RECENT LEGISLATIVE CHANGES AND THE IMPACT ON MAINE EMPLOYERS
October 21, 2015
As we all head into the busiest time of the year, we want to ensure that our employer-clients are aware of recent employment-related legislative changes. In particular, employers should pay particular attention to the increased penalties associated with violations of the Employment Leave for Victims of Violence (26 M.R.S.A. § 850); the new prohibition regarding the use of and access to the personal social media or e-mail accounts of applicants for employment and employees; and how the changes to Maine's concealed handgun law do (or do not) affect the workplace. These laws became effective on October 15th.
For your convenience, we have summarized these changes below. If you have any questions about these changes or how they impact your workplace, please feel free to reach out to any member of Drummond Woodsum's Employment and Labor Practice Group.
Employer Penalties for Violating the Victims of Violence Leave Law Significantly Strengthened
Employees who are victims of violence, including assaults, sexual assaults, stalking and other acts that would support a protection from abuse order under Maine law, have long had the right to request leave from work in order to prepare for and attend court proceedings, obtain medical treatment, or obtain services "necessary to remedy a crisis." Employees are also allowed to request leave if they are needed to assist a spouse, child or parent who is a victim of violence. See 26 M.R.S.A. § 850.
Under this law, employers are required to grant "reasonable and necessary leave," with or without pay to employees who request it (and provide appropriate documentation), unless one of the limited exceptions apply.
LD 921 significantly strengthens the penalties for employers who are found by the Maine Department of Labor (DOL) to have wrongfully denied leave or terminated an employee for exercising his or her rights to such leave. You can review the text of LD 921 here.
If notice of a violation of this law is provided to the employer and the DOL within six months, and the DOL determines that a violation did in fact occur, the following penalties will apply.
A fine of $1,000 will be assessed per violation to be paid to the State Treasurer; and liquidated damages of three times the total of the assessed fines must be paid to the employee. An employee who is found to have been wrongfully terminated for exercising his or her right to this leave may choose either the liquidated damages described above, or may choose to be reinstated with the employer, with back wages. Given that employees have up to six months to report any violation, such back wages could be substantial.
The victims of violence leave law applies to all employers in Maine. Given the magnitude of the new penalties for violating the law, employers should ensure that they are knowledgeable about what the law requires and follow it carefully.
Maine No Longer Requires Permit for Carrying of Concealed Handguns
As you have probably heard, Maine law has recently changed to allow a person who is 21 years or older and who is not otherwise prohibited by law from possessing a firearm to carry a concealed handgun without a permit. This includes possessing a loaded pistol or revolver while in a motor vehicle. Individuals who are 18 years or older and on active duty in the U.S. Armed Forces or the National Guard, or who have been honorably discharged from the Armed Forces or National Guard may also carry a concealed handgun without permit if otherwise qualified to do so. You can review the text of LD 652 here.
This change to the law, however, does not grant any more rights for individuals to carry a handgun in places in which they were previously prohibited from doing so, including: schools, courthouses, state parks, federal buildings and on private property when prohibited by the property owner. For private sector employers, this means that you can still prohibit guns on employer-owned premises, with one exception. Under Maine law, an employer may not prohibit an employee who has a valid permit to carry a concealed firearm from keeping a firearm in the employee's vehicle as long as the vehicle is locked and the firearm is not visible. See 26 M.R.S.A. § 600 (emphasis added). The issue of whether 26 M.R.S.A. § 600 will now apply to all employees allowed to carry handguns even if they do not have a permit was not addressed by LD 652, potentially creating a discrepancy as to how permit holders/non-permit holders may be treated under employer policy. As a practical matter, employers will want to consider how their policies will apply to non-permit holders who are now lawfully able to carry a concealed handgun.
New Law Protects Privacy of Employee Social Media Accounts
A new law was recently passed that governs employers' use of, and access to, employee and job applicant social media accounts. (It is part of LD921 that included the victims of violence leave law changes discussed above.) The law expressly prohibits employers from doing the following:
Requiring, coercing, and requesting an employee or applicant for employment to disclose his or her social media password or other means of accessing a social media site; Requiring, coercing, and requesting an employee or applicant for employment to access his or her social media account in the presence of the employer; Requiring, coercing, and requesting an employee or applicant for employment to alter settings on his or her social media account that would affect a third party's ability to view the contents of the account; and Requiring or coercing an employee or applicant to disclose any personal social media account information, and requiring or causing an employee or applicant for employment to add anyone to his or her list of contacts on a site.
Perhaps most significantly, the law bars employers from discharging, disciplining, or otherwise penalizing an employee, and from failing or refusing to hire an applicant (or threatening to do any of these things), for refusing to do any of the acts discussed in the above bullet points.
However, the law contains a few key exceptions to these prohibitions that employers should be aware of
First, and most importantly, the law does not prohibit or restrict employers from requiring employees to disclose personal social media account information that the employer reasonably believes to be relevant to an investigation of allegations of employee misconduct or a workplace-related violation of applicable laws, rules, or regulations, as long as requiring the disclosure is not otherwise prohibited by law and the information disclosed is accessed and used solely to the extent necessary for purposes of that investigation or a related proceeding. Second, the law does not apply to social media accounts opened at an employer's behest, such as an employer-required employee LinkedIn page, or accounts provided by an employer or intended to be used primarily on the employer's behalf. Third, employers may still maintain policies that govern the use of the employer's electronic equipment, including policies that require an employee to disclose his or her user name, password, or other information necessary to access employer-issued devices, software, or e-mail accounts. Finally, employers are not prohibited or restricted from complying with a duty to screen employees or applicants before hiring or to monitor or retain employee communications, but only in certain situations when the employer is required to do so under state or federal law, regulations, or rules, and to the extent that doing so is necessary to supervise communications of regulated financial institutions or insurance or securities licensees for banking-related, insurance-related, or securities-related business purposes. Text of LD 921 can be found here.