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Pre-employment/Promotion

Hiring

Under federal law, an employer doesn't have to hire, or promote, the most qualified applicant. But the employer cannot base decisions on personal characteristics that are not job-related. These characteristics often include:

• Age
• Race
• Sex
• Religion
• National origin
• Disability

An interviewer isn't allowed to ask questions relating to these characteristics. Interview questions that aren't allowed include:

• Are you married? Are you planning to get married?
• Do you have children? Are you planning to have children?
• Where were you born?
• What's your sexual orientation?
• Have you ever been arrested?

An interviewer can, however, ask about a personal characteristic if it could hinder your ability to fulfill the job's requirements. Some examples might be:

• Have you ever been convicted of a crime?
• Can you prove that you are eligible to work in the US?
• Can you do this job with, or without, reasonable accommodations?

References

A previous employer is free to provide any non-confidential information about a previous employee, as long as it's true and isn't provided to maliciously harm the employee. An employer, who provides false information that disparages the employee, may be liable for defamation. In order to avoid potential liability, many employers often refuse to comment on a past employee's job performance and confirm only dates of hire and separation, plus wage or salary information.

Employment

At Will

In the majority of states, employees not working under an employment contract are deemed to be "at will." At-will employees may be terminated for any reason, so long as it's not illegal. Generally, employees who work under an employment contract can only be terminated for reasons specified in the contract.

Under Maine law, an at-will employee may be terminated for any reason not specifically prohibited by law. In most instances, you are an at-will employee unless you are covered by a collective bargaining agreement or other contract that limits termination. The only cases where an employer would be breaking the law by firing you are:

• If your employer fires your for an unlawful reason
• If you have a written contract with your employer and the contract clearly states that the contract cannot end unless certain conditions are met.

Employee Handbooks

While an employer is not required by law to have an employee handbook, in most cases, it is recommended. An employee handbook provides a centralized, complete and certain record of the employer's policies and procedures. In Maine, if your employer has an employee handbook or other written policies that restrict the employer as to when or how you can be fired but the policies may be interpreted in different ways, you may be fired without cause. An employee handbook also provides more convenient access by employees and managers.

At a minimum, an employee handbook should include:

• A statement regarding the at-will employment relationship
• An equal employment opportunity statement
• A policy regarding sexual and other types of harassment in the workplace
• Internet access, e-mail, and voice mail policies
• The Family Medical Leave Act

The laws regarding an employer's duties and responsibilities arising under an employee handbook are complex, and a licensed attorney should be contacted to review individual circumstances.

Workplace Safet

Federal and state laws require that most employers furnish a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. In most instances, an employee may anonymously complain about an unsafe work environment and be protected against employer reprisals.

All employers have to comply with the Occupational Safety & Health Administration (OSHA) safety and health regulations, but OSHA regulations are enforced by different agencies depending on whether your workplace is a private sector or a public sector workplace. Private sector workplaces fall under the jurisdiction of the US Department of Labor. Maine public sector workplaces fall under the jurisdiction of the Maine Department of Labor. Public sector workplaces include state, county and municipal workplaces.

The Public Sector Enforcement Program of the Maine Department of Labor, Bureau of Labor Standards enforces occupational safety and health regulations in public sector workplaces. The Maine Department of Labor (MDOL) promotes a healthy, safe and fair workplace through consultation, inspections and enforcements. SafetyWorks! Is an outreach program designed to reduce job-related injuries, illnesses and deaths.

Workplace Injury

Workers' compensation laws are designed to compensate employees who have been injured or killed in work related accidents according to a fixed monetary scheme, without having to resort to litigation. Dependents of a fatally injured employee may also be entitled to benefits. Employers may be protected by limits placed on the amount of an employee's recovery.

Employers in Maine are required to provide workers' compensation insurance for their employees. The benefits include payment of medical services and lost wages. Workers' compensation is the exclusive remedy for the coverage of work related injuries by the employer. The following disability benefits are provided:

• Temporary total disability (TTD) benefits are paid in an amount determined by a percentage of your wage subject to a weekly maximum amount with payments continuing for the duration of your disability
• Permanent partial disability (PPD) benefits are paid in an amount determined by a percentage of your wage subject to a weekly maximum amount with payments either capped at 364 weeks or continuing for the duration of your disability
• Permanent total disability (PTD) benefits are paid in an amount determined by a percentage of your wage subject to a weekly maximum amount with payments continuing for the duration of your disability

Sexual Harassment

An employer may be liable to an employee for instances of "sexual harassment," which can include unwelcome sexual advances, conduct or other physical or verbal acts of a sexual nature, which occur in the workplace. The following conduct is generally considered sexual harassment:

• Direct sexual conduct - an employer makes sexual advances or statements
• "Quid pro quo" - job-related benefits are offered in exchange for sexual conduct
• Hostile work environment - an employer maintains an overly sexual work environment

Because the laws determining what conduct, or pattern of conduct, constitutes actionable sexual harassment are complex, a licensed attorney should be contacted to review individual circumstances.

Discrimination and Wrongful Termination

Employers are not allowed to terminate or discriminate against employees for the following reasons:

• Age
• Race
• Sex
• Religion
• National origin
• Disability
• Pregnancy

It's illegal for an employer to consider these characteristics with regard to:

• Promotions
• Job assignments
• Termination
• Wages

And it's illegal for an employer to terminate an employee:

• For refusing to break a law
• In retaliation for filing a discrimination or safety claim
• For taking leave under the Family and Medical Leave Act
• Without following its own stated procedure or policy
• For reasons not contained in the employment contract, if one exists

Family and Medical Leave

The Family Medical Leave Act (FMLA) provides 12 weeks of unpaid leave to qualifying employees who need time off from work to care for their own or an immediate family member's serious health condition. This allows for continued medical benefits and restoration of their original position upon return. An employee is eligible when they:

• Have worked for the same employer for the previous 12 months
• Have worked at least 1,250 hours in the previous 12 months
• Are employed by a "covered" employer, which is:
  • All federal, state, and local governments and agencies
  • Private employers with 50 or more employees for 20 weeks in the calendar year and engaged in interstate commerce

An injury or illness qualifies as a "serious health condition" if it either requires an overnight stay in a medical facility or constitutes "continuing treatment" by a health-care provider. Continuing treatment requires either the employee's incapacity for more than three calendar days and at least two subsequent treatments, or treatment by a health-care provider that results in continuing supervised treatment.

Maine employers of 15 or more employees are covered by the state family and medical leave law. Covered employers are required to provide eligible employees with unpaid family medical leave for up to ten consecutive workweeks in any two year period. Leave may be taken for the birth of a child, the adoption of a child who is 16 years old or younger or for the serious illness of the employee, a child, parent or spouse of the employee.

Post-employment

Unemployment Benefits

Unemployment benefits are based on combinations of federal and state statutes. Unemployment compensation programs are administered by the state and normally provide temporary monetary compensation to workers who have been terminated without cause, through no fault of their own. Employees who voluntarily terminate their employment for "good cause" may also be entitled to benefits.

To be eligible for unemployment compensation benefits you must have adequate wages in your base period. Your base period is the first four of the last five completed calendar quarters immediately preceding the first day of your benefit year. Your benefit year is a period of 52 consecutive weeks. It begins on the Sunday of the week in which your application is filed. Your claim is good for one year. You must have earned at least $1,162.66 in two quarters and a total of at least $3,487.98 in the base period.

The amount you earn determines the amount of unemployment benefits you can collect. Your weekly benefit amount is determined by dividing the average of the wages in the two highest quarters of your base period by 22. The maximum weekly benefit you can earn cannot exceed $302 but cannot be less than $52. The maximum amount of time that you may receive benefits in a benefit year is 26 weeks, but not everyone qualifies for all 26 weeks.

COBRA

Under the Consolidated Omnibus Budget Reconciliation Act (COBRA), which is a federal law, employees may be allowed to continue their health insurance benefits, at the employee's expense, for up to 18 months after either voluntary or involuntary termination, if the employer has 20 or more employees.

To qualify for COBRA continuation coverage, an employee must have a qualifying event that causes the employee to lose group health coverage. The following are qualifying events:

For employees
• Voluntary or involuntary termination of employment for reasons other than gross misconduct
• Reduction in numbers of hours worked
For spouses
• Loss of coverage by the employee because of one of the qualifying events listed above
• Covered employee becomes eligible for Medicare
• Divorce or legal separation of the covered employee
• Death of the covered employee
For dependent children
• Loss of coverage because of any of the qualifying events listed for spouses
• Loss of status as a dependent child under the plan rules

If you are not eligible for COBRA because your employer does not have 20 employees, you may still be able to continue your coverage for up to 12 months under Maine law. If you terminate employment due to a temporary lay-off or due to an injury for which you claim workers' compensation, you can continue health insurance coverage under your employer's plan for yourself and any covered dependants. You must elect coverage within 31 days following termination of employment. As with COBRA, you must pay 102% of the full premium (full premium plus a 2% administrative fee).

Related Web Links:

- Maine Public Sector Workplace Safety & Health
- State of Maine Workers' Compensation Board
- Maine Unemployment Insurance Benefits
- US Department of Labor - Maine resources
- US Department of Labor OSHA
- Employment Law for Employees message boards for more help