Publication : Brochures
Employees’ Rights in the
The Section of Labor Law and the Public Awareness
Committee of the Maryland State Bar Association have prepared this information.
It is intended to inform the public and not serve as legal advice.
The rights of employees working in Maryland are protected
by federal, state and local laws, as well as by common law through the actions
for breach of contract, and intentional and negligent unlawful acts. Most
of the federal, state, and local statutes are enforced primarily by specific
agencies. Common law claims must be entered through the state courts, which
enforce such claims.
Discrimination – Sexual Harassment
Many employees complain that their employer gives some
workers preferential treatment or does not treat all employees equally. The
law does not require that all employees be treated equally, not only that
they may not be treated differently because of their sex, race, religion,
national origin, physical or mental handicap or age. For example, when two
employees are equal in job performance, an employer can not give one a better
raise because of the employee’s sex or race. It is not only unlawful
to discriminate in hiring and firing decisions, but also in regard to promotions,
pay rates, job assignments, overtime, layoff and recall or any other term
or condition of employment. When facing a layoff, an employer may not select "older" employees
for layoff simply because they may be able to collect a pension.
The Americans with Disabilities Act (ADA) of 1990 prohibits
discriminating against individuals with physical or mental disabilities.
The Act requires employers in certain circumstances to make reasonable accommodations
for disabled individuals so these individuals may be able to perform the
essential functions of a job. For example, recovering alcoholics, former
users of illegal drugs, mental retardation, paraplegia, schizophrenia, cerebral
palsy, epilepsy, diabetes, muscular dystrophy, multiple sclerosis, cancer,
infection with HIV, visual, speech and hearing impairments may be covered
under the ADA.
The law also prohibits sexual harassment. Supervisors and
employees are strictly prohibited from sexually harassing other employees,
whether the harassment results in tangible job harm such as a firing or demotion
or other reprisal for refusing sexual advances, or intangible job harm stemming
from severe and pervasive harassment. Creating a hostile work environment
of a pervasive nature that is abusive to employees based on their gender
also constitutes sexual harassment. For example, allowing employees to intimidate
and harass other employees through lewd remarks, inappropriate touching or
offensive jokes. Employers are required to have a complaint procedure in
place and take prompt and reasonable efforts to remedy discrimination once
it is known.
The Equal Employment Opportunity Commission and the Maryland
Commission on Human Relations are the federal and state agencies designated
to enforce these laws. An employee who has been the subject of discrimination
may file a charge against his or her employer with these agencies with or
without a lawyer’s assistance. It is very important to remember that
a charge alleging discrimination generally must be filed with the appropriate
agency within 180 days from the date of discriminatory act in order to be
The Mental Health Parity Act (MPHA) of 1996 took effect
on January 1, 1998 and applies to employees enrolled in group or employer
insurance plans covering 50 or more employees; self-insured ERISA plans and
fully-insured plans; federal employees covered by the Federal Employee Health
Benefits Act; and collectively bargained plans. The MPHA requires that covered
health plans that provide mental health coverage provide the same lifetime
and annual maximum dollar limits for mental health benefits as they do for
conventional medical benefits.
Rights to Representation in the Workplace
The National Labor Relations Act guarantees employees the
right to self-organization, to bargain collectively through representatives
of their own choosing, to engage in concerted activities for their mutual
aid and protection, or to refrain from any of these activities. The National
Labor Relations Board, with a regional office located in downtown Baltimore,
is the federal agency assigned to investigate alleged violations of the law
and enforce the law by prosecuting offenders. Under this Act, employees who
are unrepresented have the right to join together to form a union or seek
to have an existing labor organization represent them without fear of retribution
by the employer. If a majority of employees select the labor organization
to represent them, the NLRB will certify the organization and require the
employer to bargain with this group regarding wages, hours and other terms
and conditions of employment. If an employee is fired from union activity,
the NLRB will seek to have the employee reinstated to his or her job with
full back pay.
The Act imposes certain requirements upon labor organizations
that represent workers. The union must represent all employees fairly and
diligently, and may not refuse to represent someone for discriminatory or
arbitrary reasons. The federal law also protects the right of un-represented
employees to engage in concerted activities for their mutual aid and protection.
All employees who complain to the boss about certain working conditions on
behalf of co-workers may not be discriminated against because the employee
is engaged in protected concerted activities. Employees who jointly refuse
to perform an unsafe and dangerous work assignment cannot be disciplined
for their joint refusal. The law, however, does not protect individual acts,
such as the individual employee complaining about only his or her pay rate.
It is only when employees join together in some way that the protections
of the law apply.
An employee who feels that his or her right under this
law has been violated may file a charge against the employer or union with
the NLRB, which will commence an investigation. All charges must be filed
within six months from the date of the alleged unlawful act or the charge
will be dismissed as untimely. Employees who wish to have a labor organization
represent them may file a petition seeking to have the NLRB conduct an election
Working Conditions and Wages
Both federal and state laws exist that protect workers
from unsafe working environments and entitle employees to minimum wages and
overtime wages. Health and safety regulations set forth standards that employers
must follow to protect workers from exposure to chemicals and other toxic
substances; unsafe noise levels; unsafe work practices; and unsafe heat,
cold or ventilation conditions. The regulations may require protective clothing
for certain types of work and may also require employers to provide certain
medical tests (e.g. hearing tests) at company expense. Complaints for violations
of these laws may be filed with Maryland Occupational Safety and Health (MOSH).
Federal law requires that employees in most industries
be paid a minimum wage and overtime (one and half times the employee’s
regular rate of pay) for hours worked over 40 per week. There are certain
exceptions to the overtime requirements for supervisory and professional
personnel, as well as for particular jobs such as salespeople who use telecommunications,
and other remote services technology, such as fax, modems, e-mail, and the
Internet, to perform their jobs; some computer professionals such as Systems
Analysts or Programmers; and some industries such as agricultural enterprises.
The law also sets forth minimum wages, which must be paid to construction
workers on public work projects and to employees performing government contract
service work (e.g. maintenance or janitorial work at a government building
or facility). The Wage and Hour Division of the United States Department
of Labor investigates and enforces violations of these federal laws. In addition,
the state Attorney General’s office enforces the state wage law and
can help collect unpaid wages to workers.
The Fair Credit Reporting Act requires that employers that
use any consumer credit information relating to the credit worthiness, credit
standing, credit capacity, character, general reputation, personal characteristics,
or mode of living of an applicant or employee as the basis, in whole or in
part, for employment decisions to (1) disclose to the applicant or employee
that a consumer credit report may be obtained and used in making employment
decisions; (2) obtain written permission from applicants and employees prior
to obtaining the consumer credit report; (3) provide the applicant or employee
with a copy of their consumer credit reports and a copy of a summary of rights
under the FCRA before taking any adverse action, such as termination; and
(4) provide the name, number and address of the credit reporting agency that
supplied the report.
Under the Workers’ Compensation laws, all employees
are entitled to compensation for lost wages, permanent injuries, and medical
costs for accidental injuries incurred during the course of employment. The
law also covers compensation for occupational diseases. Claims for compensation
for accidental injuries must be filed with the Workers’ Compensation
Commission within two years of the date of injury. Written notification of
an occupational disease must be given to the employer within one year from
the date that he employee has knowledge of the disease. It should be noted
that many employees think they have filed a claim only to find out that no
claim has been filed. Claims may only be filed on official forms supplied
by the Workers’ Compensation Commission.
In certain instances of job-related injuries, employees
may not only make a claim against the employer, but also against third parties.
Where a third party’s negligence has caused the job accident to occur,
such as a truck driver being hit by a non-employee, the negligent third party
may be liable for the victim’s injuries that are not covered by the
Health and Disability and Pension Rights
Under the Social Security laws, employees who become disabled,
whether on the job or off, may be entitled to disability benefits if they
are unable to engage in any occupation for a period of 12 months or more.
Application for these benefits may be made through the Social Security Administration.
Federal law requires that all employees covered by employer
pension plans must be vested within a maximum of five years or vesting must
take place in a staggered schedule between three and seven years. Depending
upon how the plan is set up, these vesting requirements may be shorter. Federal
law also provides for annual disclosure to employees of their benefits under
the pension plan.
The Family and Medical Leave Act of 1993, guarantees workers
unpaid time off from work for medical emergencies. Employers are required
to provide up to 12 weeks of unpaid leave during any twelve month period
- Birth and care of an infant
- Care of an adopted or foster care child
- Serious health condition of an employee
- Care of a spouse, child or parent with a serious health
The Family Medical Leave Act (FMLA) applies to federal,
state and local governments and to companies with more than 50 or more workers.
Employees are eligible for FMLA leave after they have worked at 1250 hours
for the employer during the previous 12-month period.
Rights to File Charges Without Retaliation
Described above are some of the numerous federal and state
laws enacted to protect workers. In most cases, these rights can only be
protected by filing charges with the appropriate government agency in a timely
manner. Each one of these laws also prohibits an employer’s retaliation
against an employee for filing a charge or complaint. Even if the employee
is unsuccessful in having a complaint or charge corrected, the employee can
not be disciplined or otherwise discriminated against for making the complaint.
The law further protects any co-workers who assist or act as witness for
the person filing the charge.
Contract Rights and Other Rights
Without an employment contract or union or other collectively
bargained contract, Maryland law generally considers workers to be employees
"at will." Without a contract, an employer may hire and fire employees
and determine all aspects of workers’ employment at his or her will as
along as the employer does not violate any other law. For example, an employer
may discharge a 20-year veteran employee for a good reason, bad reason, or
no reason at all, if it is not for a discriminatory or other unlawful reason.
Over the past several years, however, the courts have begun to make exceptions
to this "at will" doctrine.
Even without a specific signed employment contract, some
personnel manuals and other company policies, practices, and documents may
be interpreted as creating contractual rights. Oral promises to provide certain
benefits or wages in order to persuade someone to accept employment may also
be considered to create such rights. Whether a contract has been created
depends on the facts and circumstances of each case. Legal advice should
be sought if an employee thinks an agreement ahs been breached. If a specific
written contract exists, either an individual employment contract or a collective
bargaining agreement (union contract), or an employer may use the legal process
to enforce any portion of the agreement.
In Maryland, it is illegal to fire someone for reasons
that are in violation of clear public policy. This kind of firing is often
called abusive discharge. As an example, an employee who is discharged for
refusing to commit an illegal act may have an action for abusive discharge
against the employer.
Privacy Rights of Employees
Under Maryland law, job applicants and employees may not
be required to submit to a lie detector test either to obtain a job or keep
one. An employer may not require a job applicant to answer any questions
pertaining to physical, psychological or psychiatric illness, disability,
handicap or testament that does not directly affect the applicant’s
ability to perform the job.
Employers have a legitimate interest in monitoring employee
performance in the workplace, especially their productivity, safety and efficiency.
Recent advances in technology have resulted in employer using new methods
of employee monitoring, including electronic monitoring of e-mail, telephone
calls, and computer usage. The law does permit employers to conduct electronic
surveillance, such as telephone monitoring, when it is done to serve legitimate
business interest such as monitoring quality of customer service. The law
allows employers to intercept and listen to only business-related calls.
A personal call may not be monitored once it is determined to be one.
Employers are also permitted to monitor e-mail usage where
the employer owns and provides the computer equipment and it is intended
to be used for work purposes only. The law protects employees from an invasion
of privacy by their employers in regard to their possessions and private
lives, not their use of the employer’s property. The law prevents unreasonable
intrusion upon an employee’s privacy, public disclosure of embarrassing
private information; and publicly placing an employee’s reputation
in a false light.
With regard to job references, employers may not communicate
false information to prospective employers without possibly being subject
to a lawsuit for character defamation. Employers are also prohibited from
communicating certain other types of information about a former employee
without the express consent of the employee.
Without a contract covering employment, employers are generally
free to set terms and conditions of employment. Therefore, employers are
free to implement drug-screening programs for employees and job applicants.
Where a contract exists, the employee must determine whether a drug testing
policy would violate that agreement.
Employers who require employees to be drug screened must
have the test analyzed by a laboratory that is certified under state regulations.
Additionally, employees who test positive for drugs have a right to the results
of the test and an opportunity to have the test sample analyzed by a laboratory
at the employee’s expense. There are similar requirements for applicants
for employment and for contractors who are required to undergo drug screening
by an employer. However, in public service jobs, drug testing may constitute
an unlawful invasion of the employee’s privacy or otherwise be considered
unlawful. Each case must be evaluated by the specific facts involved.
If you believe your rights have been violated you should
contact a qualified attorney or the governmental agency that enforces the
law in question. Not only will they be able to explain how the law applies
to you, but they can also provide information on any changes in the law.
The names and addresses and telephone numbers of all governmental agencies
referred to in this information are listed below:
Equal Employment Opportunity Commission
Appraisal Store Building
10 South Howard Street
Baltimore, Maryland 21202
Maryland Human Relations Commission
6 Saint Paul Street
Baltimore, Maryland 21202
National Labor Relations Board
Appraisal Store Building
103 South Gay Street
Baltimore, Maryland 21202
Maryland Occupational Safety and Health
Division of Labor and Industry
1100 North Eutaw Street, Room 613
Baltimore, Maryland 21201
U.S. Department of Labor
Wage and Hour Division
103 South Gay Street
Baltimore, Maryland 21201
Maryland Division of Economic and Employment Development
1100 North Eutaw Street
Baltimore, Maryland 21201
Workers’ Compensation Commission
6 North Liberty Street
Baltimore, Maryland 21201-3785
Employees Rights in the
Workplace © 1986, MSBA, Inc. Revised 1999
All rights reserved. No part of this work may be reproduced in any
form without written permission from the Maryland State Bar Association.