CONTENTS
Many thanks to Portland-based lawyer
Donald Fontaine for his help with updating this information.
This is a very general outline of your rights as a 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
more rights you may have under your union contract. Some city and town employees
have special rights. Also, if your employer has an employee handbook or written employment
policies, those may give you more rights than the ones explained here. A contract between
you and your employer might give you more rights.
Finally, if you think 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
system called "employment-at-will." This means that you are free
to quit your job whenever you want. Your employer is also free to fire you
for any reason or no reason at all. The only limit is that your employer cannot
fire you based on discrimination or retaliation.
Can I quit or be fired without notice?
The general rule is yes. However, if your employer has a policy that asks
you to give a week or two of notice, you should give notice. This also policy forces
the employer to give you the same amount of notice, or pay you your regular pay for
the week or two after you are let go.
What if my employer and I have an employment contract?
If you can prove that you and your boss entered into an agreement
that says you can be fired only for specific reasons - for example,
"for good cause" - this contract may be binding on the employer.
To appeal a discharge, follow the steps in the agreement or personnel policy.
I work for a city. Can I be fired without notice?
Some city and town employees have a right to notice and a short hearing before they are fired.
To see if you have this right, look at your job description, the city's policies or
the city's ordinances.
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 (including pregnancy)
- sexual orientation
- ancestry or national origin
- religion
- age
- mental or physical disability
- genetic predisposition
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 your boss thinks a man would do a better job, you have
been fired illegally.
My boss laid off 10 older workers for "lack of work," and then hired 10
younger workers. Is this illegal?
It could be. One way to prove illegal discrimination is to show that the employer gave a false
reason for firing you. You can also prove illegal discrimination by showing that workers in a
protected group were harmed by a decision while workers not in the protected group were helped
by the same decision. Your facts could prove the boss discriminated against you and the other
workers based upon age.
I quit because my co-workers constantly called me racist names. What can
I do about this?
You can bring a discrimination claim even if you quit your job. But you usually have to show
you told your boss or someone else in the company about the harassment. The company must
stop your co-workers from harassing you. If the company does not stop the harassment, and you
feel you have to quit, you may still bring a claim. Your claim is called "constructive
discharge."
What if I get fired because I complained about discrimination?
It is illegal to fire a worker because of a complaint about discrimination. This
is called "retaliation."
What protection do I have if I lost my job because of illegal discrimination?
The Maine Human Rights Act specifically protects all Maine workers from discriminatory
treatment. The federal Equal Employment Opportunity Act, Age Discrimination in Employment Act, and
Americans with Disabilities Act protect workers who work for employers with 15 or
more employees.
If you have lost your job because of illegal discrimination, you may file
a complaint with the Maine
Human Rights Commission within 6 months
after you were fired.
| 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 |
Filing with the Maine Human Rights Commission (MHRC) is free.
After you file a complaint, the MHRC will investigate. The MHRC
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 MHRC will issue a statement as to whether there is
"reasonable ground to believe" unlawful discrimination occurred.
This entire process can take a year or more.
Next, the MHRC, you, or a lawyer you hire can take the case to court. A court
decision or settlement might include getting your job back, lost pay, money,
and attorney's fees.
For more details about the MHRC process, go to their Q and A:
After a Charge Has Been Filed.
The Equal Employment Opportunity Commission (EEOC) also investigates discrimination
that breaks federal laws. If you miss the 6 month deadline for filing with the MHRC,
you can get the EEOC to investigate if you file with the EEOC up to
10 months after you were fired. You also have
to file with the MHRC when you file with the EEOC.
| 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. You cannot be fired (or discriminated against) because
you made a good-faith report that fits one of the actions protected by the law. The law
applies to these actions:
- Reporting an act that is against the law
- Reporting a health or safety risk
- Being a witness in an investigation or court hearing
- Refusing to follow an order that is illegal or will cause serious injury or death
- Reporting poor medical care of a patient by someone who works for your employer
To be covered by this law you must report the problem to your supervisor or a higher
supervisor. If the company does not fix the problem, then you can make a complaint to
state or local officials. You are only covered by this law if you report the problem to the
company before you report it to state or local officials.
The only exception is if you have specific reason to believe that reporting the
problem to the company will not fix it.
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 correct the situation.
Where can I go for help?
You can file a complaint with the Maine Human Rights Commission (MHRC). The MHRC will
investigate your complaint. You do not have to pay anything to file with the MHRC.
You must file with the MHRC within 6 months after you are
fired or discriminated against.
Call the MHRC at:
| 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 |
Some federal laws also protect workers. If you were discharged over a safety
issue, contact your nearest U.S. Department of Labor OSHA
office:
| Bangor District Office
382 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 or filed a workers compensation claim
- 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 for information about you, to determine whether you qualify for
help.
| Leave of Absence and Termination |
Can I be fired if I miss work because I'm sick?
If you qualify for leave under a Maine or federal law, it may be illegal for your employer
to fire you. If you have worked for your employer for a year or more, and you have a sickness
that requires you to go to the hospital or see a doctor regularly, you may qualify for Family
Medical Leave.
Can I be fired if I miss work because I need to take care of my child?
Maine and federal law also let you take time off from work to take care of your child and other
family members. If your child has a serious sickness, you may qualify for Family Medical Leave.
If your child has a cold and you only need to miss a day or two, Maine's Family Sick Leave Act
lets you take your paid vacation or sick time to care for your child.
How do I know if the law protects my time off?
Your time off could be protected by one or more of these laws:
- Federal Family Medical Leave Act
- Maine Family and Medical Leave Requirements
- Maine Family Sick Leave
- Employment Leave for Victims of Violence
- Maine Human Rights Act
- Americans with Disabilities Act
- Absence for Emergency Response
- Leave Relating to Reserve Training or Military Service (family members as well as service members)
- Leave of Absence as a Legislator
- Employment Leave Due to Extreme Public Health Emergency
Each law has its own special requirements. You can get more information from:
Pine Tree Legal Assistance
Maine Equal Justice
Maine Department of Labor
U.S. Department of Labor
You can also ask your boss or your company's human resources manager if you qualify for leave.
Get a note from your employer that says your leave is approved. Make sure the note gives the
day you must return to work.
| 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 the reason you were fired.
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 a copy of your file. You do not have to pay for the copy unless you already got
a copy during the same year.
Get
sample form letter.
If the employer does not give you a copy of your file within 10 days after 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 for your final paycheck. 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 you are not paid in full, you can sue for three
times the amount owed, 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 keep 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 take that overpayment from your last
paycheck. If your employer loaned you money, and you signed a note about
the loan, he can keep the amount you owe.
I worked for my employer for three years. Am I entitled to severance
pay?
Maine law gives you a right to severance pay if:
- you worked at the company for three years or longer and
- the company (or part of the company) has shut down or moved at least
100 miles awayand
- you did not accept employment at the location where the company moved
and
- the company employed 100 people or more sometime during the year before
it closed and
- the company was not forced to shut down or move due to disaster or
calamity
You may also get severance pay if you have a contract or a personnel policy
that 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 Social Security benefits?
Not until you retire at age 62 or older or become totally disabled. Get
more information from the 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.
Currently, a plan may have either a "cliff" vesting schedule
or a "graded" one. "Cliff" vesting is much more
common in traditional "defined benefit" plans.
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 is a "defined contribution" plan,
it may have three-year cliff vesting or six-year graded vesting for any
employer contributions.
These rules may vary depending upon when you left employment. The rules in place
when you left will decide our entitlement. There are different rules for plans
run by the government, such as city or state, or by church-sponsored plans.
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 must 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). Coverage will end automatically
if you miss a premium payment. Until recently, the cost was about 102% of the cost when
you were employed. But, if you became eligible for COBRA after September 1, 2008, you
may have another chance to get benefits, at a lower cost. If you:
- are eligible for COBRA because you were fired or laid off between
September 1, 2008 and December 31, 2009, and
- are not eligible for other group health coverage (such as a spouse's
plan) or Medicare, and
- elect COBRA coverage
you may only have to pay 35% of the premium under a special program. If you earn
more than $125,000, you may have to pay more than 35%.
This new lower cost program also lets people who did not elect COBRA, or lost
benefits after electing COBRA, to re-elect benefits. If you are eligible to re-elect,
you should receive a notice from the health insurance plan. If you think you may be
eligible, call the plan and ask about the "Recovery Act COBRA premium reduction
program."
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.
| Up to 72 weeks of Unemployment Benefits: The
basic benefit period is 26 weeks. In July 2008 Congress approved 20
additional weeks of Emergency Unemployment Compensation (EUC). In the
February 2009 Stimulus Bill, Congress extended EUC benefits another
13 weeks for some Maine workers who have exhausted other benefits.
In April 2009, the Maine legislature acted, to allow Maine workers to take advantage of an additional 13 weeks of
Extended Benefits.
Go to the Maine DOL website to learn more about
these 3 add-on benefit periods.
Increased Weekly Amount: The Stimulus Bill also temporarily
increased weekly unemployment payments by $25 for most workers.
Get
more information. |
Basically you must:
- file a claim and
- be partially or totally unemployed, and
- have earned a minimum amount of money in a specific period
of time, and
- 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 give 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 haven't earned
enough 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."
The law defines "misconduct" as "a culpable breach of [your] duties
and obligations to the employer or a pattern or irresponsible behavior, which...[shows] a disregard for a material
interest of the employer." In other words, you acted irresponsibly, didn't do your job,
and didn't act in your employer's best interests. Misconduct includes:
- not performing reasonable tasks and following instructions; you did this knowingly or repeatedly
- violating reasonable rules that you knew about and that are enforced fairly; your violation was unreasonable
- violating rules that are so common everybody knows about them; your violation was unreasonable
- being late to work after being warned
- dishonesty about your training or education or other qualifications, or
dishonesty about anything that could hurt the business
- drinking or being drunk on the job
- using illegal drugs or being under the influence during the job
- missing work for more than 2 days because you were in jail
- sleeping on the job, unless allowed
- abusive behavior, except when necessary for self-defense
- destroying or stealing the property of others
- causing a dangerous situation
- conviction of a crime in connection with your job, or that reflects
badly on your ability to perform your job
However, misconduct cannot be based solely on:
- a single mistake
- poor performance if you were making a good faith effort
- absence due to illness if you made a good faith effort to tell your
employer, 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 serious about looking for work and
not rejecting reasonable jobs. You may be able to qualify
if you are looking for part-time work only. This rule applies if you normally work part-time or
need to work part-time because a family member is sick or disabled or because
of domestic violence.
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. You can tell your side of the story, have other witnesses speak on your
behalf, ask the employer's witnesses questions, and show any paperwork that supports your claim.
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 can base its decision on the information from the
last hearing, or grant you a new hearing.
New hearings are generally held at this level only if:
- the first hearing was unfair, or
- you have important 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 help from a lawyer, if you haven't already. You must
file any appeal within 30 days.
| Job Training and Education Programs |
You may get education or job training through Maine's Competitive Skills Scholarship
Program. This program helps you get education, training, and
support so you can get a better job. This program only applies to certain "high demand"
jobs defined by the state. The Maine Career Center has more information about "high
demand" jobs. If you qualify, this program offers support for apprenticeships,
certificate programs, and two and four year degrees.
How do I qualify?
You may be eligible to receive training through this program
if you are:
- A Maine resident
- 18 or older
- Do not already hold a degree beyond high school, or your post-secondary
degree is in a field where you cannot find a job
- Your income is less than 200% of the Federal Poverty Level for your
family size, see income
guidelines
- You qualify for the training or education program in question
A Competitive Skills Scholarship can give you up to $8,000 per
year if you are studying full-time, and $4,000 per year if you are studying
part-time.
What will the scholarship cover?
You can use the money for:
- Tuition and fees that cannot be covered by other "reasonably available"
public scholarships and assistance.
- Books, supplies, tools and equipment required by your educational or
training program.
- Child care, transportation, and other necessary support as determined
by the Department of Labor.
- Education you need before you participate in the program (such as basic math or a GED).
Child care, transportation, and other unanticipated or emergency costs
related to your program do not count against the $4,000 or $8,000 limit.
For more information or to apply for a Competitive Skills Scholarship, contact
your local Career
Center.
| 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 US Department of Health
and Human Services. The income and limits are higher than you may think,
and most families with children qualify even if they own "excess assets." The program is
designed to provide help fast.
Single individuals and families can get food stamps.
Apply at your
local DHHS office.
Temporary Assistance for Needy
Families
TANF helps 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 get help with their fuel bills.
Apply at your county
CAP (Community Action Program).
General Assistance
General Assistance is run by each Maine town and
funded by both local and state money.
The program is a "safety net" to help 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
