New Legislation and Other Rules Affecting Maine Employers

By Rudman Winchell Attorney

New Legislation and Other Rules Affecting Maine Employers
by Anne-Marie L. Storey, Esq.

New Legislation. There are several new laws/amendments from the 125th Legislature’s First Regular Session that affect Maine employers; the following are brief summaries of some of them and our employment team will discuss these in more detail at our upcoming Fall seminar. Unless otherwise noted as emergency legislation, these laws take effect on September 28, 2011.

An Act to Prohibit Texting While Driving. This law prohibits the operation of a motor vehicle while engaging in text messaging (defined as “reading or manually composing electronic communications, including text messages, instant messages and e-mails, using a portable electronic device”). Violation of the law is a traffic infraction that can result in a fine of not less than $100.

An Act Relating to Concealed Firearms Locked in Vehicles. With some exceptions, this law allows employees with valid concealed weapons permits to keep a firearm in the employee’s vehicle while on an employer’s property as long as the firearm is not visible and the vehicle is locked. The law exempts employers from civil liability for damages, injury or death resulting from the employee’s use of the firearm but does not exclude potential workers’ compensation coverage.

An Act to Modify the Laws Regarding Status as an Independent Contractor. This law, passed as emergency legislation, modifies the current test for whether an individual is an employee or an independent contractor known as the “ABC test”. The law redefines an independent contractor as one who is free from control or direction in performing services and either (1) the service is outside the usual course of business or is performed outside of the place of business; or (2) the individual is engaged in an independently established trade or occupation. This standard will be repealed on December 31, 2012; in the meantime, a stakeholder group is to be formed to develop a new test to be used in unemployment, workers’ compensation, and Department of Labor programs with recommendations to be made to the Joint Standing Committee on Labor, Commerce, Research, and Economic Development by January 15, 2012.

An Act to Exempt Employers Subject to Federally Mandated Drug and Alcohol Programs from Maine Substance Abuse Program Laws. Employers required by federal law to test any employees’ bodily fluids for controlled substances or alcohol (such as commercial drivers and aircraft workers) will now be exempt—as to all applicants and employees, not just those federally tested—from the stringent requirements of the Maine Substance Abuse Testing law. The law also requires preparation of a report on simplifying the law regarding substance abuse testing more generally, including topics such as post-accident testing, testing of supervisors, and elimination of mandatory employer payments for rehabilitation programs after a first positive test.

Based on these and other new laws, employers will need to amend and/or change employee handbooks and policies and should also consider training for employees and supervisors as to any new workplace requirements.

New Rule from the NLRB. In addition to these new laws, the National Labor Relations Board (NLRB) recently announced that as of November 14, 2011, all private employers covered by the National Labor Relations Act (NLRA) must post “notices informing their employees of their rights as employees” under the NLRA. This broad rule applies to most private employers, even if they do not currently have any unionized employees, with a few specific exceptions such as some religious institutions, railroads and air carriers, or those below a certain annual volume of business. An official copy of the notice is not currently available from the NLRB but is supposed to be available as of November 1 and can be obtained from the NLRB website at The poster informs employees, among other things, that “they have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.” The rule states that the posting must be physically within a communal area in the workplace and must also must be posted on any intranet or internet site “if the employer customarily communicates with its employees about personnel rules or policies by such means.” Failure to post the notice by November 14 itself can be considered an unfair labor practice. The notice certainly has the potential to cause increased interest in unions, particularly in businesses that do not currently have any unionized employees. In response to this new requirement, employers should post the notice in a timely manner and should also review handbook and/or other policies before then that address issues such as solicitation to ensure those rules are consistent with the law.

For more information please contact Anne-Marie Storey at 945-4501 or


These materials have been prepared by Rudman Winchell for educational purposes only. They should not be considered legal advice. The transmission of this information to you is not intended to create a lawyer-client relationship. Readers should not act upon this information without seeking professional counsel. You should not send any confidential or private information to Rudman Winchell until a formal attorney-client relationship has been established, in writing.