Ok, I’ve been practicing law for decades, but there are still things that surprise me. And yesterday I learned something about the Maryland Code – that it actually doesn’t include all the laws! Wait – WHAT?!!!!
Now, I’ve always understood a state’s Code (also known by other names in other states, such as the Statutes or Revised Statutes or General Statutes) to be the official compilation of all the laws in the state. Each year in Maryland, the (majority Democratic) General Assembly passes legislation that is either signed by the (Republican) Governor or allowed to become law without his signature. (Sometimes he vetoes too, but his vetoes often get overridden by an aggressive General Assembly, so the bills still become law). Shortly thereafter, there’s a new version of the Code with the new laws placed into the appropriate section of the Code.
Because I’ve co-chaired the Labor & Employment Committee for the Maryland Chamber of Commerce for many years, I’m excruciatingly familiar with the employment legislation that gets passed each year. Yesterday, an incredibly observant colleague and member of my committee reached out to me about a #MeToo law that had passed in the 2018 General Assembly session – “Disclosing Sexual Harassment in the Workplace Act of 2018.”
As explained in our April 2018 E-Update, the law prohibits an employer from requiring a waiver of future sexual harassment or retaliation claims and prohibits an employer from taking adverse action against an employee for refusing to enter into an agreement with such a waiver. The law also contains a reporting provision, by which employers with 50 or more employees must submit an electronic survey to the Maryland Commission on Civil Rights (MCCR) on or before July 1, 2020 and on or before July 1, 2022 that contains:
- the number of sexual harassment settlements made (it is unclear over what period and whether only Maryland settlements are covered),
- the number of settlements paid to the same employee over the past 10 years, and
- the number of sexual harassment settlements containing a confidentiality provision (again, it is unclear over what period and whether only Maryland agreements are covered)
- Whether personnel action was taken against an employee who was the “subject” of a settlement (it is unclear if this means the harasser or the victim or both)
The reporting provision has a sunset date of June 30, 2023.
Now the final bill itself set forth the section number and volume of the Code where the new law would reside – Labor & Employment § 3-715. But, as my colleague noted, when she pulled up the new § 3-715, it only contains the waiver provision – the reporting provision is nowhere to be seen! I checked the actual book version of the Code, and that was also the case! (See picture above). I then pulled up another online and annotated version of the law, which had the reporting provision dropped into the notes to the law, but not in the law itself! Yet, as I discussed in the Top Tip in our March 2019 E-Update, the MCCR already has the referenced survey open on its website.
So, we wondered, if the provision is not in the Code, did it ever actually take effect (MCCR notwithstanding)? I then reached out to a brilliant friend of mine who serves as an Assistant Attorney General and had previously worked for the General Assembly. My friend immediately told me that it was an “uncodified law,” and airily added, “there are all these uncodified laws floating around out there.” WHAT?!!!
She explained that sometimes, the powers that be (the General Assembly and the Department of Legislative Services) choose not to include certain laws in the Code, such as some of those with a sunset provision because they don’t want to have these laws that are no longer in effect just hanging out in the official Code. Huh.
But that leads me to the obvious question – how are we supposed to comply with laws if we don’t know where they are or how to find them? Now, for the years that I’ve been working with the Chamber and going forward, I certainly know what those labor and employment laws are, whether or not they show up in the Code (and you can sign up for our e-communications if you want to stay on top of that as well). But what about before that time? Are there employment laws floating around out there in the ether, waiting to trap unwary employers? Is this the case in other states as well? My mind boggles. But if I ever find any of these mysterious laws, I’ll be sure to pass them along to you!