Maryland 2022 Regular Session

Maryland Senate Bill SB224 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1
2	2
3	3	EXPLANATION: CAPITALS INDICATE MAT TER ADDED TO EXISTIN G LAW.
4	4	[Brackets] indicate matter deleted from existing law.
5	5	sb0224
6	6
7	7	SENATE BILL 224
8	8	K3 2lr1309
9	9	CF 2lr1526
10	10	By: The President (By Request – Office of the Attorney General)
11	11	Introduced and read first time: January 12, 2022
12	12	Assigned to: Finance
13	13
14	14	A BILL ENTITLED
15	15
16	16	AN ACT concerning 1
17	17
18	18	Labor and Employment – Employment Standards and Conditions – Definition of 2
19	19	Employer 3
20	20
21	21	FOR the purpose of adding a general definition of “employer” for purposes of certain 4
22	22	provisions of law relating to employment standards and conditions; and generally 5
23	23	relating to employment standards and conditions. 6
24	24
25	25	BY repealing and reenacting, with amendments, 7
26	26	Article – Labor and Employment 8
27	27	Section 3–101, 3–301, 3–401, 3–501, 3–702(a), 3–801(a), 3–802(a), and 3–901 9
28	28	Annotated Code of Maryland 10
29	29	(2016 Replacement Volume and 2021 Supplement) 11
30	30
31	31	Preamble 12
32	32
33	33	WHEREAS, The Maryland Wage Payment and Collection Law (MWPCL) is a 13
34	34	“statutory cause of action, the purpose of which is to provide a vehicle for employees to 14
35	35	collect, and an incentive for employers to pay, back wages,” Cunningham v. Feinberg, 441 15
36	36	Md. 310, 322–23 (Md. 2015); and 16
37	37
38	38	WHEREAS, A series of federal district court decisions have narrowed the definition 17
39	39	of “employer” under MWPCL to exclude joint employers, frustrating the intended purpose 18
40	40	of the law to “provide a meaningful remedy to the harm flowing from the refusal of 19
41	41	employers to pay wages lawfully due,” Marshal v. Safeway, Inc. 437 Md. 542, 559 (Md. 20
42	42	2014); and 21
43	43
44	44	WHEREAS, Enacting a general definition of “employer” reflects the legislature’s 22
45	45	intent for MWPCL to function as a complement to the Maryland Wage and Hour Law; now, 23
46	46	therefore, 24
47	47
48	48	SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 25 2 SENATE BILL 224
49	49
50	50
51	51	That the Laws of Maryland read as follows: 1
52	52
53	53	Article – Labor and Employment 2
54	54
55	55	3–101. 3
56	56
57	57	(a) In this title the following words have the meanings indicated. 4
58	58
59	59	(b) “Commissioner” means the Commissioner of Labor and Industry. 5
60	60
61	61	(c) (1) “Employ” means to engage an individual to work. 6
62	62
63	63	(2) “Employ” includes: 7
64	64
65	65	(i) allowing an individual to work; and 8
66	66
67	67	(ii) instructing an individual to be present at a work site. 9
68	68
69	69	(D) (1) “EMPLOYER” MEANS A PERSON ENGAG ED IN A BUSINESS , AN 10
70	70	INDUSTRY, A PROFESSION, A TRADE, OR ANY OTHER ENTERPRISE IN THE STATE 11
71	71	THAT EMPLOYS AN INDIVIDUA L IN THE STATE. 12
72	72
73	73	(2) “EMPLOYER” INCLUDES A PERSON THAT ACTS DIRECTLY OR 13
74	74	INDIRECTLY IN THE IN TEREST OF ANOTHER EM PLOYER WITH AN EMPLO YEE. 14
75	75
76	76	3–301. 15
77	77
78	78	(a) In this subtitle the following words have the meanings indicated. 16
79	79
80	80	(b) [(1)] “Employer” [means:] INCLUDES: 17
81	81
82	82	[(i) a person engaged in a business, industry, profession, trade, or 18
83	83	other enterprise in the State; 19
84	84
85	85	(ii)] (1) the State and its units; 20
86	86
87	87	[(iii)] (2) a county and its units; and 21
88	88
89	89	[(iv)] (3) a municipal government in the State. 22
90	90
91	91	[(2) “Employer” includes a person who acts directly or indirectly in the 23
92	92	interest of another employer with an employee.] 24
93	93
94	94	(c) “Gender identity” has the meaning stated in § 20–101 of the State Government 25
95	95	Article. 26
96	96	SENATE BILL 224 3
97	97
98	98
99	99	(d) (1) “Wage” means all compensation for employment. 1
100	100
101	101	(2) “Wage” includes board, lodging, or other advantage provided to an 2
102	102	employee for the convenience of the employer. 3
103	103
104	104	3–401. 4
105	105
106	106	(a) In this subtitle the following words have the meanings indicated. 5
107	107
108	108	(b) [“Employer” includes a person who acts directly or indirectly in the interest of 6
109	109	another employer with an employee. 7
110	110
111	111	(c)] “Federal Act” means the federal Fair Labor Standards Act of 1938. 8
112	112
113	113	[(d)] (C) “Wage” means all compensation that is due to an employee for 9
114	114	employment. 10
115	115
116	116	3–501. 11
117	117
118	118	(a) In this subtitle the following words have the meanings indicated. 12
119	119
120	120	(b) “Employer” includes [any person who employs an individual in the State or] 13
121	121	a successor of the person THAT EMPLOYS AN INDIVIDUA L IN THE STATE. 14
122	122
123	123	(c) (1) “Wage” means all compensation that is due to an employee for 15
124	124	employment. 16
125	125
126	126	(2) “Wage” includes: 17
127	127
128	128	(i) a bonus; 18
129	129
130	130	(ii) a commission; 19
131	131
132	132	(iii) a fringe benefit; 20
133	133
134	134	(iv) overtime wages; or 21
135	135
136	136	(v) any other remuneration promised for service. 22
137	137
138	138	3–702. 23
139	139
140	140	(a) In this section, “employer” [means:] INCLUDES: 24
141	141
142	142	(1) [a person engaged in a business, industry, profession, trade, or other 25
143	143	enterprise in the State; 26
144	144	4 SENATE BILL 224
145	145
146	146
147	147	(2)] the State; 1
148	148
149	149	[(3)] (2) a county; and 2
150	150
151	151	[(4)] (3) a municipal corporation in the State. 3
152	152
153	153	3–801. 4
154	154
155	155	(a) [(1)] In this section, “employer” [means a person engaged in a business, 5
156	156	industry, profession, trade, or other enterprise in the State. 6
157	157
158	158	(2) “Employer”] includes[:] 7
159	159
160	160	[(i)] a unit of State or local government that employs individuals who 8
161	161	are not subject to the provisions of Title 9, Subtitle 5 of the State Personnel and Pensions 9
162	162	Article[; and 10
163	163
164	164	(ii) a person who acts directly or indirectly in the interest of another 11
165	165	employer with an employee]. 12
166	166
167	167	3–802. 13
168	168
169	169	(a) (1) In this section the following words have the meanings indicated. 14
170	170
171	171	(2) “Bereavement leave” means leave an employee is allowed to use on the 15
172	172	death of a member of the employee’s immediate family. 16
173	173
174	174	(3) “Child” means: 17
175	175
176	176	(i) for the purposes of leave provided under subsection (d)(1)(i) of 18
177	177	this section, an adopted, biological, or foster child, a stepchild, or a legal ward who is: 19
178	178
179	179	1. under the age of 18 years; or 20
180	180
181	181	2. at least 18 years old and incapable of self–care due to a 21
182	182	mental or physical disability; or 22
183	183
184	184	(ii) for the purposes of bereavement leave under subsection (d)(1)(ii) 23
185	185	of this section, an adopted, biological, or foster child, a stepchild, or a legal ward. 24
186	186
187	187	(4) [(i) “Employer” means a person that is engaged in a business, 25
188	188	industry, profession, trade, or other enterprise in the State. 26
189	189
190	190	(ii) “Employer” includes a person who acts directly or indirectly in 27
191	191	the interest of another employer with an employee. 28
192	192	SENATE BILL 224 5
193	193
194	194
195	195	(5)] “Immediate family” means a child, spouse, or parent. 1
196	196
197	197	[(6)] (5) (i) “Leave with pay” means paid time away from work that is 2
198	198	earned and available to an employee: 3
199	199
200	200	1. based on hours worked; or 4
201	201
202	202	2. as an annual grant of a fixed number of hours or days of 5
203	203	leave for performance of service. 6
204	204
205	205	(ii) “Leave with pay” includes sick leave, vacation time, paid time off, 7
206	206	and compensatory time. 8
207	207
208	208	(iii) “Leave with pay” does not include: 9
209	209
210	210	1. a benefit provided under an employee welfare benefit plan 10
211	211	subject to the federal Employee Retirement Income Security Act of 1974; 11
212	212
213	213	2. an insurance benefit, including benefits from an 12
214	214	employer’s self–insured plan; 13
215	215
216	216	3. workers’ compensation; 14
217	217
218	218	4. unemployment compensation; 15
219	219
220	220	5. a disability benefit; or 16
221	221
222	222	6. a similar benefit. 17
223	223
224	224	[(7)] (6) “Parent” means an adoptive, biological, or foster parent, a 18
225	225	stepparent, a legal guardian, or a person standing in loco parentis. 19
226	226
227	227	3–901. 20
228	228
229	229	(a) In this subtitle the following words have the meanings indicated. 21
230	230
231	231	(b) “Construction services” includes the following services provided in connection 22
232	232	with real property: 23
233	233
234	234	(1) building; 24
235	235
236	236	(2) reconstructing; 25
237	237
238	238	(3) improving; 26
239	239
240	240	(4) enlarging; 27
241	241	6 SENATE BILL 224
242	242
243	243
244	244	(5) painting; 1
245	245
246	246	(6) altering; 2
247	247
248	248	(7) maintaining; and 3
249	249
250	250	(8) repairing. 4
251	251
252	252	[(c) “Employer” means any person that employs an individual in the State.] 5
253	253
254	254	[(d)] (C) “Exempt person” means an individual who: 6
255	255
256	256	(1) performs services in a personal capacity and employs no individuals 7
257	257	other than: 8
258	258
259	259	(i) a spouse of the exempt person; 9
260	260
261	261	(ii) children of the exempt person; or 10
262	262
263	263	(iii) parents of the exempt person; 11
264	264
265	265	(2) performs services free from direction and control over the means and 12
266	266	manner of providing the services, subject only to the right of the person or entity for whom 13
267	267	services are provided to specify the desired result; 14
268	268
269	269	(3) furnishes the tools and equipment necessary to provide the service; 15
270	270
271	271	(4) operates a business that is considered inseparable from the individual 16
272	272	for purposes of taxes, profits, and liabilities: 17
273	273
274	274	(i) in which the individual: 18
275	275
276	276	1. owns all of the assets and profits of the business; and 19
277	277
278	278	2. has sole, unlimited, personal liability for all of the debts 20
279	279	and liabilities of the business, unless the business is organized as a 21
280	280	single–owned corporate entity, to which sole, unlimited personal liability does not apply; 22
281	281	and 23
282	282
283	283	(ii) for which: 24
284	284
285	285	1. the individual does not pay taxes for the business 25
286	286	separately but reports business income and losses on the individual’s personal tax return; 26
287	287	and 27
288	288
289	289	2. if the business is organized as a corporate entity and the 28
290	290	individual otherwise qualifies as an exempt person under this subsection, the individual 29 SENATE BILL 224 7
291	291
292	292
293	293	files a separate federal informational tax return for the entity as required by law; 1
294	294
295	295	(5) exercises complete control over the management and operations of the 2
296	296	business; and 3
297	297
298	298	(6) exercises the right and opportunity on a continuing basis to perform the 4
299	299	services of the business for multiple entities at the individual’s sole choice and discretion. 5
300	300
301	301	[(e)] (D) “Knowingly” means having actual knowledge, deliberate ignorance, or 6
302	302	reckless disregard for the truth. 7
303	303
304	304	[(f)] (E) “Landscaping services” includes the following services: 8
305	305
306	306	(1) garden maintenance and planting; 9
307	307
308	308	(2) lawn care including fertilizing, mowing, mulching, seeding, and 10
309	309	spraying; 11
310	310
311	311	(3) seeding and mowing of highway strips; 12
312	312
313	313	(4) sod laying; 13
314	314
315	315	(5) turf installation, except artificial; 14
316	316
317	317	(6) ornamental bush planting, pruning, bracing, spraying, and removal; 15
318	318	and 16
319	319
320	320	(7) ornamental tree planting, pruning, bracing, spraying, and removal. 17
321	321
322	322	[(g)] (F) (1) “Place of business” means the office or headquarters of the 18
323	323	employer. 19
324	324
325	325	(2) “Place of business” does not include a work site at which the employer 20
326	326	has been contracted to perform services. 21
327	327
328	328	[(h)] (G) “Public body” means: 22
329	329
330	330	(1) the State; 23
331	331
332	332	(2) a unit of State government or an instrumentality of the State; or 24
333	333
334	334	(3) any political subdivision, agency, person, or entity that is a party to a 25
335	335	contract for which 50% or more of the money used is State money. 26
336	336
337	337	SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 27
338	338	October 1, 2022. 28