MAINE EMPLOYMENT LAW BASICS

Author: Eric J. Uhl | Last Modified: September 16, 2019

There are many different laws and regulations that govern the relationship between employers and employees in the workplace. At Richardson Whitman, we help employers and employees navigate the complex web of employment laws. This primer presents only an overview of the many different laws affecting the workplace and the employer-employee relationship. Please contact us if you have any questions about any of these laws or for assistance with your particular workplace questions. Our experienced employment lawyers can answer your workplace questions, evaluate claims, and represent you in litigation.

DISCRIMINATION, HARASSMENT & RETALIATION

Employers have an obligation to provide a workplace that is free of unlawful discrimination, harassment, and retaliation. Employees have the right to neutral employment policies and practices and equal opportunity with respect to the terms and conditions of employment, including hiring, discipline, compensation, benefits, promotions, terminations, and all other conditions of employment. Employers may not discriminate in their employment practices on the basis of age, race, religion, color, sex, sexual orientation, gender expression or identification, ancestry or national origin, physical or mental disability, pregnancy, genetic information, service member status, whistleblower status, or any other characteristic or category protected by law. The laws that prohibit unlawful discrimination include state laws such as the Maine Human Rights Act and federal laws such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and other laws. Depending on the law, in the event of an unlawful termination or other adverse employment action, employees may be entitled to back pay and front pay, reinstatement to their former position, emotional distress and other compensatory damages, injunctive relief, and attorney’s fees and costs. In some cases, in the event of deliberate or malicious conduct, an employee may be entitled to punitive damages.

Unlawful Discrimination. These characterizations—age, race, religion, color, sex, sexual orientation, gender expression or identification, ancestry or national origin, physical or mental disability, pregnancy, genetic information, service member status, whistleblower status, and so on—are known as legally “protected categories.” Generally, an individual has a disability if the person has a physical or mental impairment that substantially limits a major life activity, a record or history of such an impairment, or is regarded by the employer as having such an impairment. In addition, the Maine Human Rights Act contains a specific list of impairments that qualify as a disability.

Unlawful discrimination results if an employer makes an unfavorable employment decision or takes other adverse action against an employee because the employee is in one of the protected categories. Depending on the circumstances and the applicable law, unlawful adverse actions can include terminations or threats of termination, demotions, suspensions, transfers, disciplinary actions, or other actions that negatively affect an employee’s employment status, pay, and benefits.

Sexual Harassment and other Unlawful Harassment. Employers must ensure that their workplaces are free of sexual harassment and other forms of unlawful harassment. Unlawful sexual harassment can result when an employee is subjected to unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (1) submitting to the conduct becomes a term or condition of employment, (2) whether or not the employee submits to the conduct, it is used as the basis for employment decisions affecting the employee, or (3) the conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. There are generally two forms of unlawful sexual harassment: quid pro quo harassment, when a supervisor requests that an employee submit to sexual conduct in exchange for favorable employment terms, or hostile work environment harassment.

Unlawful harassment can also result if an employee is subjected to a hostile work environment on the basis of age, race, religion, color, sexual orientation, gender expression or identification, ancestry or national origin, physical or mental disability, pregnancy, genetic information, or any other category protected by law. For example, unlawful harassment on the basis of an employee’s disability, religion, or age can arise if the employee is subjected to slurs, negative comments or stereotypes, denigrating jokes, or other hostile acts that create an intimidating, hostile, or offensive work environment.

Unlawful Retaliation. Employers are prohibited from retaliating against an employee because the employee reports unlawful harassment or discrimination or participates or cooperates in an investigation about unlawful harassment or discrimination. For example, employers are prohibited from taking an adverse action against an employee, such as termination or a demotion, if the employee complains about unlawful harassment or reports unlawful harassment in the workplace.

REASONABLE ACCOMMODATIONS

Under the federal Americans with Disabilities Act and the state Maine Human Rights Act, employers are required to provide reasonable accommodations to qualified employees or applicants, unless to do so would cause an undue hardship to the employer. A reasonable accommodation is designed to allow a qualified employee to perform the essential functions of the job, or to permit a qualified applicant to complete the application process. Generally, reasonable accommodations can include modifications or adjustments to a job application process to enable a qualified applicant to be considered for a job, modifications or adjustments to the work environment or the manner in which the job is performed to enable a qualified employee to perform the essential functions of the position, or modifications or adjustments that enable a qualified employee to enjoy equal benefits and privileges of employment. In some cases, a leave of absence to address a disability may be a form of a reasonable accommodation. When an employee requests a reasonable accommodation, or when it becomes clear that an employee may need a reasonable accommodation to do the job, employers are required to undertake an interactive process with the employee to explore whether there is a reasonable accommodation that must be provided to the employee.

WHISTLEBLOWER PROTECTION

The Maine Whistleblowers’ Protection Act protects employees who engage in protected activities against retaliation in the form of adverse employment actions. An employee may be a legally protected “whistleblower” if the employee acts in good faith to report conduct by an employer that the employee reasonably believes is a violation of law or conduct that jeopardizes the health or safety of the employee or others. An employee may also be a whistleblower if the employee refuses in good faith to carry out a directive or activity that would violate law or would expose the employee or others to a condition that could result in serious injury or death. To be protected, an employee must first bring a violation or unsafe condition or practice to the attention of the employer before reporting the violation, condition, or practice to a public body or government agency, unless the employee has reason to believe that a report to the employer will not result in prompt correction. In addition, employees who are mandated reporters are protected against retaliation for making a report as required by law. Employers are prohibited from retaliating against employees who are whistleblowers by discharging, threatening, or taking other adverse action against the employee because of the employee’s protected whistleblowing activity.

In addition to the Maine Whistleblowers’ Protection Act, a variety of federal laws protect employees who are engaged in protected activity, including anti-retaliation provisions in the Occupational Health and Safety Act (OSHA), the Sarbanes-Oxley Act (reporting in the financial industry), the Surface Transportation Assistance Act, and many other laws.

FAMILY AND MEDICAL LEAVE AND OTHER LEAVE LAWS

Family and Medical Leave Act. Under the federal Family and Medical Leave Act (FMLA), employees are entitled to a leave of absence and job protection for specified medical or family reasons. To be eligible, an employee must have worked for a covered employer (an employer with 50 or more employees) for at least 12 months, must have worked at least 1250 hours, and must work at a location where the employer has at least 50 employees within 75 miles.

Eligible employees are entitled to up to 12 weeks of leave in a designated 12-month period:

due to the employee’s own serious health condition;
to care for a spouse, child, or parent with a serious health condition;
due to the birth of a child and to care for the newborn child;
in connection with the adoption or foster care of a child; or
due to a qualifying exigency arising out of the covered military duty of a spouse, son, daughter, or parent.

In addition, an eligible employee may be entitled to 26 weeks of leave during a 12-month period to care for a spouse, son, daughter, parent, or next of kin who is a covered service member with a serious health condition.

Generally, FMLA leave is unpaid, but employers may require employees to use available paid leave time during the FMLA leave of absence. If necessary, in some cases employees are entitled to take covered FMLA leave on an interim basis or to request a reduced work schedule due to the qualifying FMLA event. At the end of the FMLA leave period, employees are entitled to reinstatement to the same or equivalent position in terms of pay, benefit, and other terms and conditions.

Maine Family and Medical Leave. Similarly, under Maine law, eligible employees are entitled to up to 10 weeks of job-protected unpaid leave in a two-year period. To be eligible, an employee must have worked for at least 12 consecutive months and be employed at a job site where the employer has 15 or more employees. Eligible employees are entitled to leave for the serious health condition of the employee or the employee’s child, domestic partner’s child, parent, sibling, spouse, or domestic partner; birth of the employee’s child or the employee’s domestic partner’s child; adoption; organ donation; or the death or serious health condition of the employee’s spouse, domestic partner, sibling, or child while on active duty.

Paid Leave and Sick Leave. Generally, employers are able to set the terms of their own paid leave policies. Under Maine law, if an employer provides paid leave to an employee, the employer must permit the employee to use up to 40 hours of the paid leave time in a 12-month period to care for a child, spouse, or parent who is ill. In addition, beginning in January 2021, under Maine law employers with 10 or more employees must provide employees with at least 40 hours of paid leave time during a one year period, for the employee to use for any reason.

Military Leave. Employees are entitled to take a leave of absence for active military duty under state law and the Uniformed Services Employment and Reemployment Rights Act (USERRA). While on leave, employees are entitled to continuation of health insurance and other benefits.

Other Leave Laws. An employees who is a victim of domestic violence is entitled to time off from work, with or without pay, to prepare for and attend court proceedings, receive medical treatment, or obtain necessary services to remedy a crisis caused by domestic violence, sexual assault or stalking. Employers may voluntarily provide for other paid or unpaid leaves of absence for other circumstances, such as jury duty, bereavement, voting, or holidays.

Break Periods. In a place of business with at least three employees on duty, employees are entitled to an unpaid rest break of at least 30 minutes before they work six consecutive hours unless there is a written agreement otherwise.

WAGE AND HOUR LAWS

General Requirements. The federal Fair Labor Standards Act (“FLSA”) and the Maine wage laws govern minimum wage and overtime requirements. Under these laws, covered employers are required to pay “non-exempt” employees the required minimum wage and a premium overtime rate for work in excess of 40 hours in a work week. If a non-exempt employee works in excess of 40 hours in a work week, the employee is entitled to compensation at one-and-one-half (1 ½) times the employee’s regular rate of pay. The regular rate of pay includes the employee’s hourly rate plus adjustments for non-discretionary bonuses, shift differentials, and certain other compensation earned by the employee during the work week. Employers who violate the wage and hour laws may be liable for payment of two times the amount of unpaid wages and unpaid overtime, plus attorney’s fees and costs.

Exempt Employees. Certain employees are “exempt” by statute from the minimum wage and/or overtime requirements. If an employee is exempt, the employee is not entitled to additional pay for time worked in excess of 40 hours in a work week. There are many different statutory exemptions and partial exemptions for different types of employees, including outside sales employees, certain employees engaged in computer-related jobs, certain fire protection and law enforcement employees, farm workers, seasonal employees, commissioned retail or service employees, automobile parts clerks and mechanics, railroad and air carrier employees, and so on. The most widely applicable exemptions are for so-called white collar employees, including executive, administrative, and professional employees (including teachers). To be an exempt executive, administrative, or professional employee (in most but not all cases), the employee must (1) be paid on a salary basis at a rate that meets minimum statutory requirements, and (2) be engaged in work that meets a defined “duties test” for the particular exempt position. In other words, it is not enough to be paid on a salary basis; to be exempt from the minimum wage and overtime requirements, the employee must also perform specific work to show that the employee meets the definition of an executive, professional, or administrative employee. If an employer pays an employee on a salary basis, but the employee does not perform executive, professional, or administrative duties, the employer still must pay the employee overtime for hours worked in excess of 40 in the work week.

Work Time. An employer must pay an employee for all time spent “working.” Whether or not an employee is engaged in compensable work time depends on whether the employee is engaged in activity that is primarily for the employer’s benefit or the employee’s benefit. Depending on the circumstances, an employee may be engaged in compensable work time, and therefore must be paid, when engaged in the following activities: time spent in active and productive work, time spent waiting for work at the employer’s work site (if the employee is “engaged to wait”), time spent while on-call including time spent on-call away from the work site if the time involves enough constraints on the employee’s freedom, rest and meal time if the employee is not completely relieved of duties, sleeping time under certain circumstances, time spent traveling between jobs and in other circumstances, time spent at meetings and training programs if it is for the benefit of the employer, and time spent engaged in other activities.

Tipped Employees. A tipped employee, or a service employee, is an employee who is engaged in a job in which he or she regularly receives more than $30 a month in tips. Employers are allowed to count the tips received by tipped employees to offset minimum wage requirements. Under Maine law, an employer can consider tips as part of the minimum hourly wage that it pays to a tipped service employee, but this “tip credit” cannot exceed 50% of the effective minimum hourly wage. However, if the total of the employee’s wages plus tips for the week do not amount to at least the minimum hourly wage for that week, the employer must pay the difference in wages. Generally, tips belong to the employee providing the service to the customer. It is permissible for employees to establish a valid tip pooling arrangements among servers.

Other Wage Laws. Under Maine law, employers must pay employees for all wages earned at regular intervals not to exceed 16 days (i.e., on weekly, bi-weekly, or semi-monthly periods), including all wages earned through the pay period to within 8 days of the payment date. In addition, when an employee is terminated or resigns from employment, the employer must pay the employee in full no later than the employee’s next established payday. If the employer’s paid leave policy provides for payment of paid leave upon termination, the final paycheck must also include all accrued unused paid time off. Employers who violate these provisions may be liable for payment of three times the amount of unpaid wages, plus attorney’s fees and costs.

MARIJUANA IN THE WORKPLACE

This area of the law is rapidly developing. In general, under Maine law an employer may not engage in substance abuse testing, including testing for marijuana, unless the employer has a substance abuse testing policy approved by the Maine Department of Labor, or unless the employer is subject to a federally mandated substance use testing program. Marijuana is illegal under federal law and is classified as a Schedule I drug. Under the Maine Medical Use of Marijuana Act, an employer may not refuse to employ a person solely because of that person’s status as a medical marijuana patient, unless it would put the employer in violation of federal law. However, the law does not require an employer to accommodate the use of marijuana in the workplace or permit an employee to be under the influence of marijuana while working. Under the Maine Marijuana Legalization Act, the recreational use of marijuana is legal. However, the law does not require an employer to permit the use of marijuana in the workplace or prohibit an employer from disciplining employees who use or are under the influence of marijuana while working.

Employers should take steps to determine whether and to what extent they want to have an approved substance abuse testing policy and whether to test for marijuana under that policy. In addition, employers should establish a drug-free workplace policy that sets forth their requirements and expectations regarding the use of substances in the workplace and makes it clear that employees may not be under the influence of marijuana (and other substances) and that the use, possession, and sale of marijuana in the workplace is prohibited.

Disclaimer: The content provided in this primer is for general informational purposes only. This document does not, and is not intended to, constitute legal advice and cannot and should not be relied upon by any person or entity as legal advice. Please contact the authors with any questions you may have. Please also note that submitting a comment or question does not create an attorney-client relationship between our firm and you.