Unemployment Insurance online applications will be unavailable from about 12:00 AM ET until about 7:00 AM ET on Wednesday, September 24, 2014. We apologize for the inconvenience. Thank you for your patience.

DLLR's Division of Labor and Industry

 

Maryland's Living Wage Regulations

 

Code of Maryland Regulations (COMAR) 21.11.10

Title 21
STATE PROCUREMENT REGULATIONS

Subtitle 11  SOCIOECONOMIC POLICIES

21.11.10  Living Wage

Authority: State Finance and Procurement Article, Title 18, Annotated Code of Maryland

.01 Definitions.

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

(1) “Employee” means an individual who satisfies the criteria of the employer-employee relationship test which examines:

(a) If the employer has the power to select and hire the employee;

(b) If the employer pays the employee wages;

(c) If the employer has the power to discharge the employee;

(d) If the employer has the power to control the employee's conduct; and

(e) If the work is part of the regular business of the employer.

(2) “Employer” means:

(a)  A contractor who:

(i) Has a State contract for services valued at $500,000 or more; or

(ii) Employs more than 10 employees and has a State contract for services valued at greater than $100,000 but less than $500,000; or

(b) A subcontractor who:

(i) Performs work for a contractor who is an employer subject to the Living Wage Law on a State contract for services that is valued at $500,000 or more; or

(ii) Employs more than 10 employees and performs work for a contractor who is an employer subject to the Living Wage Law on a State contract for services that is valued at $100,000 or more but less than $500,000.

(3) Services.

(a) “Services” means the rendering of time, effort, or work, rather than the furnishing of a specific physical product other than reports incidental to the required performance.

(b) “Services” includes maintenance as defined in COMAR 21.01.02.01B(53) but does not include construction work or the purchase of goods.

(4) “Tier 1 Area” means Montgomery County, Prince George's County, Howard County, Anne Arundel County, Baltimore County, and Baltimore City.

(5) “Tier 2 Area” means any county in the State not included in the Tier 1 Area.

.02 Employees Covered Under the Living Wage Law.

A. The Living Wage applies to an employee who:

(1) Is 18 years old or older or who will turn 18 during the duration of a State contract for services subject to the Living Wage Law; and

(2) Spends at least one-half of the employee's time during any work week on a State contract for services subject to the Living Wage Law.

B. The Living Wage does not apply to an employee who works less than 13 consecutive weeks and full-time on a contract subject to the Living Wage Law.

.03 Employee Health Insurance.

A. An employer who reduces the wages paid to an employee based on the employer's share of the health insurance premium, as provided in §18-103(c), State Finance and Procurement Article, Annotated Code of Maryland, may not lower an employee's wage rate below the minimum wage as set in Labor and Employment Article, §3-413, Annotated Code of Maryland.

B. An employer who reduces the wages paid to an employee based on the employer's share of the health insurance premium shall comply with the record reporting requirements of Regulation .05 of this chapter.

.04 Employee Deferred Compensation Plan.

A. An employer may reduce the wage rates paid under State Finance and Procurement Article, §18-103(a), Annotated Code of Maryland, by not more than 50 cents of the hourly cost of the employer's contribution to an employee's deferred compensation plan.

B. An employer who reduces the wages paid to an employee based on the employer's contribution to an employee's deferred compensation plan may not lower the employee's wage rate below the minimum wage as set in Labor and Employment Article, §3-413, Annotated Code of Maryland.

C. An employer who reduces an employee's wage rate under §A of this regulation shall comply with the record reporting requirements of Regulation .05 of this chapter.

.05 Employer Reporting and Posting Requirements.

A. On the day that work on the contract begins, an employer to a State contract for services subject to the Living Wage Law shall file with the Commissioner of Labor and Industry the following:

(1) If the employer reduces the wages paid to its employees covered by the Living Wage based upon the employer's share of the health insurance premium:

(a) Documentation of the employer's cost and proof of payment for each employee under the employer's health insurance plan;

(b) The methodology that the employer uses to determine the hourly amount of health insurance deduction for each employee; and

(c) Signature cards or other documentation reflecting that the employee has authorized a deduction for health insurance;

(2) If the employer reduces the wages paid to its employees based upon the employer's contribution to an employee deferred compensation plan:

(a) The name of the employee deferred compensation plan;

(b) Proof that the deductions from the wages paid to an employee for the employee deferred compensation plan are being deposited in a bona fide deferred compensation plan; and

(c) Signature cards or other documentation reflecting that the employee has authorized a deduction for the employee deferred compensation plan;

(3) A list of the three most commonly used languages at the worksite;

(4) A copy of the Commissioner's "Contractor and Employee Information Form" and the "Subcontractor and Employee Information Form"; and

(5) Any other pertinent information that the Commissioner considers necessary.

B. An employer shall post the Commissioner of Labor and Industry's "Notice to Employees—Wage Requirements" on the day that work on the contract begins. Within 10 days after the posting of the notice, an employer shall submit to the Commissioner of Labor and Industry a copy of the Commissioner's "Certification of Posting the Wage Requirement Notice".

C. Subject to the provisions of §G of this regulation, within 14 days after the end of each payroll period, an employer shall submit to the Commissioner of Labor and Industry a complete copy of the following:

(1) The employee's payroll records for those employees who are covered under the living wage law pursuant to Regulation .02 of this chapter; and

(2) Each subcontractor's payroll records for those employees who are covered under the living wage law pursuant to Regulation .02 of this chapter.

D. Each payroll record that is submitted pursuant to §C of this regulation shall list the following:

(1) The name, address, and telephone number of the contractor or the subcontractor;

(2) The name, location, and project number of the job; and

(3) Each employee's:

(a) Name and at least the last four digits of the employee's Social Security number;

(b) Current address;

(c) Daily and straight time and any time over 40 hours in one work week;

(d) Total straight time and overtime hours for the payroll period;

(e) Rate of pay;

(f) Amount of deduction for health benefits, if any;

(g) Amount of deduction for the employee deferred compensation plan, if any; and

(h) Gross wages.

E. An employer submitting payroll records pursuant to §C of this regulation shall submit a statement that is signed by the contractor that indicates the following:

(1) The payroll records are correct; and

(2) The wage rate paid is not less than that required in State Finance and Procurement Article, §18-103, Annotated Code of Maryland.

F. The Commissioner may request that an employer periodically submit data, in a form acceptable to the Commissioner, including but not limited to payroll records, for those employees performing work in connection with a State contract for services.

G. Waivers.

(1) Request for a Waiver.

(a) An employer may submit to the Commissioner of Labor and Industry a written request for a waiver of the reporting requirements of §§C and F of this regulation.

(b) The request for the waiver shall state the reasons why the employer seeks a waiver.

(c) The Commissioner may, for good cause shown, waive the reporting requirements of §§C and F of this regulation.

(2) If the Commissioner waives the reporting requirements under this section, the Commissioner retains the right to:

(a) Audit the employer at any time;

(b) Reinstate the reporting requirements at any time;

(c) Change the interval for the submission of payroll records; or

(d) Do all of the actions in §G(2)(a)—(c) of this regulation.

(3) If the Commissioner waives the reporting requirements under this section, the employer is required to post a copy of the waiver notice in the same location as the employer posts the notice to employees of wage requirements.

.06 Employer Record Retention Requirements.

An employer shall retain the following records at the worksite or at a readily accessible location for 3 years:

A. Payroll records covering work performed at the worksite; and

B. Copies of health insurance plans and employee deferred compensation plans.

.07 Determination of Tier 1 or Tier 2.

A. If services under a contract subject to State Finance and Procurement Article, Title 18, Annotated Code of Maryland, are capable of being performed in both Tier 1 and Tier 2, the head of the unit responsible for a State contract pursuant to State Finance and Procurement Article, §18-102(d), Annotated Code of Maryland, shall assign the tier based upon where the majority of the services are performed.

B. If the employees who perform the services are not located in the State, the head of the unit responsible for a State contract pursuant to State Finance and Procurement Article, §18-102(d), Annotated Code of Maryland, shall assign the tier based upon where the recipients of the services are located.

.08 Wage Rate Changes During Term of Contract.

An employer subject to State Finance and Procurement Article, Title 18, Annotated Code of Maryland, shall comply with the rate requirements during the initial term of the contract and all subsequent renewal periods including any increases in the wage rate, if adjusted, automatically upon the effective date of the revised wage rate.

.09 Prohibitions.

An employer may not split or subdivide a contract, pay an employee through a third party, or treat an employee as a subcontractor or independent contractor, or assign work to employees to avoid the imposition of any of the requirements of State Finance and Procurement Article, Title 18, Annotated Code of Maryland, or this chapter.

.10 Rules of Procedure for Hearings.

A. This regulation supplements the requirements of the Administrative Procedure Act, State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

B. The Commissioner of Labor and Industry may delegate the authority to conduct the hearing to the Office of Administrative Hearings.

C. The administrative law judge may:

(1) Administer oaths and affirmations;

(2) Rule on procedural matters and offers of proof and receive relevant evidence;

(3) Regulate the course of the hearing and the conduct of the parties and their counsel;

(4) Examine any witness;

(5) Compel the production of records, books, papers, and other evidence; and

(6) Take any other appropriate action authorized by statute or regulation.

D. Hearing Procedure.

(1) The administrative law judge shall:

(a) Call the title of the case;

(b) Explain briefly the purpose and nature of the hearing;

(c) Recite any charges, complaints, or other matters involved; and

(d) Administer the oath to all persons who are summoned or who intend to testify.

(2) Counsel or any party may be heard on any preliminary matter, exception, or motion, and any stipulation entered into by the parties shall be received.

(3) The following exhibits shall be introduced:

(a) If the administrative law judge is the Commissioner of Labor and Industry's designee, a copy of the letter designating the administrative law judge to preside at the hearing;

(b) A copy of the order for hearing sent to each interested party entitled to receive notice pursuant to State Finance and Procurement Article, §18-107, Annotated Code of Maryland; and

(c) Information obtained by the Commissioner of Labor and Industry as a result of any investigation pursuant to State Finance and Procurement Article, §18-107, Annotated Code of Maryland.

(4) The assistant attorney general shall proceed first and shall present evidence of any investigation made by the Commissioner of Labor and Industry.

(5) Subject to applicable statutes and rules governing the practice and procedure, each party or counsel representing a party may:

(a) Call witnesses;

(b) Offer evidence, including rebuttal evidence;

(c) Cross-examine any witness that another party or the agency calls; and

(d) Present summation and argument.

E. Determination of Administrative Law Judge.

(1) Within 7 days after the conclusion of the hearing, the administrative law judge shall issue a written proposed determination, which includes proposed findings of fact and conclusions of law, and the amount of restitution and liquidated damages to be assessed under State Finance and Procurement Article, §18-108, Annotated Code of Maryland.

(2) The proposed determination or an accompanying letter shall notify the parties that they may file written exceptions with, and present arguments to, the Commissioner of Labor and Industry.

(3) The administrative law judge shall serve, personally or by mail, a copy of the proposed determination on each party present or represented at the hearing.

(4) The proposed determination of the administrative law judge shall become the final order of the Commissioner of Labor and Industry unless exceptions are filed or the Commissioner orders review.

F. Review.

(1) Within 5 days from the postmark date of the proposed determination:

(a) The Commissioner of Labor and Industry may order review; or

(b) A party adversely affected by the proposed determination may request review in writing to the Commissioner.

(2) A request for review shall contain a concise statement identifying each portion of the administrative law judge's proposed determination for which a review is requested.

(3) A request for review shall be mailed to all other parties to the proceeding.

(4) After review of the proceedings with or without a hearing, the Commissioner shall:

(a) Issue an order based on findings of fact;

(b) Affirm, modify, or vacate the proposed determination, or proposed penalty, or direct other appropriate relief; and

(c) Mail copies of the order to all affected parties.

G. A party aggrieved by a final order of the Commissioner of Labor and Industry may obtain judicial review by filing a written petition with the appropriate circuit court within 30 days of issuance of the final order.

J. RONALD DEJULIIS
Commissioner of Labor and Industry

Title 21
STATE PROCUREMENT REGULATIONS

Subtitle 11  SOCIOECONOMIC POLICIES

21.11.10  Living Wage

Authority: State Finance and Procurement Article, Title 18, Annotated Code of Maryland

Notice of Final Action

[07-247-F]

On February 5, 2008, the Commissioner of Labor and Industry adopted new Regulations .01——.10 under a new chapter, COMAR 21.11.10 Living Wage. This action, which was proposed for adoption in 34:19 Md. R. 1706 ——1709 (September 14, 2007) and reproposed in 34:26 Md. R. 2285——2287 (December 21, 2007), has been adopted as reproposed.

Effective Date: February 25, 2008.

J. RONALD DEJULIIS
Commissioner of Labor and Industry