is invaluable. To add context, Key Findings and Recommendations pepper the pages.

Indeed, the continuous feedback from the small business community along with the findings in this report have created a willingness in legislators in both parties to work together to find ways to modify the bill and provide some relief for small businesses.

I highly commend the Department of Labor Licensing and Regulation (DLLR) for its work on this Report, and encourage anyone who is interested in or affected by the Paid Sick Leave bill to read or review it. In addition to an Executive Summary and 49 pages of actual "report," there are appendices will worth having -- in particular, Appendix 3 which shows in chart form the differences between HB-1 and the Governor's Compromise bill (HB 382).

The book is not yet closed on the story of Paid Sick Leave, so stayed tuned.