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A Maine Guide to
Employment Law
Second Edition
A publication of the
Bureau of Labor Education
University of Maine
Formatting, selection of illustrations, and cover design by Gabrielle Be rube.
A MAINE GUIDE
TO
EMPLOYMENT LAW
SECOND EDITION
Researched and Compiled by:
Gabrielle Berube and James Davitt, Esquire
Edited by:
William C. Murphy
Copyright 2008
University of Maine
Bureau of Labor Education
A MAINE GUIDE TO EMPLOYMENT LAW
ABOUT THIS GUIDE
IV Chapter I: EMPLOYMENT DISCRIMINATION 1 Federal and state laws prohibit employment discrimination on the basis of sex, age, color, religion, race, national origin or ancestry, sexual orientation, physical or mental disability. Chapter II: OCCUPATIONAL SAFETY AND HEALTH 17 State and federal laws exist which are designed to insure that employees are provided with safe and healthful workplaces or worksites. Chapter III: WORK-RELATED INJURIES AND DISEASES 30 WorkersÕ Compensation, Social Security disability benefits, and the right to sue are three possible paths of compensation available to an employee who is injured on or as a result of their job. Chapter IV: UNEMPLOYMENT COMPENSATION 49 This legislation provides cash benefits and services to individuals who become unemployed through no fault of their own.
Chapter V: ORGANIZING AND COLLECTIVE
BARGAINING 63
Many private-sector employees throughout the U.S. have the legal right to join labor organizations and bargain collectively through the
National Labor Relations Act.
Chapter VI: MAINE PUBLIC SECTOR COLLECTIVE
BARGAINING LAWS 86
State, county, municipal, university, community college, and judicial employees in Maine have the right to form labor organizations and bargain collectively. ii
Chapter VII: OTHER STATE AND FEDERAL
EMPLOYMENT LAWS 100 Includes the legal doctrine of employment-at-will, the employment rights of military reservists and veterans, statutes establishing standards on minimum wages and overtime, access to personnel files, lie detector tests, back wages and other earned benefits, the employment of youth, severance pay in case of plant closures, employer requirements to give the reasons for job termination or layoffs, unpaid family and medical leave, employment leave for victims of domestic violence, whistleblower protections, testing for alcohol and/or drug use, video cameras and monitoring of electronic communications in the workplace, and legal prohibitions regarding professional strikebreakers.
APPENDIX I: Summary of U.S. Employment Laws 123
A quick reference to important federal employment statutes and the agencies which enforce them.
APPENDIX II: NLRA/NLRB Jurisdiction 127
A brief summary of the monetary standards that must be met prior to the NLRB accepting jurisdiction of a claim under the
National Labor Relations Act.
ÒIn complying with the letter and spirit of applicable laws and pursuing its own goals of diversity, the University of Maine shall not discriminate on the grounds of race, color, religion, sex, sexual orientation, including transgender status or gender expression, national origin, citizenship status, age, disability, or veteran's status in employment, education, and all other areas of the University System. The University provides reasonable accommodations to qualified individuals with disabilities upon request. Questions and complaints about discrimination in any area of the University should be directed to the Director of Equal Opportunity, the University of Maine, 5754 North Stevens Hall, Room 101, Orono, ME
04469-5754, telephone (207) 581-1226,
TTY (207) 581-9484.Ó
iii
ABOUT THIS GUIDE
This second edition of A Maine Guide to Employment Law is both a continuation and evolution of five previous editions of A WorkersÕ Guide to Labor Law, first published by the Bureau of Labor Education in
1974. This present work, representing the collective efforts and
contributions of many of the BureauÕs staffÑpast and present, seeks to retain the readability and clarity that has been the hallmark of past editions. Our continuing objective is to provide important information on employee rights, protections, and responsibilities at the workplace or sit e, in easy-to-understand language. Approximately seven hundred thousand people make up MaineÕs civilian labor force. In any year, many will be injured on the job, some will be killed, and others will suffer disability because of occupational health and safety hazards. Some workers will become unemployed, a number will experience employment discrimination such as sexual or racial harassment, and others will need to take time off from their work to care for a family member with a serious illness. These issues, and many more, are addressed by specific state and federal statutes that deal with work and employee/employer relations. Known as employment law, this evolving body of law changes based on political, administrative, and judicial processes at both the state and federal levels of government. Because of this reality, all too often employees and employers are unaware of many legal rights, protections, and responsibilities established through this area of public policy. This publication has been reviewed for legal accuracy and clarity by attorneys specializing in employment law, government officials responsible for enforcing these statutes, and others knowledgeable about this legislation. However, it needs to be emphasized strongly that this book is only a Guide and it cannot in any way serve as a substitute for the competent legal advice which can be obtained from attorneys, government officials, and leaders of labor organizations. Source: Maine Dept. of Labor, Center for Workforce Research and Information, ÒLabor Market Digest,Ó May 2008, p. 2 iv We extend our deep appreciation and thanks to the following individuals whose review, consultation, and information were extremely helpful in the development of this work: James Case, Wayne Whitney, Jeffrey Young, Stephanie Jazlowiecki, Patrick Kelly, and Benjamin Grant of McTeague,
Higbee, Case, Cohen, Whitney & Toker, PA.
Karen Kemble, Office of Equal Opportunity, University of Maine;
John Gause, Maine Human Rights Commission;
William Coffin, Occupational Safety and Health Administration;
John Rohde, Maine WorkersÕ Compensation Board;
Rosemary Pye and Elizabeth Gemperline, National Labor
Relations Board;
Roger Putnam and Mark Ayotte, Maine Labor Relations Board; Lloyd Black, Maine Dept. of Labor, Bureau of Unemployment
Compensation;
John Hanson, Maine State Building & Construction Trades Council, and Director Emeritus, Bureau of Labor Education; Jane Crouch, Valerie Carter, and Gary McGrane, Bureau of Labor Education. All of these individuals provided constructive insights and comments on the various chapters. Jim Case and associates were particularly helpful in reviewing and providing important revisions and suggestions on all of the chapters. John Hanson deserves strong commendation for his contributions not only for this edition, but also for all of the previous editions of this Guide . Special appreciation also is extended to the BureauÕs administrative assistant, Kristina Cote, whose dedication and work on behalf of the Bureau always is exemplary, and to Ellen Campbell, Assistant to James Case, for her help in coordinating numerous e-mail transmissions in a very efficient fashion. Gabrielle Berube, James Davitt, and William Murphy v
A Note on Legal References:
In reading this Guide references are made to both federal and state cour ts, statutes, and agencies. Decisions of the United States Supreme Court ar e cited, for example, as 502 U.S. 743 (2004), indicating the volume [502 of the United States Reports, [U.S.] the page [743] at which the opinion begins, and the year of the opinion (2004). These opinions may be found at the Supreme Court web site, http://www.supremecourtus.gov, or through the Find Law web site, http//:www.findlaw.com. Decisions of the highest court in Maine, the Maine Supreme Judicial Court, are cited, for example, as 307 A.2d 38 (Me. 1997), indicating the volume, edition, and page of the Atlantic Reporter where the opinion is located. The parenthetical reference indicates that it is a decision of the highe st court in Maine and the year of the opinion. These decisions can be found on the Find Law web site or in the bound volumes in most libraries acros s Maine. Reference to statutes of the United States are noted, for example as 28 U.S.C. §1208, indicating the title number of the United States Code and the section where the particular statute is located. Likewise, Main e statutes are cited as 27 M.R.S.A. §567, indicating the volume and sec tion of the Maine Revised Statutes Annotated where the law may be found. Both the U.S. Code and the Maine Statutes are readily available on the internet or in most libraries across Maine. References to internet web s ites of federal and state agencies are noted throughout the Guide, either in the text or in the endnotes. 1
CHAPTER I
EMPLOYMENT DISCRIMINATION
What Is Employment Discrimination?
Discrimination in the workplace occurs when a person is treated differently than others in the employment relationship. State and federal anti- discrimination laws protect workers who have traditionally been excluded from employment opportunities. These laws prohibit discrimination on the basis of sex, race, color, religion, national origin or ancestry, mental or physical disability, sexual orientation, and age. For discrimination to be illegal, the unequal treatment must be based on the fact that the worker is a member of a protected group or class. Other types of discriminatory treatment, such as refusing to hire someone with tattoos, are not illegal, since people with tattoos are not a protected group under the law.
What Laws Protect Maine Workers?
Most Maine workers are covered by the Maine Human Rights Act (MHRA) and by a series of federal laws and presidential executive orders. The federal laws include the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, Executive Order 11246 of 1965 (which applies to federal government contractors and subcontractors), the Age Discrimination in Employment Act (ADEA) of 1967, the Rehabilitation Act of 1973 (Rehab Act), the Americans with Disabilities Act (ADA) of 1990, and the Older Workers Benefit Protection Act (OWBPA) of 1990. The MHRA is similar to the federal laws, but there are some important differences, as is discussed in more detail below.
Do These Laws Apply to All Employers?
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