7/23/2019 Md Guide Wage Pay http://slidepdf.com/reader/full/md-guide-wage-pay 1/22 THE MARYLAND GUIDE TO WAGE PAYMENT AND EMPLOYMENT STANDARDS This booklet is a publication of the Employment Standards Serv!e o" t#e Maryland Dvson o" La$or and Ind%stry& Department o" La$or& L!ensn' and Re'%laton . The Employment Standards Service is responsible for enforcing the Maryland Wage Payment and Collection La. The !uide is meant to be used by employees and employers as a general reference source on ages and employment in Maryland. The information contained ithin identifies and discusses many fundamental elements of the Maryland la" and attempts to address many of the most often asked #uestions. This booklet is not e$haustive" hoever" and should not be cited as legal authority or used as a substitute for legal advice. %uestions concerning this publication and the topics discussed may be addressed to the Employment Standards Serv!e at ()*+, -.-/012-. The mailing address is &&'' (. Euta St." )oom *'+" ,altimore" Maryland -&-'&. 3ONTENTS Section Page I4 Maryland Wa'e La5s / In General II4 Remedes "or Unpad Wa'es III4 Wor6 Iss%es /. What is 0Work01 ,. Change of Work 2ours3 /n Employer4s )ight C. Employee or 5ndependent Contractor1 6actors in Making the 7istinction beteen an Employee and an 5ndependent Contractor Case Studies I74 Wa'es and 3ompensaton /. What is a 0Wage01 ,. 6re#uency of Pay C. Wage Payment at Termination3 When 6inal Paycheck is 7ue 1
THE MARYLAND GUIDE TO WAGE PAYMENT AND EMPLOYMENT STANDARDS
This booklet is a publication of the Employment Standards Serv!e o" t#e Maryland Dvsono" La$or and Ind%stry& Department o" La$or& L!ensn' and Re'%laton. The EmploymentStandards Service is responsible for enforcing the Maryland Wage Payment and Collection La.
The !uide is meant to be used by employees and employers as a general reference source onages and employment in Maryland. The information contained ithin identifies and discussesmany fundamental elements of the Maryland la" and attempts to address many of the most oftenasked #uestions. This booklet is not e$haustive" hoever" and should not be cited as legalauthority or used as a substitute for legal advice.
%uestions concerning this publication and the topics discussed may be addressed to theEmployment Standards Serv!e at ()*+, -.-/012-. The mailing address is &&'' (. Euta St.")oom *'+" ,altimore" Maryland -&-'&.
3ONTENTSSection Page
I4 Maryland Wa'e La5s / In General
II4 Remedes "or Unpad Wa'es
III4 Wor6 Iss%es
/. What is 0Work01
,. Change of Work 2ours3 /n Employer4s )ight
C. Employee or 5ndependent Contractor1
6actors in Making the 7istinction beteenan Employee and an 5ndependent Contractor
Case Studies
I74 Wa'es and 3ompensaton
/. What is a 0Wage01
,. 6re#uency of Pay
C. Wage Payment at Termination3 When 6inal Paycheck is7ue
The Maryland Wage Payment and Collection La sets forth the rights by hich employeesreceive ages. The la states hen and ho often employees must be paid" general guidelinesfor making age deductions" hich actions are prohibited and ho employees may enforce their rights.
The Maryland Wage and 2our La concerns minimum age and overtime. The la specifieshich categories of employers and employees are e$empt" and provide enforcement poers andremedies. The Maryland Wage and 2our La is similar to the federal 6air Labor Standards /ctB6LS/" but contains some important differences. 5n every case" orkers and employers areadvised to contact the 9.S. 7epartment of Labor" Wage and 2our 7ivision" at ()*+, :.0/.0**" toassure compliance under the federal la. Where either state or federal la is more stringent" the
higher standard applies.
; 5n the case of both Maryland and 6ederal las" the age of a minor and theimmigration status of an alien have no bearing on a orker4s rights to receive earned ages hicheach provide.
; 6ederal" state and local governments are e$empt from the provisions of the WagePayment and Collection La" but they must comply ith the federal 6air Labor Standards /ct.
II4 REMEDIES 9OR UNPAID WAGES
5f you are an employee hose ages have been illegally ithheld" you have three options under the Maryland Wage Payment and Collection La Byou may only choose one3
*4 The Employment Standards Service BESS" at ()*+, -.-/012-" can provide informationon ages and employment rights under Maryland la. 8n receipt of a proper claim for unpaidages available by calling BD&' +*+;-A+ or on line at.dllr.Fmaryland.govGformsGessclaimform.doc " ESS ill conduct an independentinvestigation and ork to collect any pay hich is determined due. This may include taking theemployer to court if the matter cannot be informally settled.
6or those ishing to file a claim for unpaid ages" and for #uickest results" it is suggestedthat a CE)T565E7 letter )ET9)( )ECE5PT )E%9ESTE7" be sent to the employer stating theamount of money oed" identifying the hours and days or commissions this money represents"and demanding payment by a specific deadline Bsuch as &' days from receipt of the certifiedletter. 5t may help collection on the claim later to send the letter Certified Mail" as suggested" soas to receive back the green receipt proving the employer signed for and received it. 5n addition"a copy of this letter should be kept and later provided together ith a claim form to theEmployment Standards Service if the employer still does not pay. To re#uest a claim form to be
mailed" call D&';+*+;-A+ or you may donload the claim form on line by visiting our eb site at5554dllr<maryland4'ov= follow to HLabor and 5ndustryHWage I 2ourHClaim 6orm. Be sureto answer all questions and follow all directions when completing the claim form. The claim form must include your original signature and be mailed to ESS before an investigation isinitiated.
04 /n employee may file a lasuit. Where a court finds that ages ere ithheld inviolation of the Maryland Wage Payment La" and not as a result of a bona fide dispute" the courtmay aard damages of up to three times the amount of the unpaid age plus attorney fees.
14 /n employee may file criminal charges. 9nder certain circumstances" Marylandla imposes criminal penalties for an employer ho deliberately fails to pay the age of anemployee ithout a valid reason" or provides employment ith the intent not to pay.
;Note on >%rsd!tonClaims for unpaid ages must be brought in the state in hich the ork as performed. 5f ork as performed in more than one state" claims may generally be filed in the state in hich the
employer maintains its business office;that is" the office here the employee reports to or ashired out of.
The folloing is a list of phone numbers of age and hour offices in neighboring states and political subdivisions3
; Work is service performed by an employee at the re#uest and under the control of an employer and" therefore" on the employer4s time.
; Work is compensable ;; that is" something for hich an employee is entitled to be paid.
; Work under the Maryland Wage Payment and Collection La does not includevol%nteer serv!e" if the individual took the ob ith the full and voluntary understanding that he
or she ould not be paid" there is in fact no employer;employee relationship" and the activity is performed for the benefit of a charitable" educational" not for profit" or religious organiNation.
Work does not necessarily re#uire an employee to do or accomplish anything. Work may onlyinvolve fulfilling the re#uirements or folloing the directions of the employer ;; even here anemployer instructs a orker to report to the ob site at + /M and do nothing until called on.Work may even mean sleep time if a orker must remain on the premises for anytime less than -Dhours. Where free to leave ithout the possibility of conse#uence" the orker is on his or her on time" even if instructed to remain 0on call0 ith a beeper" and may not be entitled tocompensation. 8nce called back to ork" hoever" compensation becomes due.
B4 3#an'e o" Wor6 Ho%rs8 An EmployerCs R'#t
5n the absence of an employment contract" agreement or policy hich states otherise" anemployer may shorten or lengthen an employee4s ork hours" or change the shift or times for employment" at any time at the employer4s discretion. O Note: Generally qualifying employeeswho wor! more than "# hours in a wor! wee! must be paid time and one$half for overtime.
34 Employee or Independent 3ontra!tor
%aryland wage and employment laws do not apply to &'ndependent (ontractors&.
The #uestion of ho is an employee and ho is an independent contractor is important and oftencomple$. Moreover" the financial conse#uences in making this determination are significant for both orkers and employers. 6or orkers" these conse#uences include entitlements to minimumage and overtime pay" unemployment benefits" orkers4 compensation benefits" Social Securityemployer contributions" federal and state ta$ ithholdings" protections against illegal employmentdiscrimination" etc. /t stake for employers are the financial and legal obligations in complying
ith these federal and state re#uirements.
6or individuals in lands!apn' and !onstr%!ton" please refer to the Wor6pla!e 9ra%d A!t athttp3GG.dllrFmaryland.govGorkplace.6or all other individuals" a signed agreement declaring that a orker is an independent contractor is not" by itself" enough to establish the fact. The 0economic reality0 of the ork relationshipdetermines the orker4s status. Thus" if to individuals in fact stand in the relation of employer and employee to each other" it is irrelevant that the orker has agreed to be called an independentcontractor. The measurement" method" or designation of compensation is also of lesser importance" if the relationship of employer and employee in fact e$ists.
Many government agencies have their on criteria for making the employee versus independentcontractor distinction. These criteria often are established under separate las.
; 9a!tors n Ma6n' t#e Dstn!ton Bet5een an Employee and an Independent
3ontra!tor
/lthough many factors are considered" and no one factor by itself is controlling" the folloing
basic principles often apply in determining hether a orker is an employee or an independentcontractor3
!enerally" the employerGemployee relationship e$ists hen the person for hom services are performed has the right to control and direct the individual who performs the services" not onlyas to the result to be accomplished by the ork" but also as to the details and means by hichthat result is accomplished. That is" an employee" and not an independent contractor" is subect tothe ill and control of the employer not ust as to 0hat0 shall be done" but 0ho0 it shall bedone.
The right to discharge is also an important factor indicating that the person possessing that rightis an employer" and the person subect to it is an employee. 8ther factors characteristic of anemployer;employee relationship are the furnishing of tools materials and a place to wor! to theindividual ho performs the services.
5ndependent contractors are persons ho are in business for themselves. Their business is usuallydifferent from the business of the person for hom the ork is performed. !enerally" those who
follow an independent trade business or profession in which they offer their services to the public and who may be in a position to suffer financial loss rather than a guaranteed wage areindependent contractors and not employees. Persons involved in certain professions andoccupations are often conducting business as independent contractors. These include physicians"layers" dentists" veterinarians" construction contractors and subcontractors" certified publicaccountants" etc. 2oever" many persons ith these occupations ork for firms" associations"institutions" leasing companies or organiNations and" in those cases" may be employees and notindependent contractors.
; 3ase St%des
The folloing three case studies are generaliNed e$amples of situations here the #uestions of employee or independent contractor commonly arise. They are by no means comprehensive" andillustrate the operation of only some of the factors applied in making the distinction.
A4 / company runs a referral service for physical therapists" here hospitals or other health care organiNations call to obtain temporary orkers in that field. When an order isreceived" the company sends out a physical therapist from its list. The client health careorganiNation pays the referral company ho" in turn" keeps an amount for its overhead and profitand pays an hourly or daily amount to the physical therapist. /lthough the physical therapist isnot directly supervised by the referral company" the company maintains the right to e$pectadherence to acceptable performance standards and to discharge the physical therapist on anyadverse reports from client health care organiNations.
The referral company4s right to discharge" together ith its administration of the contract ith theclient health care organiNation and its payment of ages to the orker" appear to indicate that the physical therapist is most li!ely an employee and not an independent contractor .
B4 / general contractor hires a painter to paint a ne house. The general contractor
is not" herself" a housepainter. The painter uses his on tools" obtains his on materials" is free tohire helpers if necessary" comes and goes hen he likes Bas long as he gets the ob done properlyand on schedule" and bids for other obs during the period he is performing the ob for the generalcontractor.
The painter appears to be in business for himself. The general contractor provides no assistanceor direction to the painter in the performance of the ob" but is only interested in the end product.The painter is most li!ely an independent contractor and not an employee.
34 / truck oner hires a driver to deliver loads the oner has contracted to haul for alarge transportation company. The driver is free to take the truck home ith her but is instructedto leave it parked on the street. The driver is free to devise her on routes" reect any load sheishes" and ork her on hours ithin the constraints of the company4s deadlines. She is alsofree from direct daily supervision" merely reporting to the oner on a eekly or bi;eekly basis.The oner pays all bills on the truck including fuel" tolls" insurance and maintenance. The oner pays the driver A'Q of the gross receipts.
/lthough some elements e$ist hich ould seem to point to the driver as an independentcontractor" other elements outeigh them including the oner4s control over the truck" 0hiring0 of the driver" and control over the contract ith the transportation company. )n balance thereforethe driver is more li!ely an employee than an independent contractor .
I74 WAGES AND 3OMPENSATION
A4 W#at s a @Wa'e@
/ age is payment or compensation earned by an employee for ork performed under anemployer4s direction" or ith the employer4s knoledge or consent. !enerally" ages are paid as
currency B9.S. 7ollars representing a length of time orked" but may also include the folloing3
&. Bon%s / This could include a monetary reard for finishing a special proect or completing a length of employment.
-. 3ommsson ; This is usually a portion of the sale price of some commodity or service hich the employee has sold on behalf of the employer" or some promised amount of money as a reard for making the sale.
A. 9rn'e Bene"t. This could be many things" but often involves some accrued or accumulated compensation such as vacation B0annual0 leave" sick leave" or other promised benefit.
D. Overtme
. /ny Ot#er @Rem%neraton@ Bcompensation promised for ork performed.E$amples could include room and board" materials and inventory" etc.
Employees in Maryland must be paid at least once every to eeks or tice in a month.2oever" Ee!%tve" Pro"essonal and Admnstratve employees may be paid less fre#uentlyBSee the discussion on E$ecutive" Professional and /dministrative employees" Section 74 B.
34 Wa'e Payment at Termnaton8 W#en 9nal Pay D%e
Each employer shall pay an employee" or the authoriNed representative of an employee" all agesdue for ork that the employee performed before the termination of employment" on or beforethe day on hich the employee ould have been paid the ages if the employment had notterminated.
D4 Wa'es Pad on Tme
!enerally" an employer must set regular paydays" and pay all earned ages of an employee ontime regardless of hether the employee has turned in a time sheet or punch card" #uit ithout
notice" or provided any other form or document re#uired by the employer. 5n addition" earnedages must be paid on time hether or not the employer has received payment from a customer or client for a ob on hich the employee orked.
5f payday falls on a nonorking day" such as a eekend or holiday" ages must be paid on the preceding orkday.
E4 Ded%!tons "rom Wa'es
Work" hether satisfactory or not" must be aarded compensation. Wage deductions aree$traordinary" and are prohibited unless3
&. / !o%rt has ordered or alloed the employer to make the deduction. E$amplesinclude court ordered age garnishments and orders to pay child support.
-. The 3ommssoner o" t#e Maryland Dvson o" La$or and Ind%stry hasalloed the deduction to offset or 0pay for0 something of value the employee has received.E$amples include long distance telephone calls on the employer4s business phone" personal loans"age advances" etc.
A. /lloed by some la5 or re'%laton of the government. E$amples include stateand federal ta$es.
D. The employee has given epress 5rtten a%t#orFaton to the employer to makethe deduction. This should take the form of a separate and distinct statement" signed by theemployee" concerning only the deduction and nothing more. Even ith a proper authoriNation"
hoever" employers must still pay at least the federal minimum age in the case of a deductionmade to offset a loss to the employer due to the admitted or court determined fault or negligenceof an employee Bfor e$ample" careless damage to the employer4s truck. 5f the deduction is madeto offset something the employee received or retained from the employer hich had monetaryvalue Bfor e$ample" personal loan" use of long;distance telephone line" materials" etc." thededuction may" in that case" reduce the employee4s ages belo the minimum age. 6inally" anauthoriNed deduction may be invalid if it violates or is inconsistent ith other federal or state lasor regulations.
94 Ded%!tons "or Unemployment and Wor6ersC 3ompensaton
/n employer may not deduct any part of the ages of an employee as representing or contributing to the employer4s legal obligation to pay unemployment or orkers4 compensationinsurance premiums.
G4 Un%sed 7a!aton at Termnaton // Is It Paya$le
The anser to this #uestion depends on the employer4s ritten policy" and hether this policy ascommunicated to the employee at the time of hiring. 6or e$ample" if an employer informsemployees in riting at the time of hiring that unused vacation leave ill be lost or forfeited upontermination" then an employee ill not be able to claim it. 8n the other hand" where the employer does not have a written policy that limits the compensation for accrued leave to a terminated employee that employee is entitled to the cash value of whatever unused earned vacation leavewas left $$ provided it was otherwise usable.
H4 Un%sed S!6 Leave at Termnaton // Is It Paya$le
,ecause sick leave is generally meant to be used in the case of sickness or for medical attention"its use is limited to those situations. Sick leave is therefore a contingency against illness" andcannot be claimed at termination in the same manner as unused vacation leave" unless e$presslyalloed in a contract or an employer4s policy.
I. 9le$le Leave A!t
Effective 8ctober &" -''K" the 6le$ible Leave /ct" Chapter *DD of the Las of Maryland -''K"authoriNes employees of employers ith & or more individuals to use Rleave ith pay for anillness in the employees immediate family Ua child" spouse or parent. Leave ith pay isconsidered time aay from ork for hich an employee is paid and includes sick leave" vacationtime" and compensatory time. /n employee may only use leave ith pay that has been earned andemployees ho earn more than one type of leave ith pay may elect the type and amount of leaveith pay to be used. /n employee ho uses leave ith pay under this la is re#uired to complyith the terms of any collective bargaining agreement or employment policy.
The 6le$ible Leave /ct prohibits an employer from discharging" demoting" suspending"
disciplining or otherise discriminating against an employee or threatening to take any of theseactions against an employee ho e$ercises rights under this la. This la does not affect leavegranted under the 6ederal 6amily and Medical Leave /ct of &A.
>4 Adopton Leave
/n employer including a unit of State or local government that employs individuals ho are notsubect to the provisions of Title " Subtitle of the State Personnel and Pensions /rticleV ho provides leave ith pay to an employee folloing the birth of the employee4s child shall providethe same leave ith pay to an employee hen a child is placed ith the employee for adoption.
?4 Deployment Leave
Effective 8ctober &" -'&AV 7eployment Leave authoriNes individuals of employers ith ' ormore employees ho are employed to ork full;time or part;time" has orked for the employerfor the last &- months and has orked at least &"-' hours during the last &- monthsV leave fromork on the day that an immediate family member U spouse" parent" stepparent" child" stepchild or
sibling of the employee is leaving for" or returning from" active duty outside the 9nited States as amember of the armed forces of the 9nited States.
/n employer may not re#uire an employee to use compensatory" sick" or vacation leave hentaking leave under this section.
/n employer may re#uire an employee re#uesting leave under this section to submit proof to theemployer verifying that the leave is being taken in accordance ith subsection Bb of this section.
L4 Holdays and Holday Pay8 No Enttlement
9nless there is an employment contract" agreement or policy providing for such benefits" state ladoes not guarantee days off for holidays or any special holiday pay for private sector employees"e$cept an unpaid religious day of rest each eek for retail employees ho give prior rittennotice to their employers. Moreover" an employer may re#uire an employee to ork on a holiday"and is not re#uired to pay e$tra in doing so.
M4 Temporary 3los%res& Sno5 Days& Et!48 Not 3ompensa$le
/n employer may temporarily close its business for any reason and for any length of time ithoutoffering special compensation to non;e$empt employees ho cannot go to ork as a result. Thisis commonly true" for e$ample" during sno emergencies. 2oever" for salaried employees hofit the definition of E$ecutive" /dministrative or Professional Bdefined in this !uide at paragraph74 B4" and ho are ready" illing" and able to ork" deductions may not be made for time henork is not available. 7oing so ill remove this category of employee from e$empt salary status"entitling the orker to payment of overtime.
OSee also paragraph VI. B. below concerning *isplaced +or!ers and ,eductions in -orce.
5n the absence of an employment contract" agreement or policy hich states otherise" anemployer may loer the pay of an employee at any time folloing one full pay period advancenotice. Prior notice of a pay increase is not re#uired.
O4 Severan!e Pay
Maryland la does not guarantee severance pay hen employment terminates" unless promised inadvance in an employment contract" agreement or policy. 6or information on the federal lainvolving severance pay" contact the 9.S. 7epartment of Labor" Employee ,enefits Security/dministration at BK** DDD;A-+- " or Wage and 2our 7ivision at BD&' *-;*-&&.
P4 Un"orms8 Passn' On t#e 3ost
!enerally" the cost of providing and maintaining a uniform hich may bear the name or logo of
the employer may be passed on to an employee through a age deduction ;; ith the employee4ssigned ritten authoriNation. /n employee may be held responsible for the depreciated value of the uniform if it is not returned as re#uired.
4 3ompensa$le Tme8 9or W#at Tme M%st An Employee Be Pad
/ll of the time an employer re#uires an employee to be at ork is compensable time" hether or not the employee is officially 0on the clock0. This includes time driving in the employer4s truck from orksite to orksite during the day. 5t also includes time driving from the shop to the ork site at the beginning of the day and returning to the shop at the end of the day" if the employer re#uires the employee to report to and return to the shop. Some e$amples of lle'al practices
include the folloing3
Eample /: 0n employee is required to report to wor! at 1:2# but is not paid for the time before punch$in at 3:##.
Eample 4: 0n employee is not paid for the time she is required to clean$up theemployer5s shop at the end of the day.
R4 3omm%tn' to Wor68 Non/3ompensa$le
Time spent travelling or 0commuting0 to ork is non;compensable Bnot payable. This is true"even here an employee must drive a long distance. 2oever" as stated in the previous section"once reporting to ork Bsuch as to the employer4s shop or office" or any other place an employer re#uires an employee to report" the employee must then be paid for the time necessary to travelto a ork site or to accomplish some other mission the employer assigns.
9nless e$pressly provided in an employment contract" agreement or policy" an employer is notre#uired to allo an employee to ork the full to eek termination notice period Bor hatever other termination notice period given by the employee" nor pay the employee for the time notactually alloed to ork.
T4 Tpped Employees
Tipped Employees Bearning more than A' per month in tips8 must earn the State Minimum Wage)ate per hour. Employers must pay at least 14.1 per hour. This amount plus tips must e#ual atleast the State Minimum Wage )ate.
Note8 Tipped employees who are from time to time assigned to perform non$tip related tas!smust be paid by their employer at least the full minimum wage rate for that non$tipped time.
U4 Trann's and Meetn's8 3ompensa$le Tme
!enerally" an employee must be paid for training time and meetings ;; hether held during regular ork hours or not ;; if attendance at a training or meeting is re#uired and not 0voluntary0.Trainings and meetings are not 0voluntary0 if it is generally knon" or the employee reasonably believes" that non;attendance ill result in some negative effect on employment. B(ote3Commissioned employees may be an e$ception.
74 Dre!t Depost o" Wa'es8 7ol%ntary
With voluntary employee authoriNation" an employer may direct deposit ages. Though free toencourage participation in this system" an employer may not require it.
W4 Re!ord6eepn'8 An EmployerCs Respons$lty
Each employer shall keep" for at least A years" in or about the place of employment" a record of the name" address" race" gender BWhite ,lack G /frican /merican /merican 5ndian /sian (ative 2aaiian G Pacific 5slander 2ispanic or Latino and occupation of each employeeV therate of pay of each employeeV the amount that is paid each pay period to each employee" andV thehours that each employee orks each day and orkeek.
4 Holdn' Wa'es8 @One Pay n t#e Hole@
/n employer may not keep any part of the age of an employee" either by ithholding an entire paycheck" part of a paycheck" or by ay of incremental age deductions from several paychecks"
as security against some future or contingent occurrence. This practice amounts to a confiscationof pay and is a direct violation of the la re#uiring timely payment of earned ages.O(ote3 This section concerns the indefinite holding of ages as security" not the short;term delayof pay for payroll processing purposes.
Paying ages ith a bad check is the same as failing to pay ages and may subect an employer to civil and criminal penalties under the Wage Payment and Collection La and the MarylandCriminal Code.
J4 Pay "or L%n!# and Ot#er Brea6s 9nless the orker is under &K years old or is an employee ho orks in certain retailestablishments BSee section 7I4 G." there is no la re#uiring an employer to provide breaks"including lunch breaks. BSee section 7I4 D4 /n employer ho chooses to provide a break"hoever" does not have to pay ages for lunch periods or other breaks in e$cess of -' minuteshere the employee is free to leave the orksite Bor orkstation if leaving the orkplace is physically impractical" in fact takes their lunch or break Bhether freely choosing to leave or remain at the orksite" and the employee does not actually perform ork. 5f employees are toldtheir pay ill be reduced each day by one;half hour for lunch" and they are not free to take thislunch period ithout an e$pectation or reasonable understanding that they must ork or be onhand to ork" they must be paid for the time. / 0reasonable understanding0 that they must ork
or be on hand to ork is a condition in hich it is generally knon" or the employee reasonably believes" that failure to perform ork Bor be available 0on hand0 to perform ork during their break" ill result in some negative effect on employment.
OSee also section 7I4 D4 regarding rights to breaks and benefitsOSee also section 7I4 G4 regarding Shift ,reaks
AA4 3ommssons
Commissioned sales agreements beteen an employee and employer are generally enforceablecontracts. Where an employee completes the specified services on a sale or account" and the
transaction is finaliNed through settlement" delivery and payment" the commission is usually payable unless a reasonable ;; but not e$cessive ;; lag time is agreed to in the event of customer return or default.
Where a commission is paid in advance of receipt of payment from the customer" but no provisionin an agreement beteen the parties provides for a refund to the employer of commissions paid"no deduction may be made from the future age of the commissioned employee in the event of customer return or default.
9nconditional agreements to forgo commissions upon termination of employment areunenforceable to the e$tent all re#uired services necessary to claim the commission erecompleted by the employee prior to termination.
BB4 Am%sement and Re!reatonal Esta$ls#ments
/musement and )ecreational Establishments ho meet certain re#uirements must pay employeesat least KQ of the State Minimum Wage )ate or +.-" hichever is higher.
Most employees must be paid *42 tmes their usual hourly rate for all ork over )+ #rs4 pereek. E$ceptions3
,oling establishments" and institutions providing on;premise care Bother than hospitals to thesick" the aged" or individuals ith disabilities for all ork over )K #rs4 per eek
/gricultural orkers for all ork over .+ #rs4 per eek
Note8 Leave hours" including vacation" sick time" holiday" etc." are not counted toard theaccumulated hours in a eek for overtime purposes. 8vertime is calculated on hours actuallyorked.
B4 Salared Employees8 No Overtme
Salaried employees" ho fit the description of 0Ee!%tve0" 0Admnstratve0 or 0Pro"essonal0"are generally eempt under the law from receiving overtime" regardless of the number of hoursthey are re#uired to ork in a eek. Some employers" in attempting to avoid paying overtime"make the decision to pay a salary to orkers ho do not fit the definition of Ee!%tve"Admnstratve or Pro"essonal. This practice does not eliminate the obligation of an employer to pay overtime based on a mathematical calculation of the employee4s average hourly age toemployees ho are otherise eligible.
6or Ee!%tve" Admnstratve and Pro"essonal employees receiving salaries" an employer maynot generally deduct or 0dock0 from ages any amount of time for missed ork hich is less thana full day. 7oing so may remove the employee from the 0e$empt0 status under the Wage and2our La" and entitle him or her to overtime pay after D' hours. /n employer may" hoever"
deduct any of the hours of missed ork from an employee4s accrued leave reserves Be.g." vacation"sick leave" compensatory time" etc. ithout eopardiNing the e$empt status.
To fall under one of the three e$empt categories" the folloing criteria are used for #uick reference3
&. Ee!%tve3
/n E$ecutive employee is one ho is compensated on a salary basis at a rate of not lessthan D per eek Be$cluding board" lodging or other facilities" hose primary duty isthe management of the enterprise in hich the employee is employed" ho customarily
and regularly directs the ork of to or more other employees" and ho has theauthority to hire or to fire other employees or hose recommendations as to hiring orfiring" advancement or promotion or change in employee status are given particulareight.
/n /dministrative employee is one ho is compensated on a salary basis at a rate of notless than D per eek Be$cluding board" lodging or other facilities" and hose primary duty is the performance of office or non;manual ork directly related to themanagement or general business operations of the employer" and hose primary dutyincludes the e$ercise of discretion and independent udgment ith respect to matters of
significance.
A. Pro"essonal3
/ Professional employee is one ho is compensated on a salary basis at a rate of not lessthan D per eek Be$cluding board" lodging or other facilities" hose primary duty isthe performance of ork re#uiring the knoledge of an advanced type in a field ofscience or learning customarily ac#uired by a prolonged course of specialiNed intellectualinstruction or re#uiring invention" imagination" originality or talent in a recogniNed fieldof artistic or creative endeavor.
34 Ho%rly and Non/Ee!%tve& Non/Admnstratve and
Non/Pro"essonal Employees8 May Re!eve Overtme
2ourly and 0hourly;type0 employees Bho do not fit the definitions of E$ecutive" /dministrativeor Professional" even thought they may receive a salary" generally are entitled to overtime. Somee$amples of 0hourly;type0 employees include office clerical orkers" landscape laborers" fast;foodemployees" health care orkers not meeting the regulatory definition of 0professional0 Bincludingmost categories of nurses in non;state facilities" dishashers" construction and factory orkers"day care orkers" maintenance orkers" etc. Where such employees receive a salary" asmentioned above" employers must mathematically compute the average hourly age rate bydividing hours into salary in order to determine the amount of overtime compensation to be paidat the rate of time and one;half.
D4 Independent 3ontra!tors
5ndependent Contractors are e$empt from federal and State overtime las. 2oever" orkersho are called independent contractors" but in reality are employees" may not be e$empt BseeSection III4 3 above.
E4 Mnm%m Wa'e and Overtme Eemptons8
Certain agricultural employees E$ecutives" administrative" and professional employees :olunteers for educational" charitable" religious" and non;profit organiNations Employees under &* orking less than -' hours per eek 8utside salesman Commissioned employees Employees enrolled as a trainee as part of a public school special education program (on;administrative employees of organiNed camps Certain establishments selling food and drink for consumption on the premises grossing
less than D''"''' annually 7rive;in theaters Establishments engaged in the first canning" packing or freeNing of fruits" vegetables" poultry" or seafood
94 Overtme Only Eemptons (m%st earn t#e State Mnm%m Wa'e
Rate,8
Ta$icab drivers Certain employees sellingGservicing automobiles" farm e#uipment" trailers" or trucks (on;profit concert promoter" theater" music festival" music pavilion" or theatrical sho Employers subect to certain railroad re#uirements of the 9.S. 7ept. of Transportation"the 6ederal Motor Carrier /ct" and the 5nterstate Commerce Commission
G4 Invol%ntary Overtme Pro#$ton "or L!ensed Pra!t!al N%rses or
Re'stered N%rses
/n employer may not re#uire a nurse to ork more than the regularly scheduled hoursaccording to the predetermined ork scheduled.
/ nurse may be re#uired to ork overtime if3
B& the ork is a conse#uence of an emergency situation hich could not have been reasonably anticipatedV
B- the emergency situation is nonrecurring and is not caused by or aggravated by the employers inattention or lack of reasonable contingency planningV
BA the employer has e$hausted all good faith" reasonable attempts to obtainvoluntary orkers during the succeeding shiftsV
BD the nurse has critical skills and e$pertise that are re#uired for the orkVB the standard of care for a patient assignment re#uires continuity of carethrough completion of a case" treatment" or procedureV and
B* Bi the employer has informed the nurse of the basis for the employersdirectionV and
Bii that basis satisfies the other re#uirements for mandatory overtime
listed under this subsection.Bd 5n addition to the provisions of subsection Bc of this section" a nurse may be
re#uired to ork overtime if3
B& a condition of employment includes on;call rotationV or
B- the nurse orks in community;based care.Be This section may not be construed to prohibit a nurse from voluntarily agreeing to
ork more than the number of scheduled hours provided in this section.
O NOTE : the federal law may be different or more defined regarding some of the topicsdefinitions and eamples discussed above. -or more information contact the 6.S. *epartment
A4 Employment At/Wll8 Termnaton o" EmploymentBnot under the enforcement poers of the Employment Standards Service
5n Maryland" employees ork 0at the ill0 of their employers. This means" in the absence of ane$press contract" agreement or policy to the contrary" an employee may be hired or fired for almost any reason ;; hether fair or not ;; or for no reason at all.There are certain e!eptons to this general rule hich provide some protection to employeesfrom illegal discrimination based on such categories as race" color" gender" national origin"religion" age" disability or marital status. E$amples of other employment at;ill e$ceptionsinclude las hich protect employees from termination or retaliation for filing orkers4compensation claims" for attempting to enforce rights to receive overtime or the minimum age"for asserting rights to ork in a safe and healthy orkplace" for refusing to commit criminal acts"for reporting for ury duty or military service" or for being subect to a age attachment for any
one indebtedness. Terminating an employee for any of these specific reasons may constitute aviolation under the applicable State or federal la.
B4 Dspla!ed Wor6ers8 Red%!tons n 9or!e
/lthough in possession of broad discretionary poers to terminate orkers at;ill" employersmay nevertheless be re#uired under the federal WARN La to provide advance notice of layoffsto employees under certain circumstances. 5n addition" the Maryland Economic StabiliNation /ct provides for the adoption of voluntary guidelines to be folloed by employers regarding advancenotification of reductions in operations" provision of information on continuation of benefits" andmechanisms for State assistance. 6or more information" contact the Maryland Dslo!ated
Wor6er Unt at ()*+, -.-/0K11.
Maryland la also re#uires employers to give notice to their local 8ffice of 9nemployment5nsurance hen laying off - or more employees for a common reason for periods in e$cess of +days.
34 Settn' t#e Terms o" Employment
5n the absence of a specific contract of employment limiting such action Band ith due regard tothe limitations imposed under applicable child labor las" department of transportation" MarylandWage and 2our La section A;D-& (urses" an employer may re#uire an employee to ork overtime" to ork on holidays" to ork at night" or to perform e$tra or different duties than theemployee as originally hired to perform" as the need may arise for the employer. /n employer may also treat one employee differently than other employees" such as by providing compensationat a different rate of pay. /s in the case of employment termination" hoever" the poer to dothese things is limited by the prohibition against illegal discriminationGretaliation discussed in thesection above. 0lthough sometimes appearing unfair to an affected employee such practicesare not necessarily illegal.
9nless the orker is under &K years old or is an employee ho orks in certain retailestablishments" there is no la re#uiring an employer to provide breaks" including lunch breaks.Minors under &K must receive a A' minute break for every hours of ork. 5n addition" state ladoes not guarantee days off for holidays or any special holiday pay for private sector employees"e$cept a religious day of rest each eek for retail employees ho give prior ritten notice to their employers.
Maryland la does not re#uire the aard of $ene"ts. E$amples include vacation leave" sick leave"compensatory time" holidays and holiday pay" health and life insurance" bonuses" severance pay"etc. The right to claim benefits only arises through a prior agreement of the parties.
OSee also section I74 J4 regarding pay for breaks
E4 Dr%' Tests
!enerally" hen folloing specific legal procedures" Maryland employers may re#uire employeesto be tested for the illegal use of alcohol and drugs for a &legitimate business purpose&.OMaryland /nnotated Code" 2ealth;!eneral /rticle" Section &+;-&D.
Such tests should be conducted at the employer4s e$pense.
94 >o$ Appl!ant 9arness A!t
Effective 8ctober &" -'&&. The <ob /pplicant 6airness /ct generally prohibits employers inMaryland from using a ob applicant or employee4s credit report to determine3 B& hether to hire
a ob applicantV B- hether to terminate an employeeV or BA the rate of pay or other conditions of employment to offer an employee.
G4 Healt#y Employee Retal A!t (S#"t Brea6s,
Employees ho ork in certain retail establishments are entitled to a non;orking shift breakdepending upon the number of hours orked. 2oever" certain employees are e$empt. Pleaserefer to the 2ealthy )etail Employee /ct 6/%s athttp3GG.dllr.state.md.usGlaborGagesGessretailfa#s.shtml .
7II4 WHERE TO 9IND HELP
,oth employees and employers may call the Employment Standards Serv!e at (410) 767-2357
ith any #uestions relating to the Maryland age las. 8ther employment related #uestions ill be ansered if possible" or referred to the appropriate authority.
Listed belo is a #uick reference guide to sources of information on various subect areasinvolving employment.
&. Employment Ds!rmnaton ;; Maryland Commission on Civil )ights" ()*+,-.-/K.++ or (K++, .1-/M33R " or E#ual Employment 8pportunity Commission at ()*+, :.0/1:10.
-. Mnm%m Wa'e and Overtme ;; 9.S. 7epartment of Labor" Wage and 2our 7ivision" ()*+, :.0/.0**.
A. Retrement Bene"ts Bincluding D'&Bk and E)5S/ ;; 9.S. 7epartment of Labor"Employee ,enefits Security /dministration" (K.., )))/10-0& TTY (K--, KK:/2.0-
D. Healt# 3are Bene"ts A"ter Termnaton o" Employment (3OBRA, ;; 9.S.7epartment of Labor" Employee ,enefits Security /dministration" K../)))/10-0. 5f less than -'employees" Maryland 5nsurance /dministration" ()*+, ).K/0+++.
. State S!aled or @Prevaln'@ Wa'e BState funded construction contract age#uestions ;; Maryland 7ivision of Labor and 5ndustry" Prevailing Wage 9nit" ()*+, -.-/01)0.
*. 9ederal S!aled or @Prevaln'@ Wa'e B6ederally funded construction contractage #uestions under the 7avis;,acon /ct ;; 9.S. 7epartment of Labor" Wage and 2our 7ivision" ()*+, :.0/.0**.
+. 9ederal Serv!e 3ontra!ts B6ederally funded non;construction contract age#uestions under the 6ederal Service Contract /ct ;; 9.S. 7epartment of Labor" Wage and 2our 7ivision" ()*+, :.0/.0**.
K. Unemployment Bene"ts ;; Maryland 8ffice of 9nemployment 5nsurance"6or Claimant 5nformation Call (K++, K0-/)K1:& TTY (K++, K0-/))++ or" in the ,altimore
. Wor6ersC 3ompensaton Bfor ork related inuries and illnesses ;; MarylandWorkers4 Compensation Commission" ()*+, K.)/2*++& (K++, ):0/+)-:& ()*+, -.-/+:++.
ONote3 't is the independent responsibility of an in=ured wor!er to obtain a wor!erscompensation claim form and file it within a certain time after in=ury. Employers are not required to provide this service to employees. 't is the responsibility of employers to file a -irst ,eport of 'n=ury. This is different than an employee5s claim for wor!ers compensation.
&'. Imm'raton 7er"!aton "or Employment& I/: Re%rements ;; 9.S.7epartment of Labor" Wage and 2our 7ivision" ()*+, :.0/.0**" or 9.S. 5mmigration and (aturaliNation Service" (K++, 12-/0+::. To file a complaint of national origin discrimination"citiNenship discrimination or document abuse in filling out the 5; or hen seeking employment"9.S. 7epartment of <ustice" 8ffice of Special Counsel" (K++, 022/-.KK.
Wor6ersC 3ompensaton 3ommsson. BD&' K*D;&''Provides a system of age and health care protection for eligible orkers ho have sufferedork;related inury or illness.
)e#uired PublicationsGPosters 6or Employers3&. 6irst )eport of 5nury Bform to be filed by employer upon notice of an inury-. Workers4 Compensation Poster
O""!e o" Unemployment Ins%ran!e. BK'' K-+;DKA" BD&' +*+;A-DProvides a system of age protection for eligible unemployed orkers through collection andadministration of unemployment insurance ta$ contributions from employers.
Maryland 3ommsson on 3vl R'#ts. BK'' *A+;*-D+" BD&' +*+;K*''Provides education on and enforces Maryland la prohibiting discrimination based on age"ancestry" color" familyGmarital status" disability" national origin" race" religion and se$ inemployment" public accommodations" housing and licensing.
)e#uired PublicationsGPosters 6or Employers3&. Employment 7iscrimination is 5llegal
Maryland O!!%patonal Sa"ety and Healt# (MOSH,.BD&' -+;DDEnsures a safe and healthful ork environment for Maryland orkers through inspections"consultation and trainings.
