Get DirectionsEffective October 1, 2011, the new Job Applicant Fairness Act will prohibit employers from using an applicant’s or employee’s credit report or credit history to take an adverse employment action, such as denying employment, discharging an employee, determining compensation, etc. Certain employers are exempted from the statute such as financial institutions and certain uses that are “substantially job-related” will be permitted, such as looking at a credit report of a person applying for a position that involves access to “personal information” of customers. Interestingly, jobs that provide access to cash registers and retail credit cards are not excluded, i.e., restaurants or retail establishments, for example, may not access credit histories of their cashier applicants. Civil penalties of $500 and up to $2500 for repeat offenders may be assessed by the Maryland Commissioner of Labor.
SUMMARY OF TAX RELIEF, UNEMPLOYMENT INSURANCE REAUTHORIZATION AND JOB CREATION ACT OF 201
SUMMARY OF TAX RELIEF, UNEMPLOYMENT INSURANCE REAUTHORIZATION AND JOB CREATION ACT OF 2010
Please click the title to open a hyper-link for our Summary of the recently passed tax legislation. We have, for your convenience, included this a separate document so as to allow you to read it on your computer or print it out.
We hope you find our Summary informative and helpful. Please feel free to share it with others.
If you have any questions, please feel free to contact us. Please note that your individual circumstances may differ so you should check with a tax professional to ensure that any interpretation of our Summary fits your particular circumstances.
Maryland Statutory Power of Attorney (Loretta’s Law)
Effective October 1, 2010, Maryland has a new law regulating both general and limited powers of attorney. There will be two new optional statutory power of attorney forms,
- Maryland Statutory Form General Power of Attorney: With the Personal Financial Power of Attorney, the agent is granted very broad authority to act on behalf of the principal in financial and business matters.
- Maryland Statutory Form Limited Power of Attorney: The Limited Power of Attorney allows the principal to specify which powers are given to the agent.
Every power of attorney under the new law must be:
- In writing
- Signed by the principal
- Acknowledged by the principal before a notary, and
- “Attested and signed by two adult witnesses who signed in the presence of the principal and in the presence of each other
With some exceptions, a photocopy or electronically transmitted copy of the original power of attorney will be as valid and binding as the original.
A power of attorney executed in Maryland will be considered “durable” unless otherwise provided in the document (i.e., will survive the disability or incapacity of the principal).
Once an agent has accepted appointment, he/she is required to act loyally for the principal’s benefit, not create a conflict of interest, keep a record of all receipts, disbursements and transactions made on behalf of the principal, cooperate with a person that has authority to make health care decisions for the principal and attempt to preserve the principal’s estate plan, if known and if such preservation is consistent with the principal’s best interest.
The new statute provides that “a person may not require an additional or different form of a power of attorney for any authority granted in a statutory form power of attorney.” The purpose of this provision is to prevent others from refusing to honor the new form. Any person who refuses to accept an acknowledged statutory form power of attorney is subject to a court order mandating acceptance of the document and also is liable for attorney’s fees and court costs if the court confirms the validity of the power of attorney or mandates its acceptance.
HITECH Act – HHS Proposed Rule
On July 8, 2010, HHS issued a proposed rule which modifies existing HIPAA Rules to extend the applicability of certain privacy and security requirements to the business associates of covered entities, to establish new limitations on the use and disclosure of protected health information for marketing or fundraising purposes, to prohibit the sale of protected health information, to expand individuals’ rights of access to their health information, and to obtain restrictions on certain disclosures of protected health information to health plans. In addition, the proposed rule would strengthen and expand HIPAA’s enforcement provisions. Health care providers should revisit their privacy plans and Business Associates agreements in light of the new requirements. Please contact us for assistance.
New Legislation for Small Businesses
On September 30, 2010, Congress created a new Small business Lending Fund with $30 billion in unused TARP funds to help small business lending. This initiative offers capital investments with incentives for banks to increase small business lending. The new program includes higher SBA loan limits and high SBA loan guarantees, as well as temporary fee eliminations. The hope is that the new legislation will make it easier for small businesses to get loans. The law also includes tax cuts to encourage small bsuinesses to invest, hire and raise workers’ salaries.
The Healthy Retail Employee Act
Effective March 1, 2011, retailers who conduct business in Maryland must provide their employees with mandatory shift breaks or be subject to substantial fines of up to $300 per employee for a first offense. The Healthy Retail Employee Act (the “Act”) applies to retail establishments with 50 or more retail employees.
For purposes of the Act, a retail establishment is defined as a “place or business with the primary purpose of selling goods to a consumer who is present at the place of business at the time of sale.”
The Act requires a retailer to provide the following breaks to nonexempt employees, depending on the length of the shift:
- 4 to 6 consecutive hours requires a nonworking shift break of at least 15 minutes;
- 6 or more consecutive hours requires a nonworking shift break of at least 30 minutes;
- 8 or more consecutive hours in a single shift requires an additional nonworking shift break of at least 15 minutes for every 4 consecutive hours.
An employee may waive his or her right to the nonworking shift break in a written agreement if his/her hours do not exceed 6 consecutive hours.
The Act also provides for a “working shift break” if the employee’s work prevents him or her from being relieved during the shift break, or the employee is allowed to consume a meal while working and is paid. However, a working shift break under either circumstance must be mutually agreed to by the employer and the employee in writing.
If an employee believes that the Act has been violated, he or she may file a complaint with the Maryland Department of Labor, Licensing, and Regulation (DLLR). If the DLLR determines that the Act has been violated, it may fine a retailer up to $300 for each employee for whom the employer is not in compliance. If the DLLR finds a similar violation within 3 years, it may assess a civil penalty up to $600 for each affected employee. In assessing the amount of any civil penalty, the DLLR shall consider the: (1) seriousness of the violation; (2) size of the employer’s business; (3) employer’s good faith; and (4) employer’s history of compliance.
Maryland retailers must establish break policies to ensure that they are in compliance with the Act. Maryland Retailers must implement systems in order to track and prove, if necessary, that an employee has taken the required break. If an employee will be taking “working shift breaks,” the employer must make sure to obtain the employee’s consent in writing.
Commercial E-Mail
A person may not initiate the transmission, conspire with another person to initiate the transmission, or assist in the transmission of commercial electronic mail that:
(1) Is from a computer in Maryland or is sent to an electronic mail address that the sender knows or should have known is held by a resident of Maryland; and
(2) Uses a third party’s Internet domain name or electronic mail address without the permission of the third party; Contains false or misleading information about the origin or the transmission path of the commercial electronic mail; or (iii) Contains false or misleading information in the subject line that has the capacity, tendency, or effect of deceiving the recipient.
A person who violates the foregoing is liable for reasonable attorney’s fees and for damages: (1) To the recipient of commercial electronic mail, in an amount equal to the greater of $500 or the recipient’s actual damages; (2) To the third party without whose permission the third party’s Internet domain name or electronic mail address was used, in an amount equal to the greater of $500 or the third party’s actual damages; and (3) To an interactive computer service provider, in an amount equal to the greater of $1,000 or the interactive computer service provider’s actual damages.
Commercial Law Article of the Maryland Annotated Code, Title 14, Subtitle 30
Maryland Bulk Sale Rules
Under the Maryland bulk sale statute, the purchaser of a business has a dual duty to first notify the seller’s creditors of the upcoming sale, and second, to ensure that any creditors of the seller are paid out of the proceeds of the sale. The purchaser must send out written notices to the seller’s creditors at least ten days prior to closing. A purchaser’s duty to ensure creditors are paid extends thirty days from the date notices are sent. In a transaction where the bulk sale statute is applicable, if the purchaser does not elect to withhold some of the purchase price at closing to cover seller’s debts, it may have unintended transferee/successor liability. MD Code, Commercial Law, §6-101 – §6-110
Employment Law
Under the Fair Labor Standards Act of 1938, as amended, certain non-discretionary gift, bonus or commission payments must be included in a non-exempt employee’s regular rate for purposes of computing the employee’s overtime rate. 29 USC § 201 et seq.; 29 CFR Parts 510 to 794.
Business Law
The FTC adopted a new rule, known as the “Red Flags Rule” which requires many businesses and organizations that take payment by credit cards to implement a written identity theft prevention program to detect the warning signs of identity theft in their day-to-day operations. 16 CFR Part 681.
