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Maine Expands Antidiscrimination Law and Restricts Noncompete Agreements

Lawmakers in Maine closed out the 2019 legislative session with a flurry of activity. Legislators passed more than 500 bills this year, including 50 on the final day, with many targeting the state’s employment laws.

Earlier in the legislative session, Maine made national headlines by becoming the first state to mandate private employers provide paid leave for any reason. Maine also joined a handful of other states in banning employers from asking job applicants about their salary histories.

Within the past month, Maine enacted several other significant changes to its employment laws that employers will need to comply with almost immediately.

L.D. 1701 – An Act to Clarify Various Provisions of the Maine Human Rights Act

On June 23, 2019, Governor Janet Mills signed L.D. 1701, which adds “gender identity” to the definition of protected traits for which harassment may be unlawful. Under the new law, the Maine Human Rights Act definitions section (Sec. 1. 5 § MRSA 4553) now defines “unlawful discrimination” as including “[d]iscrimination in employment, housing, public accommodation, credit and educational opportunity on the basis of sexual orientation or gender identity, except that a religious corporation, association or organization that does not receive public funds is exempt from this provision . . .” (emphasis added).

The Human Rights Act arguably already covered gender-identity-based harassment under its broad “sexual orientation” definition, but L.D. 1701 now specifies that “gender identity” means “the gender-related identity, appearance, mannerisms or other gender-related characteristics of an individual, regardless of the individual’s assigned sex at birth.”

The act also dictates how businesses open to the public may label restrooms as further protection for transgendered individuals. The new law makes it unlawful for “any public accommodation to designate a single-occupancy toilet facility as for use only by members of one sex. A single-occupancy toilet facility may be identified by a sign, as long as the sign does not indicate that the facility is for use by members of one specific sex.”

Lastly, L.D. 1701 clarifies that a leave of absence from work can qualify as a reasonable accommodation for an employee’s claimed disability.

These modifications to the Human Rights Act take effect on September 18, 2019.

L.D. 666 – An Act to Protect Pregnant Workers

Governor Mills signed L.D. 666 on June 27, 2019. The legislation tackles discrimination against pregnant women and new mothers in the workplace.

The law makes it unlawful for an employer to fail to provide a reasonable accommodation for an employee’s pregnancy or “pregnancy-related condition” unless doing so would impose an undue hardship on the employer. L.D. 666 defines “pregnancy-related condition” as a “known limitation of an employee’s ability to perform the functions of a job due to pregnancy, childbirth or related medical conditions, including but not limited to lactation.”

Although Maine had previously protected pregnant women from unlawful discrimination on the basis of sex, L.D. 666 specifically defines what reasonable accommodations are for a pregnancy-related condition. These include “more frequent or longer breaks; temporary modification in work schedules, seating or equipment; temporary relief from lifting requirements; temporary transfer to less strenuous or hazardous work; and provisions for lactation.”

This is the first time Maine has specifically provided protections for breastfeeding mothers. The law takes effect on September 18, 2019.

L.D. 733 – An Act to Promote Keeping Workers in Maine

On June 28, 2019, the governor signed L.D. 733, which flew under the radar due to its vague title. The title mentions nothing about noncompete agreements, but that is exactly what the law targets.

L.D. 733 first states, “[n]oncompete agreements are contrary to public policy” and are only enforceable to the extent they are reasonable and no broader than necessary to protect an employer’s trade secrets, confidential information, and/or goodwill. Maine defines a “noncompete agreement” as a “contract or contract provision that prohibits an employee or prospective employee from working in the same or a similar profession or in a specified geographic area for a certain period of time following termination of employment.”

However, regardless of the need for a noncompete agreement, under Maine’s new law an employer may not require, or even permit, an employee earning wages at or below 400 percent of the federal poverty level to enter into a noncompete agreement.

For employees earning over the statute’s threshold, an employer cannot ask an employee to enter into a noncompete agreement upon termination unless the employer disclosed the agreement prior to even making an offer of employment. Noncompete agreements cannot take effect until after one year of the employee’s employment or a period of six months from the date of signing the agreement, whichever is later.

L.D. 733 will apply to all noncompete agreements entered into or renewed after September 18, 2019.

In addition, L.D. 733 prohibits “restrictive employment agreements” between multiple employers in all forms. A “restrictive employment agreement” is an agreement that

  • is between two or more employers, including through a franchise agreement or a contractor and subcontractor agreement; and

  • prohibits or restricts one employer from soliciting or hiring another employer’s employees or former employees.

Violations of L.D. 733 will result in a minimum fine of $5,000.

Employers operating in Maine may want to review their policies and practices to ensure compliance with these new laws.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

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About this Author

James Silvers, Human Resources, Attorney, Ogletree Deakins Law Firm
Associate

Mr. Silvers assists employers with human resources and employment-related matters, including matters related to employee onboarding and background checks, termination, discrimination, and employment contracts. As a member of the firm's Background Check Advice Team, Mr. Silvers regularly counsels clients on practical, lawful ways to comply with the federal Fair Credit Reporting Act, Title VII, and state mini-FCRAs. Mr. Silvers also regularly advises employers on ADA and FMLA matters and RIF matters (including ADEA, OWBPA, and WARN issues).

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