Hiring

Advertising

What are the requirements relating to advertising open positions?

There are no state-specific requirements, except that hiring practices (including job advertisement) are subject to the Maine Human Rights Act (MHRA), which prohibits employment discrimination based on protected class.

Background checks

(a)Criminal records and arrests

Generally, employers in Maine may condition offers of employment on the satisfactory completion of a criminal history record check. For instance, criminal background checks are required before hiring school personnel. 20-A M.R.S.A. § 6103.

Maine has adopted the Fair Credit Reporting Act, which parallels the Federal Fair Credit Reporting Act. 10 M.R.S.A. § 1306 et seq. Maine has not clarified whether an employer checking references has to comply with the requirements of the Maine Act.

Public Law 404, which became effective October 18, 2021, prohibits employers from requesting criminal history record information on initial employee application forms or stating that a person with a criminal history may not apply or will not be considered for a position. An employer may inquire about an applicant’s criminal history record information during an interview or once the prospective employee has been determined otherwise qualified for the position, provided the applicant is given the opportunity to explain; and employers may otherwise ask for criminal histories on applications and limit eligibility based on them if federal or state law or regulation or rule require it or create a mandatory or presumptive disqualification.

(b)Medical history

Maine law prohibits employers from requiring an applicant for employment to pay for a medical examination that is required by the employer. 26 M.R.S.A. § 592. It is also unlawful for an employer to assess a fee to a prospective employee for filing an application for employment. 26 M.R.S.A. § 594.

(c)Drug screening

Tests of an employee’s or applicant’s urine, blood, or other bodily materials for drugs or alcohol are covered by the Maine Drug Testing Law, which makes all such tests unlawful unless the employer has a policy approved by the Maine Department of Labor. 26 M.R.S.A. § 681 et seq. However, "any employer subject to a federally mandated drug and alcohol testing program . . . and its employees, including independent contractors and employees of independent contractors who are working for or at the facilities of an employer who is subject to a federally mandated drug and alcohol testing program," are not subject to the Act. 26 M.R.S.A. § 681(8).

Employers with over 20 full-time employees must have an Employee Assistance Plan approved by the Office of Substance Abuse before implementing a testing program for employees. 26 M.R.S.A. § 683(1). Substance abuse tests for existing employees must be administered by a qualified testing laboratory; however, employers can administer their own screening tests to applicants if the employer’s facilities comply with the statutory requirements for testing laboratories. 26 M.R.S.A. § 683(6).

(d)Credit checks

Maine does not have any restriction on an employer’s ability to inquire into certain credit history questions during the hiring process, as long as all requirements under the federal and state Fair Credit Reporting Acts have been met (e.g., obtaining written authorization from the applicant; making certain required disclosures and notifications, etc.).

(e)Immigration status

The Maine Department of Labor does not issue work visas or conduct certification for employers seeking to bring foreign workers to the United States. MDOL, Hiring Foreign Workers. All employers must comply with federal law on this topic.

(f)Social media

Maine employers are prohibited from requesting or requiring that applicants or employees disclose their social media passwords, access their social media accounts in the employer’s presence, disclose any personal social media account information, add anyone to a list of contacts associated with a personal social media account, or alter settings to permit the employer view a personal social media account. 26 M.R.S.A. § 616. The statute similarly prohibits discrimination or retaliation based on an employee or applicant’s refusal to do any of these things. Id.

(g)Other

Maine law prohibits employers from inquiring about an applicant’s salary history. 5 M.R.S.A. § 4577. Maine law also prohibits employers from requesting social security numbers from prospective employees on job applications or during the application process, except in the context of an approved drug testing program or as necessary to conduct a pre-employment background check. 26 M.R.S.A. §598-A. There is no Maine law requiring Maine employers to keep social security numbers confidential.

Wage and hour

Pay

What are the main sources of wage and hour laws in your state?

The majority of wage and hour laws in Maine are contained in 26 M.R.S.A. Chapter 7. The most significant subchapters are:

What is the minimum hourly wage?

As of January 1, 2023, the minimum wage is $13.80 per hour. 26 M.R.S.A. § 664(1). Every year it increases by CPI-W as measured the previous August. If the federal minimum wage rate is increased in excess of the minimum wage in effect in Maine, the minimum wage in Maine is automatically increased to the same amount, effective on the same date as the increase in federal minimum wage, and then subject to any further increases thereafter required under Maine law. Id.

The minimum wage for tipped employees is 50 per cent of the minimum hourly wage in effect in Maine. 26 M.R.S.A. § 664(2). If an employee demonstrates that the actual tips received, combined with the direct wages, total less than the minimum hourly wage in effect in Maine, the employer must increase the wages to offset the difference. Id.

Public Law 288 became law without the Governor’s signature on June 20, 2021. The bill gradually raises the amount of tips an employee must receive to be considered a “service employee” from $30 per month to $175 per month. The increases began as of January 1, 2022, reaching $175 on January 1, 2023. Thereafter the amount will increase annually at the same rate as a subset of the Consumer Price Index.

What are the rules applicable to final pay and deductions from wages?

Under Maine law, every employee leaving employment must be paid in full no later than the next payday. 26 M.R.S.A. § 626. This law applies whether or not the employee leaves employment voluntarily. Id. Whenever the terms of employment include provisions for paid vacations, earned but unused, vacation pay on cessation of employment has the same status as wages earned. 26 M.R.S.A. § 626.

The employer may withhold from a final paycheck certain "overcompensation" and any loan or advance against future earnings or wages if evidenced by a statement in writing signed by the employee. 26 M.R.S.A. § 626. An employer cannot deduct wages when an employee has damaged or lost the employer’s property. Id. Nor can the employer withhold payment because the employee allegedly owes the employer money. Id.

Employers cannot require a person, as a condition of securing or retaining employment, to work without monetary compensation or have any agreement that a part of the employee’s compensation is to be returned to the person for any reason other than the payment of a loan, debt or advance, for the payment of any merchandise purchased from the employer, for sick or accident benefits, life or group insurance premiums (that an employee has agreed to pay), or for rent, light or water expense of a company-owned house or building. 26 M.R.S.A. § 629. A “debt” is defined to mean a benefit to the employee, and does not include items incurred by the employee in the course of the employee’s work or dealing with customers on the employer’s behalf, such as cash shortages, inventory shortages, dishonored checks, dishonored credit cards, damages to the employer’s property in any form or any merchandise purchased by a customer. Id. The term “debt” also does not include uniforms, personal protective equipment or other tools of the trade that are considered primarily for the benefit or convenience of the employer. Id. “Uniforms” is defined to mean shirts or other items of clothing bearing the company name or logo. Id.

Hours and overtime

What are the requirements for meal and rest breaks?

In the absence of a collective bargaining agreement or other written employer-employee agreement providing otherwise, an employee may be employed or permitted to work for no more than six consecutive hours at one time unless the employee is given the opportunity to take at least 30 consecutive minutes of rest time, except in cases of emergency in which there is danger to property, life, public safety or public health. This rest time may be used by the employee as unpaid mealtime, but only if the employee is completely relieved of duty.  26 M.R.S.A. § 601.

The above requirement does not apply to any place of employment where: (a) fewer than three employees are on duty at any one time; and (b) the nature of the work done by the employee allows the employee frequent paid breaks of a shorter duration during the employee's work day. Id.

What are the maximum hour rules?

In Maine, employers are prohibited from requiring employees to work more than 80 hours of overtime in any consecutive two-week period, although there are several exceptions to this requirement. 26 M.R.S.A. § 603(2).

How should overtime be calculated?

Under the Maine overtime law, an employer cannot require an employee to work more than 40 hours in a week unless the employee is paid one-and-a-half times his or her regular hourly rate for all hours worked over 40 in one workweek. 26 M.R.S.A. § 664(3).

Compensatory time off in another workweek, even if awarded at time and one half, does not relieve the employer in Maine from overtime obligations for covered employees for the week in which the employee works more than 40 hours. 26 M.R.S.A. § 664. Furthermore, employers are prohibited from requiring employees to work more than 80 hours of overtime in any consecutive two-week period (with exceptions). 26 M.R.S.A. § 603(2).

What exemptions are there from overtime?

Maine law creates exemptions from minimum wage and overtime requirements, as follows:

  • individuals employed in a bona fide executive, administrative or professional capacity paid on a salary basis;
  • employees whose earnings are derived in whole or in part from sales commissions, and whose hours and places of employment are not substantially controlled by the employer;
  • individuals employed as taxicab drivers;
  • counselors, junior counselors, and certain other employees at summer camps for boys and girls;
  • individuals employed in certain aspects of the fishing and marine products industry;
  • switchboard operators in a public telephone exchange with fewer than 750 stations;
  • home workers engaged in certain types of work who are not subject to any supervision or control;
  • members of the family of the employer who reside with and are dependent on the employer;
  • individuals employed in agriculture, as defined in the Maine Employment Security Law and the Federal Unemployment Insurance Tax Law, except when that individual performs services for or on a farm with over 300,000 laying birds; and
  • sentenced prisoners, other than those employed by a private employer, participating in a work-release program, in a program established under a certification issued by the United States Department of Justice, or employed while in certain community confinement programs. 26 M.R.S.A. § 663(3).

 

Maine law also creates exemptions from overtime requirements only as follows:

  • automobile mechanics, automobile parts clerks, automobile service writers and automobile salesmen;
  • mariners;
  • public employees, except those employed by the executive or judicial branch of the State;
  • the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment, or distribution of (1) agricultural produce, (2) meat and fish products, and (3) perishable foods;
  • a driver or driver’s helper who is subject to Section 31502 of Title 49 of the United States Code, if the driver or driver’s helper is paid overtime pay “reasonably equivalent” to that required by this section (26 M.R.S.A. § 664(3)) for all hours worked in excess of 40 per week;
  • a driver or driver’s helper who is not paid hourly and is subject to Section 31502 of Title 49 of the United States Code, who is governed by the applicable provisions of federal law with respect to payment of overtime;
  • a driver or driver’s helper who is represented, for purposes of collective bargaining, by a labor organization certified by the National Labor Relations Board, which is party to a collective bargaining agreement that dictates the hourly rate of pay to be paid a driver or driver’s helper; and
  • a driver or driver’s helper who is employed by an entity that is party to a contract with the federal government, or its agency, that dictates the minimum hourly rate of pay to be paid to a driver or driver’s helper. 26 M.R.S.A. § 664(3).
Record keeping

What payroll and payment records must be maintained?

Maine employers are required to keep daily records of time worked by non-exempt employees, as well as records showing the date and amount paid to each employee. 26 M.R.S.A. § 622.