August 2021 Maine HR Legal Updates

Maine Limits Pre-Offer Criminal History Checks with Fair Chance Act

Update Applicable to:
All employers in Maine.

What happened?
On July 6, 2021, Governor Mills signed “An Act Relating to Fair Chance in Employment” (HB 1167) into law.

What are the details?
Effective October 18, 2021, the law will place restrictions on employers requesting an applicant’s criminal history on initial employment applications or certain situations being reached.

The employer is prohibited from requesting or asking about an applicant’s criminal history on applications. Employers are also prohibited from stating on applications or in advertisements that a person with a criminal history cannot apply or will not be considered for a position. Exceptions to this rule are where federal or state law, regulation, or rule create a mandatory disqualification based on a conviction or the employer is required under federal or state law, regulation, or rule to conduct a criminal background check.

The employer may ask about the applicant’s criminal history in an interview or once they have been determined as qualified for the position. If an employer does inquire about an applicant’s criminal history or it is revealed during the process, the employee must be given the opportunity to explain the information and the circumstances regarding any convictions, including post-conviction rehabilitation.

There are exceptions to the law’s prohibition where an employer may ask about criminal convictions on the employment application if:

  • The position is one in which any federal or state law or regulation or rule creates a mandatory or presumptive disqualification based on a conviction for one or more types of criminal offenses, and the questions on the initial employment application form are limited to the types of criminal offenses creating the disqualification.
  • The employer is subject to an obligation imposed by any federal or state law or regulation or rule not to employ a person, in either one or more positions, who has been convicted of one or more types of criminal offenses and the questions on the initial employment application form are limited to the types of criminal offenses creating the obligation.
  • The employer is required by federal or state law or regulation or rule to conduct a criminal history record check for the position for which the prospective employee is applying.
  • The employer participates in a program that encourages the employment of persons with criminal convictions.

The law can be read here.

An article on the Law is found here.

What do employers need to do?
Employers should review their hiring processes and documents to make any applicable changes to stay in compliance with the new law and not inquire on criminal history prior to when the guidance allows.

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Maine Expands State’s FMLA to Include Care for Grandchildren

Update Applicable to:
Employers in Maine with 15 or more employees.

What happened?
On June 14, 2021, Governor Mills signed L.D. 61 into law.

What are the details?
The law, effective September 16, 2021 (90 days after the end of the session on June 19, 2021) amends Maine’s Family Medical Leave Act (FMLA) to include care for their grandchild or their domestic partner’s grandchild.

The law has been updated to read “A child, domestic partner’s child, grandchild, domestic partner’s grandchild, parent, domestic partner, sibling or spouse with a serious health condition”.

The law can be read here.

An article on the law is found here.

What do employers need to do?
Employers should review their leave policies and make any applicable updates to stay in compliance with providing FMLA to their employees.

November 2020 Maine HR Legal Updates

REMINDER: Upcoming Maine Earned Paid Leave Effective January 1, 2021

What happened?
The Maine Department of Labor (DOL) has issued the final rules for the mandatory paid leave created when Governor Mills signed the Act Authorizing Earned Employee Leave in May 2019.

What are the details?
Private employers with more than 10 employees working in Maine in the usual and regular course of business for more than 120 days in the calendar year. A covered employee can include full-time, part-time, and per-diem employees. Domestic workers making over $1,000 a year will also qualify for this paid leave.

The law will not cover seasonal employees, independent contractors, and employees working fewer than 120 days in any calendar year. Employees covered by a collective bargaining agreement during the period between January 1, 2021 and the expiration date of the agreement are excluded.

Employees will begin accruing paid leave upon hire. They will not be able to use the paid leave until 120 days after their employment date. Employers may frontload the 40 hours required at the beginning of the plan year or on the employee’s anniversary date as long as the employee receives no less earned paid leave than he or she would have earned under an accrual method. If an employer frontloads hours to an employee’s balance and the employee quits, the employer may deduct the number of hours they would not have earned on an accrual plan from the employee’s balance. Otherwise the employees will accrue at a rate of one hour of paid leave for every 40 hours worked, up to a maximum of 40 hours a year. Employees may carryover their balance from one year to the next, but employers may cap this amount to 40 hours. Employers only need to pay out existing balances of paid leave if the company has a policy setting a precedent of doing that for other accrued leaves. If not, the company can choose not to. If an employee is no longer employed with an employer who does not cash out their balance and returns to work for that employer within one year, the employer must reinstate their previous balance.

Paid leave will be paid at the employee’s base pay rate. Calculating the base rate of pay requires dividing total earnings for the week prior to the leave by the number of hours worked. Note that this has the potential for employees to take leave at an increased rate should they receive a bonus or commission in the week prior to their leave. Employees working in the service industry that typically receives tips will have the state’s minimum wage be considered their base pay rate.

Employers may require employees to provide up to four weeks’ notice of their intent to utilize their earned paid leave. In emergency situations, employees must give notice in a “reasonable” amount of time. Employees may use paid leave in increments as small as one hour. Employers may allow smaller units of time if they wish. In instances of leave being used for more than three days for sick time, employers may require a doctor’s note or other documentation.

The required workplace poster can be found here.

The Act’s full text can be found here.

An FAQ provided by Maine’s DOL can be found here.

What do employers need to do?
Maine employers should begin adjusting their workplace policies to accommodate the new leave requirement. Training should be prepared for administrative staff and management to know how to handle and administer this paid leave.

September 2020 Maine HR Legal Updates

Maine DOL Issues Final Mandatory Paid Leave Rules

What happened?
The Maine DOL has issued the final rules for the mandatory paid leave created when Governor Mills signed the Act Authorizing Earned Employee Leave in May 2019.  

What are the details?
Maine’s paid leave program will be the first statewide in the country that allows the use of paid leave for any reason at all.

Private employers with more than 10 employees working in Maine in the usual and regular course of business for more than 120 days in the calendar year. A covered employee can include full-time, part-time, and per-diem employees. Domestic workers making over $1,000 a year will also qualify for this paid leave.

The law will not cover seasonal employees, independent contractors, and employees working fewer than 120 days in any calendar year.  Employees covered by a collective bargaining agreement during the period between January 1, 2021 and the expiration date of the agreement are excluded.

Employees will begin accruing paid leave upon hire. They will not be able to use the paid leave until 120 days after their employment date. Employers may frontload the 40 hours required at the beginning of the plan year or on the employee’s anniversary date as long as the employee receives no less earned paid leave than he or she would have earned under an accrual method. If an employer frontloads hours to an employee’s balance and the employee quits, the employer may deduct the number of hours they would not have earned on an accrual plan from the employee’s balance. Otherwise the employees will accrue at a rate of one hour of paid leave for every 40 hours worked, up to a maximum of 40 hours a year. Employees may carryover their balance from one year to the next, but employers may cap this amount to 40 hours. Employers only need to pay out existing balances of paid leave if the company has a policy setting a precedent of doing that for other accrued leaves. If not, the company can choose not to. If an employee is no longer employed with an employer who does not cash out their balance and returns to work for that employer within one year, the employer must reinstate their previous balance.

Paid leave will be paid at the employee’s base pay rate. Calculating the base rate of pay requires dividing total earnings for the week prior to the leave by the number of hours worked. Note that this has the potential for employees to take leave at an increased rate should they receive a bonus or commission in the week prior to their leave. Employees working in the service industry that typically receives tips will have the state’s minimum wage be considered their base pay rate.

Employers may require employees to provide up to four weeks’ notice of their intent to utilize their earned paid leave. In emergency situations, employees must give notice in a “reasonable” amount of time. Employees may use paid leave in increments as small as one hour. Employers may allow smaller units of time if they wish. In instances of leave being used for more than three days for sick time, employers may require a doctor’s note or other documentation.

The required workplace poster can be found here.

The Act’s full text can be found here.

An FAQ provided by Maine’s DOL can be found here.

What do employers need to do?
Maine employers should begin adjusting their workplace policies to accommodate the new leave requirement. Training should be prepared for administrative staff and management to know how to handle and administer this paid leave.

May 2020 Maine Legal HR Updates

Subminimum Wage

What happened?
The governor signed into law that employers may no longer pay less than minimum wage to employees with a mental or physical disability.

What are the details?
This law goes into effect on June 16, 2020. Special certificates to underpay employees will no longer be available.

What do employers need to do?
Comply with the above.

Resources
https://news.bloombergtax.com/payroll/maine-eliminates-subminimum-wage-for-disabled-workers

January 2020 Maine HR Legal Updates

Paid Leave to Use for “Any Reason”

What happened?
Maine Governor Janet Mills has signed into law “An Act Authorizing Earned Employee Leave,” the first law in the nation to allow employees to use mandated paid leave for any reason. The new law, signed on May 28, 2019 will take effect on January 1, 2021.

What are the details?

  • The law requires Maine employers with at least 10 employees who work more than 120 hours in a calendar year, other than seasonal workers, to provide one hour of paid leave for every 40 hours an employee works.
  • An employee can earn up to 40 hours of paid leave annually.
  • The law does not apply to an employee subject to a collective bargaining agreement during the period between January 1, 2021, and the expiration of the agreement.
  • Employees will begin accruing earned pay leave at the start of employment and are eligible to use the accrued paid leave after 120 days of employment.
  • Employees are required to provide “reasonable notice” of the intent to take leave, absent an emergency or other sudden necessity.
  • However, the law does not define what constitutes reasonable notice, although it provides that “use of leave must be scheduled to prevent undue hardship on the employer.”
  • During the paid leave, an employee must be paid the same base rate of pay earned prior to taking leave and receive the same benefits as provided to other types of paid leave pursuant to the employer’s “established” policies.

The taking of paid leave may not result in the loss of any accrued employee benefits. Employers who violate the law will be subject to penalties of up to $1,000 per violation.

What do employers need to do?

While employers await the pending rules, they should be prepared to update their paid leave policies and handbooks to comply with the new law.

Article: https://www.jacksonlewis.com/publication/new-maine-law-requires-employers-provide-employees-paid-leave-use-any-reason