CONTENTS
Many thanks to Portland-based lawyer
Donald Fontaine for his help with updating this information.
This is a very general summary of your rights as an unemployed worker in
Maine. It covers basic questions you might have after losing your job. We
also explain how the unemployment benefit system works.
You may be unemployed because you were laid off or fired, or you quit.
The facts of your particular situation will affect your rights under the
law.
If you belong to a union, check with them about
additional rights you have under your union contract. Or, even without
a union, if you have a written contract, employment handbook, or other written
employment policies, those may give you more rights than the ones explained
here.
Finally, if you think that you have been treated illegally or wrongfully
denied unemployment benefits, try to get legal advice.
| Termination of Employment |
Can my boss fire me without a good reason?
In most cases, yes. Maine employers and employees work under a centuries-old
system called "employment-at-will." This means that if you are
hired for an indefinite length of time, you are free to leave the job whenever
you want. The employer is equally free to terminate you without cause.
Can I be fired without notice?
The general rule is yes. However, in certain situations you may be
required to give a week's notice before you leave, and the employer must
give you a week's notice before he lets you go.
What if my employer and I have an employment contract?
If you can prove that you and your boss entered into an employment agreement
that says you can be discharged only for specific reasons - for example,
"for good cause" - this contract may be binding on the employer.
What if my work place is unionized?
Where a labor contract exists between your employer and your union, you
probably have a grievance process and cannot be discharged without good
cause. Even if you are not a union member, you may still have rights to
union representation if you are going to be fired.
Did my employer discriminate against me when I was fired?
Discrimination involves singling you out because of the group or class you belong to.
Illegal discrimination is unequal
treatment because of your:
- race or color
- sex
- sexual orientation
- ancestry or national origin
- religion
- age
- mental or physical disability.
For example, if you were fired because your boss wanted to hire his nephew
in your place, this is not illegal discrimination. However, if you
were fired because of your age, you may have a valid illegal discrimination
charge.
What protection do I have if I lost my job because of illegal discrimination?
The Maine Human Rights Act specifically protects workers from discriminatory
treatment.
If you have lost your job because of illegal discrimination, you may file
a complaint with the Maine
Human Rights Commission within 6 months
of your termination.
|
Maine Human Rights Commission
51 State House Station
Augusta, Maine 04333-0051
Phone: 624-6050
TTY: 1-888-577-6690
FAX: 624-6063
Use online intake form
|
There is no fee for this service.
After you file a complaint, the agency will investigate. The Commission may
interview you and your employer to determine the facts of the case. It can also
subpoena witnesses. If you and your employer cannot resolve the matter,
the Commission will issue a statement as to whether there are "reasonable
ground to believe" unlawful discrimination occurred. This entire process
can take several months.
Next, the Commission or your own lawyer can take the case to court. A court settlement
might include reinstatement, back pay, money, and attorney's fees.
For more details
about the Commission process, go to their Q and A:
After a
Charge Has Been Filed.
| Other Illegal Grounds for Termination |
My employer fired me because I reported unsafe or illegal conditions at my workplace.
Is this legal?
No. A state law called the "Whistleblowers' Protection Act"
protects you. It says that you cannot be fired (or discriminated against) because you made a
good-faith report of work place violations. This protection covers a worker who "blows the whistle"
on sub-standard care in a health care setting. It also covers employees who cooperate with an official
investigation or court case against the employer. It protects you even if you reported the problem
only to your employer, and then got fired.
However, to be covered by this law you must have first
reported the problem to your supervisor and allowed a reasonable time
for correction before making your complaint to state or local officials.
The only exception is if you have specific reason to believe
that reporting the violation to your employer will not result in prompt attention to the
problem.
Can I be fired for refusing to do a job that is illegal or too dangerous?
No. However, in the case of danger, the threat to you must have been very serious.
And you must have asked your employer first to coorect the situation.
Where can I go for help?
Within 6 months of firing (or other discriminatory act), file a complaint with:
|
Maine Human Rights Commission
51 State House Station
Augusta, Maine 04333-0051
Phone: 624-6050
TTY: 1-888-577-6690
FAX: 624-6063
Use online intake form
|
In addition ot the above-described state law, several federal laws cover a variety of employment
situations. If you were discharged over a safety issue, contact your nearest U.S. Department of Labor
OSHA
office:
|
Bangor District Office
202 Harlow Street, Room 240
Bangor, Maine 04401
(207) 941-8177
Fax: 207-941-8179
|
|
Augusta Area Office
E.S. Muskie Federal Building
40 Wetern Ave., Room G-26
Augusta, Maine 04330
(207) 626-9160
Fax: (207) 622-8213
|
Are there any other reasons why my termination might have been
illegal?
Your employer may not fire you solely because:
- you complained about not getting overtime pay or minimum wages
- you reported a workers compensation injury
- the state is taking money out of your paycheck to pay child support
- the state is taking money out of your paycheck to collect an overpayment
of public benefits
- you were called for jury duty
Also, some public benefit programs, like General Assistance, provide more protections.
Your
employer cannot penalize you because the state
or town asked him for information about you, to determine whether you qualify for help.
If you are injured on the job and file a Worker's Compensation claim,
you can't be fired in retaliation.
| Your Rights After You Have Been Discharged |
My boss fired me without telling me why. How can I find out why I lost
my job?
You have a legal right to this information. Ask your employer in
writing to tell you his reason for discharging you.
Get sample form letter.
If your employer doesn't answer within 15 days, he may be liable for up
to $500. If you have to bring a court action, he can also be ordered
to pay your attorney's fees, if you win.
I am afraid my personnel file contains damaging information. How can
I find out?
Write to your employer and
request that you or someone representing you be allowed to see and copy
your file. Get sample form letter.
If the employer does not give you access to your file within 10 days of
receiving your request, he can be fined $25.00 a day for each day he refuses
(up to a fine of $500.00). You can go to court to enforce this right. The court can
also order that your employer pay your attorney's
fees, if you win.
I was fired a month ago and still haven't gotten my final paycheck.
Are they allowed to do this?
Once you have left work, ask to get your final paycheck. Then your
employer must give it to you on the next regular pay day or within 2 weeks,
whichever is earlier. This check should include any vacation pay
your employer owes you. If wages are wrongfully withheld, you can sue for
three times the amount withheld, plus
attorney's fees.
My boss claims that I'm not getting my last check because I owe him money.
Is this legal?
No. Your employer cannot withhold
wages from you to settle a debt he claims you owe.
Exception: If he accidentally overpaid you wages at an earlier time, and
you quit voluntarily, he can withhold that overpayment from your last paycheck.
I worked for my employer for two years. Am I entitled to severance pay?
By Maine statute, you are not entitled to severance pay unless:
- and you worked there for three years or longer and
- the company (or part of the company) has shut down or moved at least 100 miles away and
- the company employed 100 people or more sometime during the year before
it closed
If you have a contract, find out if it gives you more severance pay rights.
| Your Rights to Your Pension Fund and Insurance Benefits |
Do I have any right to money I paid into a pension fund?
Yes. You are vested 100% in all contributions you have made to a pension
fund maintained by your employer. You also have the right to the investment
return on that money. Ask your employer for a copy of the Summary Plan Description
for details.
Am I entitled to receive a distribution of my Social Security (FICA)
contributions?
Not until you retire at age 62 or older or become totally disabled. Get more information
from the federal Social Security Administration.
Do I have a right to receive any employer contributions to a pension
or profit sharing plan?
Yes, but only if you are "vested" in that benefit. Private pension
plans are controlled under the federal Employment Retirement Security Act
of 1974 (ERISA). This law requires that you have a non-forfeitable right
to all or a portion of your benefit after a certain number of years of service
with the employer.
Generally, a plan may have either a "cliff" vesting schedule
or a "graded" one. "Cliff" vesting is much more
common. With "cliff" vesting, you will not be vested at
all until you have completed 5 years of service. At that point, you
are totally vested. If your plan has "graded" vesting, you must
be partially vested after 3 years and 100% vested after 7 years.
These rules may vary depending upon when you left employment, whether the
plan is run by the government, such as a city or state, and how many hours
you worked each year.
Do I have a right to receive an immediate distribution of my vested
benefit under a pension plan?
Not in all cases. First find out if you are in a "defined contribution"
or a "defined benefit" plan.
In a defined contribution plan, you have your own account in which
you may be fully or partially vested. Examples of defined contribution plans
are:
- profit sharing plans
- 401(k) plans
- money purchase pension plan
- target benefit plans
- employee stock ownership plans
Most often, defined contribution plans distribute vested account balances
to participants within a year of termination, but not in all cases.
In a defined benefit plan, you will generally not get a distribution
until you reach normal retirement age (often age 65), or early retirement
age (often age 55). Again, you should ask your employer for a copy of the
Summary Plan Description for details.
What rights do I have if I think I am entitled to a vested benefit
and a distribution, but my employer denies my application for benefits?
Under ERISA, you have the right to appeal any denial of benefits to the
Plan Administrator. This is often your employer or a pension plan
committee set up by your employer. Generally, you have 60 days to appeal
a denial of benefits. Then the Plan Administrator must respond to
your appeal within 60 days. You must be given a complete written explanation
of the reasons for the denial and a citation to the plan document. If your
appeal to the Plan Administrator fails, you have the right to appeal to
the federal court. Your rights are described in detail in the Summary Plan
Description.
May I continue my health insurance even after I terminate
employment?
If your employer had 20 or more employees on a typical business
day and maintained a group health plan, you may be entitled to continue
your health insurance. This is called "COBRA Continuation Coverage."
This coverage is also available to your spouse and your dependents. Ask
your employer when you leave if COBRA coverage will be offered. Write a
letter to the employer indicating your possible interest and keep a copy
of that letter.
How will I know if I'm eligible and when must I elect
this coverage?
Your employer is required to notify the Health Plan Administrator
within 30 days of the date your job ended. Then the Administrator
has another 14 days to notify you of your COBRA rights. You then have 60
days - from the date you lost coverage, or from the date the Administrator
sent you the notice, whichever is later - to elect COBRA coverage. If you
elect coverage, it will be effective back to the date your insurance ended.
Your employer and health plan provider can be subject to substantial fines for failing to
provide COBRA coverage. Also, your employer could be found liable in a court
case if he fails to offer COBRA coverage in violation of the law and you
have medical needs. Get legal advice.
How long will this continuation last and how much
will it cost me?
The COBRA coverage can last up to 18 months after you lost
your job (and extends to 36 months in some cases). But, if you fail to make
a scheduled premium payment on time, or before the end of any grace period,
it will end automatically. The cost will
generally be 102% of the premium for the type of coverage you have.
If I have family coverage, must I elect to continue
both my coverage and the coverage for my dependents?
You have the right to elect COBRA coverage separately for
yourself and your dependents. You can keep your coverage and decline for
your dependents, or you can decline your own COBRA coverage and elect coverage
for one or more of your dependents.
More
on COBRA from the U.S. Department of Labor
What if I can't afford COBRA coverage?
Check to find out if you or your children are eligible to receive
MaineCare. Contact:
Maine Department of Health and Human Services: 1-877-543-7669 or
Consumers for Affordable Health Care: 1-800-965-7476
Unemployment benefits are for workers who are out of work
through no fault of their own. Generally, you can draw these benefits for
up to 26 weeks.
Basically you must:
-
file a claim
-
be partially or totally unemployed, and
-
have earned a minimum amount of money in a specific
period of time
-
be able and available to work and
-
be actively looking for a job
Read more about these requirements
below.
How do I find out if I am eligible?
As soon as you are out of work, file a claim.
You can do this in one of three ways:
-
Online
- Phone: 1-800-593-7660 TTY: 1-888-457-8884
- Mail: Get forms from your nearest Career Center. Some town offices also have the forms.
Follow the mailing instructions on the form.
You will be asked to provide
information about your employment history, the reason for your job loss
and your availability for work.
Your eligibility is based on your having earned a minimum
amount in the first four of the last five completed calendar quarters
(Jan. - March, April - June, July - Sept., Oct. - Dec.). If you don't have
enough earnings during that year, the agency will then look at your four
most recent completed quarters. You must also have earned a certain
amount in each of two quarters during this period. (Workers who are employed
in seasonal industries have their benefits calculated differently.)
What happens if my employer's report of why I was
let go is different than mine?
A deputy at the Employment Security Office will contact both
you and your employer and request more information about the reason for
separation. Generally, you have to wait out a disqualifying period if you
quit your job without good cause or were fired for misconduct.
The deputy will review the information from both parities
and reach a decision about your eligibility.
Are there any circumstances in which I can quit work
and still collect unemployment benefits?
Yes. If you leave for "good cause" related to your work.
For example, you left because of unsafe conditions or other labor
law violations, such as sexual harassment. It must
be a situation which would have forced a reasonable person to quit. You
also must show that you made a serious effort to solve the problem before
you were forced to leave your job.
If your own illness or that of an immediate family member
forced you to leave work, you can collect as long as you notified your employer
as soon as possible. You must also request reemployment when you are able
to work again. You will not get benefits while you are unable to work.
What if I had to leave my job to follow my husband
or wife to a new location, or to escape domestic violence?
When you have to leave your job to follow your spouse, you
should be able to collect benefits. To qualify, you must "attach
to the new labor market" within 14 days of moving. Also, if you
are forced to leave your job because of domestic violence, you should qualify
as long as you can show that you did everything within
reason to try to keep your job.
My employer says that I was fired for having "a
bad attitude". Can I collect benefits?
Maybe. Being fired in itself is not a disqualification. However,
you will have to regain eligibility if you were discharged for "misconduct
connected with the work".
"Misconduct" means that your did something wrong that was within
your control and was very harmful to your employer. Several acts are presumed to be against your
employer's interests, such as:
- being drunk on the job
- using illegal drugs or being under the influence during the job
- being absence for more than 2 days because you were in jail
However, misconduct cannot be based solely on:
-
an isolated error in judgment
-
a failure to perform satisfactorily if you were making
a good faith effort
-
being absent due to illness if you made a good faith
effort to give notice
under your employer's notice rules, or
-
protecting yourself or your children from domestic violence
if you made
every reasonable effort to keep your job
Get legal advice, if you can, to help you evaluate a
"misconduct" charge.
What do I have to do to remain eligible for unemployment
compensation during the time I am receiving benefits?
You must file a separate claim each week. When
you file you will have to show that you are seriously looking for work and
not being unreasonably selective about job offers. Under a temporary law, you may be able
to qualify if you are looking for part-time work only. This rule is intended to help people who normally
work part-time or who are currently limited because a family member is sick or disabled or because of
domestic violence. (This law will "sunset" in September 2008 unless the legislature extends it.)
You must be physically "able and available" to work.
After you have been unemployed for over 12 weeks, you may be expected to
take a job outside your usual field of work and for a lower wage than you
were receiving. In some cases you can work and get partial benefits.
| Your Rights if You are Denied Benefits |
If the state denies your claim, you have the right to appeal.
What if the deputy decides that I am not eligible?
You will get a written decision telling you why you were found
ineligible, what the disqualification period will be, and how to re-qualify.
This notice will also tell you how to appeal this decision.
You must file an appeal within 15 days of
the date of the deputy's decision.
What do I do after I file the appeal?
You may take your case before an administrative hearing officer
of the Employment Security Commission.
You have the right to have - or not to have - a lawyer at this
hearing, to present evidence, to bring witnesses and to cross-examine the
employer.
If the hearing officer decides against you, you have the right
to request another appeal. This second appeal goes to the Unemployment Insurance Commission.
This appeal must be filed within 15 days of
the date the hearing officer's decision was mailed to you.
Do I automatically get another hearing?
No. The three-member Commission will either review the record
in your case, and affirm or set aside the hearing officer's decision, or
grant you a new hearing.
New hearings are generally held at this level only if:
-
you did not get a fair chance to present your case at
the first hearing, or
-
you can now produce significant new evidence.
Is the Commission my last chance to have my case heard?
No. You can appeal to Superior Court and even to the Maine
Supreme Judicial Court. However, you probably won't be allowed to
add new evidence to the record on appeal. So, be sure that you submit
all of the information you need to make your case during the agency hearing.
Also, you should get legal counsel, if you haven't already.
You must file any appeal within 30 days.
| Other Programs that Can Help |
The sudden loss of a steady paycheck can quickly break your
budget. Here are some federal, state and local programs which may help
you.
Food Stamps
This is a federal program run by the Department of Health and Human Services.
The income and limits are higher than you may think, and most families with children
will not be disqualified because of property they own. The program is designed to provide
assistance fairly quickly. Single individuals and families are eligible.
Apply at your local
DHHS office.
Temporary Assistance for Needy
Families
TANF assists children who have an absent or disabled parent.
Families with an unemployed parent can also qualify. There are income
and asset limitations. Apply at
your local DHHS office. DHHS also runs the Parents
as Scholars (PaS) program for eligible parents who are interested in
going to college to train for more highly skilled, better-paying jobs.
Fuel Assistance (LIHEAP)
Low-income households can qualify each heating season for help with their fuel bills.
Apply at your county CAP
(Community Action Program).
General Assistance
General Assistance is administered by each town in Maine and
funded by a combination of local and state money.
The program is a "safety net" to assist people who
cannot meet their most basic living expenses.
Go to your town office to apply. You will need proof of income
and expenses such as rent, food, fuel and utilities.
If you apply for any of the above
benefit programs and are denied, contact the
Pine Tree Legal Assistance office nearest you to talk about your
case. You may have good grounds to appeal.
Learn more about benefit and tax credit programs
Link to the
Maine Career Center (Employment Resources)
Link
to Maine Department of Labor's Maine Employee Rights Guide
