Getting A Job

Legal Guide for Immigrants to Maine Printable Page

Getting A Job

Getting a Job.

The Maine Department of Labor may be able to help you find a job. The state has Career Centers where people can go to look for jobs and develop skills for finding and keeping a job. (See Resources.)

Working requirements. You may not be hired unless you are legally allowed to work in the United States. You will be asked to show documents within the first three days of starting work. These documents must prove your identity and show that you are allowed to work in the U.S. The employer will ask you to fill out Form I-9, Employment Eligibility Verification Form. The backside of the I-9 form lists documents that you can show the employer to prove these things. You can show any of the documents listed on the form. It is illegal for the employer to tell you which document that you must show. This is "document abuse." For example, if you show the employer an unexpired driver�s license and an unrestricted Social Security card (that does not say �valid only with Immigration work authorization� or something similar), it is illegal for the employer to say he wants to see your �green card� instead. As long as you are showing him document(s) listed on the I-9 form, you meet the requirement.

Social Security �No Match� Letters, and �E-Verify�:

Social Security �No Match Letters: When you start a job, you must give your employer your Social Security number. The Social Security Administration (SSA) has estimated that many of its records are incorrect. You, or your employer, may eventually receive a letter from the SSA saying that your Social Security number does not match the name that SSA has in its records (known as a �no match� letter). This could be due to a mistake that you or the employer made, such as:

the employer did not spell your name correctly
the employer wrote down your number wrong
the SSA�s records are incorrect, or
the Social Security number does not actually belong to you.

As of September 2008, if the Employer receives a �No Match� letter about you, the employer must still assume that you are authorized to work. The employer is supposed to tell you about the letter so that you can contact the SSA to try to correct their records. But the Federal government has proposed rules - NOT in effect yet - that would allow the employer to fire you if your records with SSA are not corrected within 90 days of when the employer receives a �no match� letter. This could lead to unnecessary firings, since the SSA has admitted that it would normally take the SSA longer than 90 days to correct their records. These proposed rules may or may not take effect. Speak with an immigration advocate immediately if you or your employer receives a �no match� letter. See Resources.

E-Verify: Immigration and the Federal government are persuading or requiring many employers to join the �E-Verify� program. Under E-Verify, an employer must enter each new employee�s Social Security number into a computer system. The system will then confirm whether or not government records show that the person with that name and number is authorized to work in the United States. If the employer receives a �nonconfirmation� notice, the employer must inform the worker. A "nonconfirmation" means that federal records do not show a match between the name and Social Security, or that the Social Security number is one that is not valid for work. The employee must go to the nearest SSA office to contest the nonconfirmation within 8 days of the E-Verify notice of nonconfirmation. If the employee does not, the employer must fire the employee. If the employee does go within 8 days to contest the "nonconfirmation" notice, the employee may continue to work legally with the employer until the employer receives a final notice from SSA, which may take weeks or more. If that final notice says that SSA still cannot confirm that the worker is legally eligible to work in the U.S., then the employer must fire the employee.

Discrimination in Hiring. In Maine, you cannot be refused a job because of your:

race
religion
color
sex
sexual orientation
age
national origin, or
mental or physical disability.

Employers must make "reasonable accommodations" (changes) for workers with a mental or physical disability.

"National origin discrimination" is when an employer refuses to hire you because you "look" or "sound" foreign. It is illegal. It is illegal for an employer to pay you less for those reasons. It is illegal for an employer to ask you to show that you are authorized to work in the U.S. during the application or interview process. The employer can only ask for proof of work authorization after the employer has offered you the job and you have reported to start work.

"Citizenship discrimination" is when an employer says he hires only people with a certain immigration status or with green cards. It is illegal to discriminate against you if you have a work permit or some other status that allows you to work in the U.S. However, some government jobs require that employees must be U.S. citizens.

You may have to speak English if it is needed to adequately or safely do your job. You must be told when you must speak English. You must be told what will happen to you if you do not. You must also be told when you can speak another language, such as during your breaks.

You can file a complaint with the Office of Special Counsel in Washington D.C. if you believe that an employer has committed citizenship or national origin discrimination or document abuse. (See Resources.) You must do this within 180 days. You may also file a complaint with the Maine Human Rights Commission or with the Equal Employment Opportunity Commission.

Workers' Rights.

Employment Contracts. Your employer does not have to provide you an employment contract. Most workers are employed "at-will" meaning that the employer has the right to fire you at any time and you have the right to quit whenever you want. If you do have an employment contract, both your employer and you must follow the agreements made in the contract

Unions. You have the right to join or form a union to negotiate with your employer. In Maine employers may not hire workers to break a union strike if your union organizes you and other workers to "strike" (refusing to work in order to gain some benefit from your employer).

Drug Testing. You may be required to take a drug test at work if federal law requires drug testing or if the Maine Department of Labor has approved an employer's drug policy. Your employer may refuse to hire you or may fire you if you refuse to take a drug test. If you test positive for drugs your employer may:

refuse to hire you
fire you - if you test positive more than once or refuse rehabilitation
discipline you, or
change your work.

Your employer must send your sample to a lab that you choose if you test positive but do not agree with the result. Your employer is required to tell you how to appeal the test. Your employer may give you a Breathalyzer test for alcohol at any time.

Family and Medical Leave. In Maine if your employer has more that 15 employees or is a public agency, and you have worked there for 12 months in a row, you have a right to 10 weeks unpaid leave if:

You, your child, or your spouse have a serious illness,
You or your spouse have a child, you adopt a child who is 16 years old or younger, or
You are donating an organ for human transplant.

Your employer must allow you to come back to the same job or one like it after 10 weeks.

You have a right to 12 weeks unpaid leave if your employer has more than 50 employees within 75 miles and you have worked for the employer for more than 1,250 hours. The unpaid leave must be for the reasons stated above.

Domestic Violence Leave. If you are a victim of domestic violence or stalking, your employer must give you time off from work:

to prepare for or attend court
to receive medical treatment
to receive crisis services.

The time off can be without pay. Your employer must also give you time off if your child, spouse, or parent is a victim of domestic violence. You must request the time off from your employer.

Religious Rights. You have a right to practice your religion. At a business with more than 15 employees, your employer must accommodate your religious practices unless they interfere with the business. Your employer must make reasonable efforts for you to take off time for:

the Sabbath or holy days
religious practices like observation of prayer time during the work day.

Your employer must also accommodate religious practices such as wearing a beard or certain clothing, unless they prevent you from doing your job.

Sexual Harassment. You have the right to work in a place free from sexual harassment. Your employer is required to display posters defining sexual harassment at your work. You do not have to put up with sexual contact or comments to keep your job. In general, sexual harassment can include:

unwelcome sexual advances
hugging
kissing or touching that you do not welcome or want
obscene comments, jokes or remarks
requests for sexual favors.

Make clear to the person harassing you that you want the harassment to stop. Write down specifics of what is happening, including dates and times. Complain to your supervisor and union steward, if you have one. If the harassment continues, contact the Maine Human Rights Commission. (See Resources.)

Privacy. You have the right to see your entire personnel file and, once a year, to receive a complete copy of the file at no cost. You should ask in writing to see your file. Your employer must allow you access to your file during normal business hours within ten days of your request. Your employer may not use lie detector tests as a condition of employment.

Minimum Wage, Overtime Pay, and Breaks. The minimum wage in Maine is $7.25 an hour (beginning 10/1/2008 and increasing to $7.50 on 10/1/2009). Maine does not have a special wage for training employees or students. If you are an employee who receives tips, your employer can pay you ½ of the minimum wage. If your tips plus your salary do not equal minimum wage in any given week, your employer must make up the difference.

You are entitled to overtime pay if you work more than 40 hours in a week. Overtime pay is 1 ½ times your hourly wage. Your employer does not have to pay you overtime for working on a holiday. Your employer may not require you to work more than 80 hours in a week for more than two weeks at a time unless you:

provide emergency or essential services
are a salaried executive, or
are an agricultural worker.

Your employer may not deduct things from your pay like broken merchandise or bills that customers have not paid. Your employer may not pay you less than other employees based on your gender. If you work for a business that closes, you may receive up to 2 weeks pay from the Maine Wage Assurance fund.

You are allowed one 30 minute break for every six hours of work if you work in a business that has more than 3 employees working at any given time. This is not true if you have a written agreement with your employer that says otherwise.

Most of these laws do not apply to agricultural work.

Workplace Safety. You have the right to be safe in the workplace. You may refuse to do a job if you think it may cause death or serious injury. Employers must make workplaces safe from "serious recognized hazards." The Maine Department of Labor checks public workplaces regularly to make sure that they are safe. If you work for a private employer, you may report any unsafe conditions to Occupational Safety and Health Administration (OSHA). (See Resources.)

You have a right to special training if you work at a computer for more than 4 hours a day. You also have a "right to know" if chemicals or other harmful materials are used in your workplace. Your employer has a duty to train you to work with these materials safely.

You also have a right to be safe from second hand smoke in your workplace. Smoking may be allowed in certain areas of the building you work in. This area must be separately ventilated to keep smoke out of the workplace. Your employer may not discriminate against you for smoking outside of the workplace.

Your employer may not fire you or threaten to fire you because you report a legal or safety violation. Your employer may not fire you because you take part in a government investigation. If you do notice a legal or safety violation, tell your employer what is wrong. Give him a reasonable amount of time to fix the problem.

Workplace Raids by Immigration

Immigration (Immigration and Customs Enforcement - ICE) can come to any workplace to make sure that all of the workers are legally in the U.S. and have legal permission to work. You can be fired from your job and deported if you do not have legal permission to work in the U.S.

If you are not legally here, you still have legal rights when confronted by an ICE agent. These include:

the right to remain silent (You do not have to state your name, or where you are from, or give any other information. Immigration is not allowed to assume you are undocumented just because you choose to exercise your legal right to remain silent.).
the right to not answer any questions.
the right to not show any documents.
the right to not sign any papers.
the right to speak with a lawyer before answering any questions or signing any papers.

Note that if ICE comes into your workplace and you try to run away, ICE can use that fact as evidence that you are not here legally. They can detain or arrest you just for trying to run away.

Ask to speak to a lawyer immediately if Immigration agents say they will detain you. You do not have to answer any questions until you speak to the lawyer. Immigration may help you make a phone call to an immigration legal services agency.

If Immigration does not detain you but gives you papers that say you must go to the Immigration Court, speak with an immigration lawyer as soon as possible. (See Resources.) Contact an immigration lawyer if you have any questions about workplace raids or any other question about immigration laws and enforcement.

Unemployment

The government provides unemployment benefits to some workers who are out of work. These benefits are a temporary aid to workers who are unemployed. You can receive unemployment for up to 26 weeks. Your benefits are based on the wages you have earned over a specific period of time. In times of high unemployment "extended benefits" may be available. (As of January 2009, qualified workers in Maine can get up to 59 weeks of benefits, including extensions.)

To get unemployment benefits, you must pass two basic tests: eligibility and "fault". 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

You must be able to work, be available for employment and be actively looking for a job.

What to do. As soon as you are out of work, file a claim. Call an Unemployment Claims Call Center, get a claim form from your town office or nearest Department of Labor Career Center, or file a claim online. You will be asked to provide information about your employment history, the reason for your job loss and your availability for work. Follow the link below and click on "File a new unemployment claim."
http://www.maine.gov/labor/unemployment/online_services.html

Who is eligible? 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.)

Second, the reason for your unemployment must not be your fault. You can still get benefits if you fit into one of these categories.

Voluntary quit for good cause. You quit, for example, because of conditions, labor law violations, or sexual harassment. It must be a situation that would have forced any reasonable person to quit.
Illness. Your own illness or that of an immediate family member forced you to leave.
Follow the spouse and domestic violence. You had to leave your job to follow your spouse or because of domestic violence.
Firing for "bad attitude." If your employer says you were fired because of your "bad attitude," you may be able to get benefits. Get legal advice, if you can, to help you evaluate a "misconduct" charge.

Weekly claims and work search. You must file a separate claim each week. You can file a weekly claim by mail, by phone (call 1-800-593-7660 and enter the PIN # that you choose when you first apply for benefits), or online. Follow the link below and click on "File a weekly unemployment claim."
http://www.maine.gov/labor/unemployment/online_services.html

When you file, you will have to show that you are seriously looking for work and not being unreasonably selective about job offers. You will be given a job search log that you must fill out and return every five weeks. You must show on the log that you looked for work at 3 different places each week. 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 earning before.

Appealing deputy's decision. You have the right to appeal the deputy's decision to an informal hearing. You must file an appeal within 15 days of the date of the deputy's decision. The hearing office will explain to you what happens after you file the appeal.

Termination of Employment

Maine employers and employees work under a very 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 notice and without cause. But there are major exceptions to this basic rule.

Fired without notice or without cause. The general rule is that no notice is required. 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. This rule holds only if you and your employer have specifically agreed on it.

If you can prove that you and your boss entered into an employment agreement that says you can be discharged only for specific reasons, this contract may be binding on the employer. For example, your contract may say that you can only be fired for "good cause."

Union labor contracts. Where your employer and your union have a labor contract, 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 you if you are going to be fired. You may have to pay for this service.

Illegal Grounds for Termination

Retaliatory firings. A state law called the "Whistleblowers' Protection Act" protects you from good faith reporting of work place violations to a governmental agency. To be covered you must have first reported the problem to your supervisor. You must allow a reasonable time for correction before making your complaint. The only exception is if you have specific reason to believe that reporting the violation will not result in prompt attention to the problem.

Dangerous working conditions. The law protects you from being fired because you refused to do a dangerous job. However, the threat to you must have been immediate and very serious. To file a complaint if you were discharged over a safety issue, contact your nearest U.S. Department of Labor OSHA office.

More illegal firing rules. Your employer may not fire you solely because:

you were called for jury duty, or
the state is taking money out of your paycheck to pay child support, or
the state is taking money out of your paycheck to collect an overpayment of public benefits

Some public benefit programs, like General Assistance, prohibit your employer from firing you, or penalizing you in any way, because the state or town asked him for information to process your benefits application.

You cannot be fired because you were injured on the job and filed a Worker's Compensation claim.

Payment on Termination

Once you have left work, ask to get your final paycheck. Your employer must give it to you on the next regular payday 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 interest on the original amount and attorney's fees.

If your company closes and has no money left, you can get up to two weeks of back pay from the Maine Wage Assurance Fund.

Debts to the boss. Unless you have agreed in writing, your ex-employer cannot withhold money from you to settle a debt he claims you owe.

Severance pay. By Maine statute, you are not entitled to severance pay unless:

the company has shut down or moved at least 100 miles away
the company employed 100 people or more sometime during the year before it closed, and
you worked there for over three years

If you have a contract, find out if it gives you more severance pay rights.

Workers' Compensation

If you suffer a job-related injury, you can get money from the state to help you get through your loss. Most Maine workers are covered by this benefit. You must tell your employer if you are hurt on the job. You must do this within 90 days of your injury. Seek medical help right away. This will help to document your claim. Your employer must file a "First Report" with the Workers' Compensation agency and give you a copy.

You may be able to get some or all of these benefits:

payment of 80% of your after-tax average weekly wage so long as you are totally disabled
payment of partial wage benefits if you can work part-time or go back to a lesser paying job, for up to 364 weeks (or longer if you have a certain level of "permanent impairment")
payment of your medical bills
employment rehabilitation services, including training

Your employer must let you go back to your job when you are ready if it is still open. Otherwise, he must offer you another job that you can do. If you have an on-going disability, the law may require your employer to make "reasonable accommodation" so that you can do the job. You must ask to go back to work within 1 year of the date of your injury (or within 3 years if you work for a large company with more than 200 employees).

You have appeal rights if the State denies your claim. The steps are:

informal resolution through an agency Troubleshooter
mediation, and
formal agency hearing

Ask Workers' Compensation about giving you an agency Advocate, if you cannot afford a lawyer.

Starting Your Own Business

Before you start a business, you should consult with an experienced attorney about the business's structure and obligations under state and federal law. There are three basic ways of organizing a business:

sole proprietorship
partnership
corporation

These business structures have different legal implications.

Sole proprietorship. Most people start their business as a sole proprietorship. A sole proprietorship is a business that is owned and controlled by one person. This person takes all responsibility for profits, losses, and all legal liability. If you are the sole proprietor, you are responsible for any debts to creditors and any lawsuits brought against the business. These debts and liabilities can be taken out of any property or assets you own for the business as well as anything you own personally, like your home.

Partnership. If you are starting a business with more than one person, it is a partnership. A partnership is a flexible business organization. It is similar to a sole proprietorship in that the owners can be held personally responsible for any debts or liabilities that the business acquires. It is different in that in some instances, for example in owning or conveying title to real or personal property, the partnership exists independently of the individual partners. Partnerships do not pay federal income tax. Instead, the individual partners pay tax.

Corporations. A corporation is considered a separate entity from the company's owners. The owners are called "shareholders" because each owner holds one or more "shares" in the company. The shareholders of a corporation have limited liability for the company's debts, conduct and obligations.

A board of directors manages a corporation. In an annual stockholders' meeting, the board makes a report to the shareholders. A corporation can be taxed, sued and enter into contractual obligations. A corporation must be registered with the state.

Financing a Business. You can create your business with your own assets or through a commercial lender. To get a loan from a bank to finance a business idea you will need a written business plan, proof of your income, good credit, and proof that you have filed and paid income taxes. You will also need a social security number.

Resources.

Immigration Legal Aid in Maine

Immigrant Legal Advocacy Project
309 Cumberland Avenue, Suite 201
P.O. Box 17917 Portland, Maine 04112
207-780-1593 or 1-800-497-8505
www.ilapmaine.org
Services are free or low-fee depending on income.

Private Immigration Lawyers: See the "Immigration Law" listing under "Lawyers" in the Yellow Pages of the phone book

Discrimination:
U.S. Department of Justice
Civil Rights Division
Special Counsel for Immigration Related Unfair Employment Practices
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530
(800) 255-7688

Equal Employment Opportunity Commission
John F. Kennedy Federal Building
475 Government Center
Boston, MA 02203
(617) 565-3200
TTY (617) 565-3204 or 1-800-669-6820
www.eeoc.gov

Maine Human Rights Commission
51 State House Station
Augusta, Maine 04333-0051
(207) 624–6050

Workers' Rights:

Maine Department of Labor
Bureau of Labor Standards
45 State House Station
Augusta, Maine 04333-0045
(207) 624-6400 or 624-6410

Career Centers, 1-888-457-8833.

U.S. Dep't of Labor, OSHA offices:

Portland District Office
100 Middle Street, Suite 410 West
Portland, Maine 04101
(207) 780-3178

Bangor Area Office
202 Harlow Street, Room 211
Bangor, Maine 04401
(207) 941-8177

Starting a business:

Small Business Administration
Maine District Office
Edmund S. Muskie Federal Building, Room 512
68 Sewell Street
Augusta, ME 04330
(207) 622-8274

More Online Information

Maine Employee Rights Guide
www.maine.gov/labor/labor_laws/publications/employeerightsguide.html

If You Lose Your Job: Information for Unemployed Workers
www.ptla.org/ptlasite/cliented/employ.htm

Sexual Harassment on the Job: It Is Illegal
www.maine.gov/mhrc/publications/sexual_harrassment_brochure.html

Maine Department of Labor Unemployment Insurance Benefits information
www.state.me.us/labor/uibennys/index.html

Unemployed Worker Benefits
www.ptla.org/ptlasite/cliented/unemployment.htm

OSHA Workers' Page
www.osha.gov/as/opa/worker/index.html

Facts About Maine Workers' Compensation Law
www.state.me.us/wcb/facts.htm

The New England Pension Assistance Project
University of Massachusetts Boston
100 Morrissey Blvd.
Boston, Massachusetts 02125-3393
Telephone: 617-287-7332
www.pensionaction.org/nepap.htm

Updated January 2009