Code of Maine Rules — Department of Labor

12-150 Blind and Visually Impaired Division (Note: This agency moved from 05, Department of Education on July 1, 1996.)

Chapter 15 Rules Governing the Business Enterprise Program for Individuals Who Are Blind or Visually Impaired

Code Me. R. 12-150 Ch. 15 Rules Governing the Business Enterprise Program {#sec-12-150-ch.-15 omnilex-key=us-me-regs-official--dept-labor--12-150 Ch. 15}

SECTION PAGE

Definitions 2

2. Selection and Placement of Individuals on Roster 3

3. Issuance and Conditions of Licenses 4

Preference 5

Assignments of Locations 6

Termination of Licenses 6

Vending Facility Equipment and Initial Stock 7

Assistance and In-Service Training Provided to Managers 8

Responsibilities of Licensed Facility Manager 10

Setting Aside of Funds 10

Distribution and Use of Income From Vending Machines on Federal Property 10

Employees 11

Election, Organization and function of State Committee of Blind Managers 13

Administrative Review, Evidentiary Hearing, Arbitration of Managers’ Complaints 13

Dispute Resolution 14

Access to Program Financial Information 14

Explanation to Manager of Rights and Responsibilities 14

Familiarity With Site Requirements 14

State Sales Tax 14

Vacation 15

Insurance………………………………………………………………………………………….20

Manager Evaluations……………………………………………………………………………..20

Civil Rights…………………………………………………………………………………… 20

SUMMARY: This chapter outlines the procedures and standards governing the licensing by the Division for the Blind and Visually Impaired of blind persons as vending facility managers, pursuant to Title 34 CFR Section 395 and 26 M.R.S. §§ 1418-F to 1418-M.

SECTION 1: DEFINITIONS

For purposes of the Business Enterprise Program, the following definitions apply:

1. BLIND PERSON: A person who has: - 1. Not more than 20/200 central visual acuity in the better eye after correction: or 2. A limitation in the field of vision in the better eye such that the widest diameter of the visual field subtends an angle no greater than twenty (20) degrees. 3. Such blindness shall be certified by a duly licensed ophthalmologist and/or optometrist.
2. BUSINESS ENTERPRISE PROGRAM (“BEP”): The program administered by the State Licensing Agency (“SLA”), also known as the “Randolph-Sheppard Program,”
3. BUSINESS ENTERPRISE LAW OR BEP LAW: 26 M.R.S § 1418 and1418-F to 1418-M.
4. CAFETERIA: A food dispensing facility capable of providing a broad variety of prepared food and beverages (including hot meals) primarily through the use of a line where the customer serves themselves from displayed selections. A cafeteria may be fully automatic, or some limited service may be available and provided within a cafeteria and table or booth seating facilities are always provided.
5. DEPARTMENT: The Department of Labor.
6. DIVISION: The Division for the Blind and Visually Impaired.
7. EQUIPMENT: Items characterized by having a relatively long life and capacity, to be used repeatedly.
8. FEDERAL BUILDING OR PROPERTY: Means any building, land, or other real property owned, leased or occupied by any department, agency or instrumentality of the United States (including the Department of Defense and the U.S. Postal Service), or any instrumentality wholly owned by the United States, or by any department or agency of the District of Columbia or any territory or possession of the United States.
9. INITIAL STOCK: All types of merchandise necessary for the establishment of the new business. In a major expansion or change in the nature of the facility, new items not previously carried but now considered necessary, or desirable, can be considered initial stock.
10. LICENSE: A written instrument issued by the State Licensing Agency to a blind person authorizing such person to manage a vending facility on federal or other property
11. MANAGER: A blind person who has been licensed by the SLA, is self-employed, and is actually managing a vending facility on federal, state, county, municipal or other property.
12. PROPERTY MANAGER OR MANAGEMENT: means the officer, board or other authority in charge of a State building or property.
13. STATE BUILDING OR PROPERTY: Means a building or land owned, leased or occupied by a department, agency or authority of the State or a county or a municipality of the State. This includes University, College, Community and Junior Colleges, the Maine Turnpike Authority and excludes other educational institutions such as elementary and High Schools.
14. RANDOLPH-SHEPPARD ACT: 20 U.S.C. §§ 107-107f and accompanying regulations, 34 C.F.R. § 395.
15. SATISFACTORY SITE: An area fully accessible to vending facility patrons and having:

(1) Effective on March 23, 1977 a minimum of 250 square feet available for the vending and secure storage of articles necessary for the operation of a vending facility; and

(2) Sufficient electrical, plumbing, heating and ventilation outlets for the location and operation of a vending facility in accordance with applicable health laws and building codes.

1. SET-ASIDE: Funds collected from managers to cover program costs as set forth in 34 CFR §395.9.
2. STATE LICENSING AGENCY (“SLA”): State agency designated to oversee the Randolph-Sheppard Program. In Maine the State Licensing Agency is the Division for the Blind and Visually Impaired, Department of Labor.
3. VENDING FACILITY (“FACILITY automatic vending machines, cafeterias, snack bars, cart services, shelters, counters, and such other appropriate auxiliary equipment, including but not limited to shelving, displays, wall cases, refrigerating apparatus, which may be operated by blind licensees and which is necessary for the sale of newspapers, periodicals, confections, tobacco products, food, beverages, lottery tickets and other articles or services dispensed automatically or manually and prepared on or off the premises in accordance with all applicable health laws. Cafeterias, snack bars, cart services, shelters and counters may also include a restaurant, Micro Markets, food trucks, a vending machine for food and beverages and goods and services customarily offered in connection with a restaurant, including the specific cafeteria in the State Office Building in Augusta.
4. VOCATIONAL REHABILITATION: Program that assists eligible individuals who have a visual impairment prepare for, secure, retain, advance or regain an employment outcome.

SECTION 2: SELECTION AND PLACEMENT OF INDIVIDUALS ON ROSTER

ELIGIBILITY

A. The SLA shall maintain a roster of persons who are eligible for licensing as managers. To be eligible for inclusion on the roster, the applicant must meet the following criteria:

(1) Must be a citizen of the United States;

(2) Must be blind, as defined in this Chapter;

(3) Must be at least eighteen years of age;

(4) Must meet health qualifications of applicable state and federal codes related to food handling in relationship to the transmission of infectious or communicable diseases to others. This standard is applicable to all persons who are eligible for licensing as managers. Confirmation is evidenced by the submission of a medical report;

Must be capable of performing either with or without accommodations, the essential job functions and have strong customer service skills as observed through on-the-job training or other training activities;

(6) Must have basic math skills as identified in written evaluations;

(7) Must successfully complete the BEP evaluation and training requirements, including the sanitation certification and on-the-job training, if applicable;

(8) Must submit to a background check when required in order to operate a specific BEP facility; and

(9) Must submit to a credit check. Poor credit rating will result in requirement to attend credit counseling.

B. Individuals interested in becoming a BEP Manager, all other qualities being equal, the person having seniority in placement on the roster will be selected.

C. Preference will be given to the individual with the skills, abilities and personal qualifications especially suited to the vending facility where a vacancy exists.

D. Needs of the BEP, such as existing vacancies shall be given top consideration with input from licensed managers as validated by the SLA.

SECTION 3: ISSUANCE AND CONDITIONS OF LICENSES

PROBATION

There shall be a six-month probationary period once an individual is assigned to a facility. At successful completion of a six-month probationary period, a permanent license will be issued for an indefinite period of time subject to conditions set forth in this chapter. A License shall be signed by the facility manager and the SLA upon completion of the probationary period. All individuals assigned to a facility will enter into an Operations Agreement with the SLA for that specific location.

B. Probationary period may be extended by the SLA when training or other requirements in BEP Rules have not been completed satisfactorily and documented as such.

C. If an individual fails to complete a probationary period satisfactorily, a permanent license may be denied, and written notice thereof will be provided. The SLA and Individual may develop an action plan including timeline to obtain licensure.

2. LICENSING AND SENIORITY

A. A licensed manager who resigns from their position or leaves the BEP in good standing will retain seniority minus time away from BEP if they return to the program. Seniority will resume effective at the time they are assigned to a BEP facility.

B. Individuals will be expected to participate in the BEP training curriculum and satisfactorily complete requirements of BEP.

C. Individuals may request an accelerated training program. Also, a licensed manager who resigns from the program with a letter in good standing and returns within two (2) years of their departure may have training curriculum participation waived, provided they meet the requirements for management and operations of specific type of facility.

D. If an individual is terminated from the BEP, all seniority which they have accumulated and the rights to that license will be forfeited.

SECTION 4: PREFERENCE

Application of the Preference. This applies to State property only. The property manager shall adopt policies and take actions necessary to ensure that blind persons are given preference in the establishment and the operation of vending facilities on property under its jurisdiction. The preference must be broadly construed consistent with the intent of the Randolph-Sheppard Act and BEP law, namely, to provide economic opportunities to blind persons.

Vending machines. The property manager shall allow the Division to place vending machines in a building where a vending facility operated by a manager would not be feasible. The Division must be permitted the opportunity to place vending machines in such circumstances as a right of first refusal.

The Division shall have the authority to select a third-party vendor to provide vending services.

The Division may elect to allow the property manager to issue a request for competitive bidding if the purposes of the BEP Law and these Rules are satisfied.

Direct Competition. Arrange for the assignment of the income derived from vending machines that are located in reasonable proximity to and direct competition with a vending facility to accrue to the Division’s account. The Division, in its sole discretion, may elect to share revenue from vending machines operated by a third-party vendor with the property management. Such an income sharing may be time limited and affect pricing of vending products.

Cafeterias. Application of the preference may be through invitation by the property manager for the Division to assign a manager to operate the facility or to respond to a request for competitive bidding. The scoring for any such competitive bidding must recognize the preference consistent with the purposes of the BEP Law. A mere tiebreaker in scoring the bids shall not be sufficient to satisfy the preference. Cost alone, including the prohibition against charging the SLA or a manager for rent, electricity or heat, may not be a factor to defeat the preference.

Other Vending Facilities. The property manager may not contract with any third-party entity before affording the SLA or manager a preference in operating a vending facility other than vending machines and cafeterias.

Rental fees are prohibited. Property management may not require the Division or the manager to pay rent, electricity or heat as a condition of operating any vending facility except as expressly permitted by 26 M.R.S. § 1418-K (2). A fee for rent, electricity or heat is not permitted if the public building is a workplace for public employees, even if members of the public also use the public building.

Direct Competition. Property management may not operate or allow the operation of any vending machine or vending facility, whether on an ongoing, intermittent, or temporary basis, on the same premises as a vending facility operated by a manager, except as follows:

Vending machines or vending facilities may be operated in areas serving employees the majority of whom normally do not have direct access (in terms of uninterrupted ease of approach and the amount of time required to patronize the vending facility) to the vending facility operated by a blind vendor.

The Division may consult with property management as to logistical matters related to the vending facilities, including building access and security issues, product type, and similar matters.

SECTION 5: ASSIGNMENTS OF LOCATIONS

1. In authorizing vending facilities or other businesses on state property, the Division for the Blind and Visually Impaired SLA shall give preference to persons who are blind and who are licensed by the SLA in order to enlarge the economic opportunities of persons who are blind and visually impaired by providing remunerative employment opportunities.

For the purpose of assisting blind persons to become self-supporting, the SLA is hereby authorized to carry on activities to promote the employment of eligible blind persons, including the licensing and establishment of such persons as operators of vending facilities on public property. Blind licensees shall be given the first opportunity to participate in the operation of vending facilities on all state properties when such facilities are operated under the supervision of the Division for the Blind and Visually Impaired SLA.

2. When a location for a new facility has been established or a vacancy in an existing location is created, the facility manager will be assigned according to the following procedure:

A. All licensed managers will be notified of the vacancy. As much information as possible about the potential of the business shall be included.

B. Interviews shall be held for all qualified managers who request to be a candidate for the new location and who have been trained or hold a certificate for type of facility i.e., snack bar, cafeteria, vending or Micro Market.

A representative of the SLA, along with at least one licensed manager will be on the selection panel. Factors to be considered by the panel when making the selection will be:

(1) Managerial and other skills and abilities demonstrated by the candidates, as they fit the type of available facility, including handling labor needs, complexity of financial requirements, food preparation and customer relations.

(2) Previous records of the candidates under consideration, including submission of required reports in an accurate and timely fashion, customer satisfaction, improvements in profits or number of customers as a result of the manager’s abilities, safety and sanitation inspections, fee and bill payment history, attendance at training meetings, and past evaluations by the SLA.

(3) Seniority of eligible candidates when all other qualities are equal.

For managers who wish to transfer to the new or vacant site on a

permanent basis, the SLA and manager will work to ensure the least

amount of disruption between the old and new site.

3. When new seasonal locations become available, managers already assigned to a seasonal location shall be given preference when it creates full year employment. When opening the additional facility, the manager must continue to operate the current facility and allow no more than one-week break in service between the old and new site.

4. A manager transferring to a new location is responsible for the cleanliness of the current facility upon departure. SLA shall inspect and determine if the facility is properly cleaned using an inspection checklist. If not, arrangements will be made for the facility to be cleaned, and the exiting manager shall be charged accordingly.

5. TEMPORARY LOCATIONS

A. If circumstances require, the SLA may place a facility under temporary management.

(1) If a manager wishes to retain primary site and temporarily cover vacant site, they will notify the SLA and a decision/selection will be made with consideration given to the following: displaced managers whose facilities are closed or have low profitability due to size and location may be given first opportunity. Other considerations include availability and ability to operate more than one facility based on performance with primary facility.

(2) All sales, expenses, and income records derived from a temporary assignment shall be maintained and reported separately from those incurred in a manager’s permanent facility.

(3) Individuals selected for a temporary assignment shall be in good standing with BEP.

(4) All temporary managers must sign a standard temporary operating agreement. The temporary operating agreement will clearly define the responsibilities of the SLA and the manager with respect to the terms and conditions governing the effective and efficient operation of the facility. A copy of the initial inventory will be provided. All temporary managers must abide by and comply with the rules and regulations governing the BEP.

(5) A temporary agreement will be in effect until a permanent manager is assigned. A temporary agreement shall extend for an initial period of not greater than six (6) months unless it is determined by the SLA with input from the Committee of Blind Managers, that it is in the best interest of the BEP to extend the temporary agreement for an additional 6 months. Review will take place for each site prior to the expiration of Agreements.

(6) At each semi-annual Committee of Blind Manager meeting, the SLA shall provide a list of all BEP facilities being operated on a temporary basis to the Committee.

SECTION 6: TERMINATION OF LICENSES

1. A license shall be issued to an individual for the operation of a vending facility for an indefinite period of time while actively managing a BEP facility. This license may be subject to suspension or termination if, after affording the manager an opportunity to participate in a corrective action plan and for a full evidentiary hearing, the SLA finds any of the following:

A. Failure of the manager to operate the BEP facility according to the operating agreement between the facility manager and the SLA and other rules and regulations of the SLA;

B. Failure to operate the facility according to health and sanitation laws;

C. Failure to maintain equipment in good repair;

Failure to file required financial and other records with the SLA or preserve them for a specified time and/or refusal to permit a review or audit or records by SLA;

Failure to consistently pay suppliers;

Defrauding any agency of the government (including SLA) or any supplier regarding any financial obligation or delinquency in paying taxes, fees, or assessments to any governmental agency, including the SLA;

Misconduct by the facility manager in the operation of the facility, including but not limited to the use of alcoholic beverages, or illegal drugs on the premises;

Operation of a BEP facility in such a way that the SLA’s investment is obviously endangered as a result of fraud, waste and abuse;

Sexual harassment of employees, customers, or those under the facility manager’s direction;

Determination by the SLA that the facility manager no longer has the skills and abilities to perform essential functions necessary to manage a BEP facility;

Use of the facility to conduct unlawful activities;

Failure to maintain the required insurance coverage;

Failure to personally operate and manage the vending facility;

Inability of the manager to maintain a positive working relationship with building management.

Failure to participate in Manager semi-annual meetings and upward mobility training without an excused absence for more than 3 consecutive occurrences.

2. Written notice shall be given in an accessible format or manager’s preferred method of communication to any manager who is in jeopardy of having their license suspended or terminated. The reason for the possible suspension or termination shall be stated, and the manager shall be informed of their right to an administrative review and/or full evidentiary hearing. All such reviews or hearings shall be held in accordance with the provisions contained in this Chapter.

3. Managers may be afforded a corrective action period beginning with a probationary letter provided in an accessible format or preferred method of communication outlining specific violations, the length of the probationary period, the remedy required and the consequences of inaction. This probationary letter shall be reviewed with the manager and BEP staff, with both parties signing the probationary agreement plan. Failure to reach agreement could result in action leading to the manager’s license revocation.

4. Individuals who do not qualify for the program because of improvement in vision rendering them not legally blind, shall be required to submit a resignation.

SECTION 7: VENDING FACILITY EQUIPMENT AND INITIAL STOCK

1. The SLA or Vocational Rehabilitation shall provide adequate initial stock when the vending facility is established. The dollar value of the initial stock will be recorded and charged to the manager. The manager will be expected to reimburse SLA within the first year of operation unless an agreement is already in place for the manager to leave an inventory equal in value when they terminate their association with the facility.

The SLA shall provide suitable equipment when the vending facility is established. Costs for replacement or repairs of worn out and obsolete equipment shall be paid by the SLA with set-aside funds. Each manager shall take reasonable care of equipment and maintain it in operating condition. A $200 per item deductible for repairs of equipment shall be paid by the manager. This cost may be deducted under “miscellaneous expense” on the weekly report form. The SLA will be kept apprised of repairs and arrange for the removal of equipment to be replaced.

Any equipment to be purchased by a manager must be approved in advance by SLA if reimbursement is expected. If equipment is purchased with this approval, equipment shall become part of the equipment inventory of the facility and will remain at the facility upon departure of the manager. The manager will notify the SLA if they intend to purchase equipment and retain ownership, in which case the manager is responsible for maintaining this equipment. Upon departure from the facility, manager will be responsible for the removal or transfer of this equipment.

4. The SLA shall furnish initial petty cash sufficient to enable the manager to commence operation of the business. Upon termination of the facility operation, the manager shall return the same amount of cash to the SLA.

5. The rights and title to equipment shall remain with the SLA.

SECTION 8: ASSISTANCE AND IN-SERVICE TRAINING PROVIDED TO MANAGERS

The SLA shall provide each manager with assistance and in-service training necessary for obtaining the maximum financial return and to ensure that the operation of the business will provide good service to the public and preserve the employment opportunities for successive blind persons. Such programs may include upward mobility training in accordance with 34 CFR §395.11. The State Committee of Blind Managers will actively participate in the development of training programs for managers. All licensed managers must participate in one SLA training program or its equivalent per year offered by the SLA in order to be in good standing for promotion. The SLA and the Committee of Blind Managers will identify equivalent training for the purposes outlined in this section.

2. The SLA shall provide in-service training to managers in the keeping of accounts, selection and purchase of merchandise, maintenance of clean, attractive facilities and adoption and use of sound business practices and methods and any other training that the SLA and Committee of Blind Managers determine to be of benefit to managers.

SECTION 9: RESPONSIBILITIES OF LICENSED FACILITY MANAGER

1. The manager is responsible for having the facility open for business on the days and during the hours specified in the operating agreement. Hours of operation shall be set by joint agreement of the facility manager, SLA and the agency in charge of the buildings where the business is operated.

2 The manager shall operate the facility business on a cash basis, except for such supplier credit accounts as may be established or authorized by the SLA.

3. The manager shall be accountable to the SLA for the proceeds of the business and shall handle the proceeds, including payments to suppliers and deposits of funds, in accordance with instruction from the SLA. Discounts received for prompt payment of invoices shall be treated as a reduction of the cost of merchandise purchased.

4. The manager shall carry on the business of the facility in compliance with applicable health laws and regulations.

5. The manager shall maintain a neat, business-like appearance while working at the facility and will operate the facility in an orderly, business- like manner.

6. The manager shall make alterations or changes to the location only with written approval of the SLA.

7. SLA must be notified prior to any closing of the facility other than what is outlined in the operations agreement.

8. The manager shall provide for substitute operation of the facility as may be necessitated by the manager’s absence for illness, vacation, or other absence. The salary of the person who substitutes for the manager, or that of other emergency or temporary help, shall be paid as an operating expense of the facility.

9. The manager shall maintain a positive working relationship with management and customers of the location wherein the facility is located.

10. The manager shall maintain an inventory of equal or greater value than the initial inventory in order to ensure continuation of service and maintenance of a viable business operation. Retail price of merchandise at each facility shall follow the general price pattern prevailing in the immediate locality. A price listing must be submitted to the SLA by February 1 of each year.

11. The manager shall operate the facility in a manner, which will maintain the minimum annual net profit margin, which is negotiated and documented in the operations agreement.

Merchandise shall be fresh and clean. Unsaleable items shall be removed from the facility.

The manager shall not extend credit to customers.

The manager shall not permit loitering by any persons in the area of the facility.

In all instances in which licenses are issued for the operation of automatic vending machines as part of the facility, the manager shall be responsible for maintaining sanitary conditions. Machines and the surrounding area must be cleaned on a regular basis.

The manager shall observe sanitation regulations regarding personal activities such as smoking, eating, and drinking within the facility area.

The manager shall not be under the influence of intoxicating substances during business hours and shall avoid any actions that interfere with the maintenance of good health and the performance of duties.

The manager shall not take part in or allow gambling activities or games of chance in or about the premises of his/her facility. Selling of state lottery tickets shall be allowed if so licensed.

The manager shall not be liable for any monthly electrical utility costs associated with the facility.

Each Manager shall be required to complete, on approved forms, a weekly report detailing daily business activities. These forms shall be forwarded once a month so that the SLA receives them by the 15^th of the following month.

The facility shall display a sign provided by the SLA indicating sponsorship.

Each manager shall be required to participate in biannual meetings sponsored by the Committee of Blind Managers.

As part of manager performance reviews, each Manager will be expected to participate in upward mobility training which include semiannual trainings, nationally sponsored Randolph-Sheppard trainings (virtual or live), webinars and other professional development opportunities.

SECTION 10: SETTING ASIDE OF FUNDS

1. The SLA shall establish in writing the extent to which funds are to be set aside from the net proceeds of vending facilities; and, to the extent applicable, from vending machine income under 34 CFR §395.8(c).

2. Funds may be set aside under this section only for the purposes of:

A. Maintenance and replacement of equipment;

B. Purchase of new equipment;

C. Management services;

D. Fair minimum return to managers; or

E. Establishment and maintenance of retirement or pension funds, health insurance contributions, paid sick leave and vacation time, if it is determined by a majority vote of managers and those who are licensed and authorized to operate a facility after the agency provides each manager information on all matters relevant to the proposed purposes.

3. Adequate records shall be maintained to support the reasonableness of the charges for set-aside referred to this section.

4. Set-aside may be established, with the active participation of the State Committee of Blind Managers and subject to the approval of Rehabilitation Services Administration (RSA).

5. Determination of the net proceeds shall be made by subtracting all expenses including, but not limited to, merchandise purchased for resale, insurance(s), and wages, but shall not include pay to the manager or set-aside payments.

6. During any monthly period when net proceeds are less than an amount equal to the current federal minimum wage rate multiplied by the number of hours the manager was present in the vending facility (maximum of 40 hours per week) and during which the facility was open for business, the requirement to pay the set-aside assessment may be waived.

7. Charges for the items listed in Section (2) above shall be determined in the following manner:

A. Equipment shall be replaced or repaired at the discretion of the SLA in the manner which is most cost effective while maintaining the facility’s current capabilities.

B. The purchase of new equipment shall be at the discretion of the SLA and in a manner that will maintain the facility’s current capabilities or enhance future profits to the location.

C. Prior to purchase of management services other than those provided by the program, the SLA shall verify whether such charges are reasonable in comparison with fees charged for like services throughout the area in which service is to be performed. Management services are generally limited to necessary supervisory and inspection services, merchandising and bookkeeping assistance, display and other business techniques, and practices to improve the operation of the vending facility.

8. The purpose of fair minimum return is to ensure an equitable financial return to the manager when the net proceeds of the site fail to do so. When a fair minimum return is established, the SLA, in its discretion, may augment the net proceeds by an amount necessary to bring the monthly income of the manager up to the fair minimum return. Wages paid to family members may not exceed one and one half (1 ½) times the prevailing minimum wage for 40 hours per week if fair minimum return is requested.

Fair minimum return is defined as an amount equal to the current federal minimum wage multiplied by the number of hours during which a manager was present in the vending facility (up to a maximum of 40 hours per week) and during which the facility was open for business; fair minimum return is computed by averaging the net proceeds for the number of weeks in the monthly reporting period. Since inventory change and other operating expenses can affect net proceeds, such factors shall be considered when calculating fair minimum return. If the business is seasonal in nature and like businesses normally would not provide the established minimum return, then the fair minimum payment shall not apply.

9. Managers may use checking accounts for receipts and disbursements pertinent to the operation of the facility. Such accounts will be used exclusively for the fiscal affairs of the facility, and the manager will not co-mingle personal or other funds in this account except to the extent that such funds represent equity in the business.

10. It is the responsibility of the manager to make certain that the rate of cash withdrawals does not exceed the rate of net profit to the facility. It is also the manager’s responsibility to provide cash reserves for contingencies such as vacation and sick leave or other purposes as may be necessary for the proper operation of the facility.

SECTION 11: DISTRIBUTION ANDUSE OF INCOME FROM VENDING MACHINES ON FEDERAL PROPERTY

The distribution and use of income from vending machines on federal property shall be made in accordance with 34 C.F.R. §395.8

SECTION 12: EMPLOYEES

1. Each manager shall determine if it is necessary to hire employees. The manager shall review need with SLA. If it is determined that there is not sufficient need (based upon number of customers and size of facility), wages paid to an employee shall not be allowed as an operating expense for the business. Factors considered include disability related accommodations, change in facility size or customer base. When possible, such employees shall be blind. All facilities will operate as competitive integrated worksites. The manager shall not depend on the goodwill or friendly services of the employees of the building to operate the facility during any absence.

2. Each manager shall locate and train at least one substitute for vacation, during illness or any period when an emergency substitute is necessary. The manager shall provide SLA with the name, address and telephone number of substitutes.

SECTION 13: ELECTION, ORGANIZATION AND FUNCTION OF STATE COMMITTEE OF BLIND MANAGERS

1. All facility managers are members of the State Committee of Blind Managers. The State Committee shall meet at least twice a year and at any other time deemed necessary by the SLA or the facility managers. Attendance at all meetings shall be one measure of good standing for transfer or promotion. Between regular meetings of the State Committee, functions can be carried on through sub-committees or individual members designated by the Committee Chair for that purpose.

2. The SLA shall provide for the biennial election of an Executive Committee which, to the extent possible, shall be fully representative of all managers in the program on the basis of geography and facility type with a goal of providing for proportional representation of managers on federal property and managers on other property. Participation by any manager in any election shall not be conditioned upon the payment of dues or any other fees.

3. The State Committee of Blind Managers shall:

A. Actively participate with the SLA in major administrative decisions; policy and program development decisions affecting the overall administration of the State's Business Enterprise Program, including the set-aside rate;

B. Receive and transmit to the SLA grievances at the request of managers and serve as advocates;

C. Actively participate with the SLA in the development and administration of a system for the transfer and promotion of managers;

D. Actively participate with the SLA in the development of training and retraining programs for managers; and

E. Sponsor, with the assistance of the SLA, meetings and instructional conferences for managers within the State.

SECTION 14: ADMINISTRATIVE REVIEW, EVIDENTIARY HEARING, ARBITRATION OF MANAGERS’ COMPLAINTS

1. Administrative Review. A facility manager or their designee (who may be a member of the State Committee of Blind Managers) may request administrative review of a state agency action arising out of the operation or administration of the vending facility program with which the manager is aggrieved. This request must be made in writing within fifteen (15) days of the occurrence of the SLA action.

A. The administrative review shall be held at a time and place convenient to the manager requesting such review within fifteen (15) days of receipt of the request for review unless the manager requests a postponement. The administrative review shall be conducted by a member or members of the DBVI staff who did not in any way participate in the agency action at issue.

B. If the manager makes a written request reasonably in advance of the review and if the SLA determines it is necessary to ensure full participation by the manager in the review, transportation, reader, or other communication services shall be arranged for the manager by the SLA.

C. The SLA shall include in its administrative record the request for review, any documentation offered by the manager in support of their claims, and its written decision rendered after administrative review.

D. If the manager is dissatisfied with the administrative review decision, they may request a full evidentiary hearing within fifteen (15) days of receipt of the administrative review decision. The request must be made in writing, either hard copy or electronically.

2. Evidentiary Hearing.

A. A manager or their designee may request an evidentiary hearing instead of an administrative review within thirty (30) days of the SLA action complained of or as an appeal from an unfavorable administrative review decision within fifteen (15) days of receipt of such unfavorable review decision.

B. The manager shall have the opportunity:

(1) to examine all documents and records used at the hearing, either at the time of hearing or, if they so desire, 3 days prior to the hearing;

(2) at their option to present their case for themselves or with the aid of others, including legal counsel;

(3) to bring witnesses;

(4) to establish all pertinent facts and circumstances;

(5) to advance any arguments without undue interference; and

(6) to question or refute any testimony or evidence, including an opportunity to confront and cross-examine adverse witnesses.

C. The evidentiary hearing shall be conducted by a board (“Hearing Board”), which shall consist of three persons, one to be appointed by the Division, one to be chosen by the manager who requested the hearing, and the third to be chosen by the other two members. The decision of the Hearing Board shall be final except that the manager may file a complaint with the Secretary of Education as provided in this Chapter.

D. All evidentiary hearings shall

(1) be conducted privately and open only to the manager, friends, witnesses, legal counsel or others whom the manager wishes to be present or to members of the SLA staff or others selected by the Hearing Board for their planned participation in the hearing;

(2) be conducted informally without technical rules of evidence, even though the requirements of due process shall be met in accordance with the Maine Administrative Procedures Act, 5 M.R.S. §9057 and witnesses shall be sworn;

(3) be opened by the Hearing Board's spokesperson who shall make a statement of points at issue, give all participants an opportunity to present oral or written testimony or documentary evidence and to offer rebuttal, question witnesses, examine all evidence presented at the hearing and establish competency of witnesses offering subjective or technical opinions;

(4) be recorded by stenographic or mechanical recording of proceedings which shall be either transcribed for filing or filed by tape or disk in a State office, to be available to members of the Department, to the manager or to their representative, (if authorized by the manager in writing to act for them) together with all documentary evidence submitted as exhibits at the hearing;

(5) be concluded when the Hearing Board, the manager and/or their representative, and the SLA representative are satisfied that all available evidence has been introduced and properly examined; and

(6) result in a decision based exclusively on evidence or testimony presented at the hearing.

E. If the manager makes a written request for a reasonable accommodation in advance of the hearing and if the Hearing Board determines it is necessary to ensure full participation by the manager in the hearing, transportation, reader or other communication services shall be arranged for the manager by the SLA.

3. Arbitration. This applies to Federal property.

A manager or their designee may request arbitration by the U.S. Secretary of Education if they are dissatisfied with any action taken or decision rendered as a result of an evidentiary hearing. The manager’s complaint shall be accompanied by all available supporting documents, including a statement of the decision that was rendered and the reasons in support thereof, and must be filed with either the SLA or the Secretary. The arbitration process will be controlled by the provisions of 20 U.S.C. §§ 107d-1, 107d-2 and 34 C.F.R. §395.13.

SECTION 15: DISPUTE RESOLUTION

A. INTERAGENCY

In instances of interagency conflict, the process and procedures as outlined in this section are to ensure services and opportunities outlined in State statute and these Rules are neither delayed nor denied due to the conflict. These conflicts may include issue of compliance with federal and State statutory and regulatory expectations.

The following steps shall be taken to resolve an interagency dispute:

(1) All attempts should be made to resolve disputes at the lowest operational level. This may include the BEP Administrator, Division Director, Facility point of contact or other Persons.

(2) When disputes cannot be resolved at the lowest operational level in a reasonable time, they shall be referred in writing to the Bureau of Rehabilitation Services Director.

(3) If resolution is not achieved within thirty (30) calendar days of receipt, the matter shall be referred to the Commissioner of the Department of Labor, or equivalent, and the State Agency and the entity responsible for the public property, for resolution.

(4) In lieu of or in addition to, any of the above steps, the parties may mutually agree to engage in alternative dispute resolution, including mediation or arbitration.

B. CONTINUATION OF SERVICES DURING DISPUTE RESOLUTION.

(1) A licensed manager shall be allowed to continue operations during a dispute resolution process.

(2) The SLA will not enter into a new permit with a licensed manager until the dispute resolution process is resolved, unless the parties agree that the permit may proceed notwithstanding the dispute.

SECTION 16: ACCESS TO PROGRAM FINANCIAL INFORMATION

The SLA shall provide access to all financial data relevant to the operation of the Business Enterprise Program, including quarterly and annual financial reports, if such disclosure does not violate applicable federal or state laws pertaining to the disclosure of confidential information. All information including program data, insofar as is practicable, shall be transmitted to licensed vendors in Braille, tape or their desired media format.

SECTION 17: EXPLANATION TO MANAGER OF RIGHTS AND RESPONSIBILITIES

The SLA will furnish to each manager copies of documents relevant to the operation of a vending facility, including the rules and regulations and operations agreement in an accessible format, during the initial exploration phase of BEP as their employment goal.

SECTION 18: FAMILIARITY WITH SITE REQUIREMENTS

1. Before a manager is issued a license to operate a vending facility, the SLA shall review policy and procedures contained herein, and all applicable regulations and standards of the agency having charge of the building where the business is located, shall be read and explained to the facility manager. The facility manager shall be given ample opportunity to understand the relationships, which shall exist between him/her and the SLA.

2. After becoming familiar with all the regulations and standards, the facility manager shall attest to this fact in writing. This statement shall be made in duplicate in an accessible format.

SECTION 19: STATE SALES TAX

State sales tax is to be collected in accordance with State of Maine Sales and Use Tax Law and regulations issued by Maine Revenue Services. Facility managers are required to submit the amount of sales tax collected under their tax number in accordance with Maine law.

SECTION 20: VACATION

The vacation period of facility managers will be by joint agreement with the manager, building manager and the SLA. Generally, arrangements should be made for the facility to be open during the individual manager’s vacation period, except when specific arrangements are made with the parties involved. No vacation request shall be unreasonably or arbitrarily denied.

SECTION 21: INSURANCE*

1. In order to safeguard the interest of the facility manager and the public, liability insurance is required for all locations. Minimum coverage recommended is coverage of personal injury on the premises, product liability and medical payment as a result of an accident occurring to members of the public on premises. Minimum limits shall be pursuant to the state regulations. No other liability insurance shall be mandated to the manager unless required by law.

2. It shall be the duty of the facility manager to report in writing as soon as practicable, to insurer and to SLA the occurrence of any accident or if a claim or suit is brought against the manager.

SECTION 22: MANAGER EVALUATIONS

1. Each facility manager shall be evaluated, using a written evaluation form, by a representative of the SLA at least one time per year after the probationary period. Areas of evaluation may include sanitation, merchandising, customer relations, personal appearance, sales technique, accuracy of monthly reports, profit margins, and general efficiency. The purpose of this evaluation is to assist managers in areas of their business which need improvement. Evaluations may also serve as a basis for termination of license or as a basis for promotion to other facilities. Facility managers shall receive a copy of the evaluation; the original shall be kept on file by the SLA.

2. The SLA, at any time, may review all financial information relative to the location. This may include, but not be limited to, merchandise receipts, payroll records, and sales tax payments.

3. The SLA has the right to close any facility that operates at a loss for a period of six months or longer.

SECTION 23: CIVIL RIGHTS

No person participating in the Business Enterprise Program shall be subjected to discrimination by the SLA on the basis of race, color, religion, gender, age, national origin, physical or mental disability, or sexual orientation, political affiliation and in compliance with the Maine Human Rights Act.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. §§1418-F through 1418-M.
• EFFECTIVE DATE: July 12, 1987
• AMENDED: September 28, 1988
• EFFECTIVE DATE (ELECTRONIC CONVERSION): May 19, 1996
• NON-SUBSTANTIVE CORRECTIONS: August 20, 1997 - correction of agency names, minor spelling and formatting, correction of header.
• NON-SUBSTANTIVE CORRECTIONS: November 10, 1997 - corrections to agency names, statutory citations; chapter moved to Division of Blind and Visually Impaired.
• NON-SUBSTANTIVE CORRECTIONS: January 22, 1998 - corrected unit number on first page from 152 to 150.
• REPEALED AND REPLACED: August 7, 2006 - filing 2006-353
• REPEALED AND REPLACED: December 13, 2023 – filing 2023-247

Chapter 101 Vocational Rehabilitation Services For Individuals Who Are Blind or Visually Impaired

Code Me. R. 12-150 Ch. 101 Rules Governing Vocational Rehabilitation Services for Individuals Who Are Blind or Visually Impaired {#sec-12-150-ch.-101 omnilex-key=us-me-regs-official--dept-labor--12-150 Ch. 101}

Section Page

Section 1: Purpose and General Requirements of the Division for the Blind and Visually Impaired Vocational Rehabilitation Program 4

Section 2: Confidentiality 5

1. Informed Written Consent 5

2. Release to Individual with Visual Impairment or

His/Her Representative 6

3. Release to Other Programs 6

4. Release for Audit, Evaluation or Research 6

5. Subpoena for Release of Records or For Testimony 7

Section 3: DBVI VR Appeals Process 7

1. Informal Review 8

2. Continuation of Services Pending Completion of the Hearing 8

3. Time Frames 8

4. Mediation 8

5. Due Process Hearing 9

6. Civil Action 10

Section 4: Application and Eligibility 10

1. Application for DBVI VR Services 10

2. Eligibility Criteria 10

3. Presumption of Benefit 10

4. Timeframe for Making an Eligibility Determination 11

5. Trial Work Experiences 11

6. Presumption of Eligibility 11

7. Use of Existing Information 12

8. Ineligibility 12

Section 5: Comprehensive Assessment of Rehabilitation Needs 12

1. Source of Information 13

2. Elements of a Comprehensive Assessment of Rehabilitation Needs 13

Section 6: Order of Selection 14

1. Criteria for Assignment of Priority Category 14

2. Individuals Not Meeting the Order of Selection Criteria 15

Section 7: Individualized Plan for Employment (IPE) 15

1. Elements of an IPE 15

2. Standards for Development and Review of the IPE 16

3. Options for Developing an IPE 16

4. Required Components of an IPE 16

Section 8: Comparable Services and Benefits and Participation by Individuals

with Visual Impairment in the Cost of VR Services 17

1. Client Financial Contribution 17

2. Comparable Services and Benefits 17

3. Comparable Services and Benefits Exemptions 18

Section 9: Vocational Rehabilitation Services 18

1. Assessment Services 19

2. Counseling and Work-Related Placement Services 19

3. Referral and Other Services 19

4. Physical and Mental Restoration Services 19

5. Post-Secondary, Vocational and Occupational Training Services 19

6. Interpreter, Reader and Other Auxiliary Services

and Technological Aid 22

7. Occupational Licenses, Equipment, Self-Employment 22

8. Self-Employment 22

9. Time-Limited on-going Support Services 23

10. Post-Employment Services 23

11. Rehabilitation Technology Services 23

12. Transition Services including Pre-Employment 23

13. Supportive Services 24

14. Other Goods and Services 24

Section 10: Closure 24

1. Ineligibility 24

2. Closure for Reasons Other than Ineligibility 26

3. Closure of Clients Determined to be Rehabilitated 27

Closure of Clients in Supported Employment 28

Periodic Review 28

SECTION 1: PURPOSE AND GENERAL REQUIREMENTS OF THE DIVISION FOR THE BLIND AND VISUALLY IMPAIRED VOCATIONAL REHABILITATION PROGRAM (hereinafter referred to as “DBVI” or the “Division”)

All printed information produced by the Division for the Blind and Visually Impaired will be available , upon request , in accessible formats based on the client’s documented visual impairment.

The Maine DBVI Vocational Rehabilitation (“VR”) program assists eligible individuals who have a visual impairment (and in addition may include physical and/or mental impairment) prepare for and achieve an employment outcome. "Employment outcome" means entering, retaining or advancing in full-time competitive integrated employment; part-time competitive integrated employment (including customized and supported employment); the practice of a profession; or self-employment. The VR process is based upon an Individualized Plan for Employment (IPE) which is oriented to the achievement of a suitable vocational goal consistent with the individual’s strengths, resources, priorities, concerns, abilities, capabilities, interests and informed choice. Services provided to individuals with visual impairment must be necessary to overcome the vocational impediment and must be provided as cost effectively as possible, and shall be of sufficient quality to meet individual needs.

The DBVI VR program is operated in compliance with the federal Rehabilitation Act of 1973 , as amended and codified at 29 U.S.C.§720 et seq. (“Act”); Title 34 CFR 361 issued in the Federal Register August 19, 2016; and Title 26 M.R.S.A. §1418.

1. Eligibility is determined without regard to sex, race, creed, age, color, gender identification or national origin. There are no residency requirements, durational or other, which would exclude from services an otherwise eligible individual who is living in the state.

2. Throughout the eligible individual’s rehabilitation program, every opportunity will be provided to the individual to make informed choices regarding the rehabilitation process. Documentation of opportunities for making informed choices will be kept in the individual’s case record.

3. The VR program shall establish and maintain a case record for each applicant for, and recipient of, vocational rehabilitation services, which include data necessary to comply with VR program and federal requirements.

4. In the purchase of goods or services for persons with visual impairment, counselors shall comply with applicable regulations of the Maine Department of Labor and the Department of Administrative and Financial Services.

A. Case service expenditures require written authorization prior to the initiation of the service or the purchase of any equipment. Oral authorizations are permitted in emergency situations but must be confirmed promptly in writing and forwarded to the provider.

B. Goods and services will be provided subject to the statewide availability of funds. Goods and services will be explored by the individual with assistance from the DBVI VRcounselor and the individual will be involved in the choice of who will provide goods and services. DBVI reserves the right to use community rehabilitation providers who meet state or national accreditation standards.

5. Maine DBVI shall process new referrals upon receipt in an equitable manner and will attempt to contact the individual within five (5) working days.

6. When appropriate, VRcounselors shall provide the referral necessary to support individuals with visual impairment in securing needed services from other agencies and organizations.

7. Each applicant or eligible individual, being provided vocational rehabilitation services, shall be informed of the procedure for requesting a review and a re-determination of agency action concerning the furnishing or denial of services, including the names and addresses of individuals with whom appeals may be filed and of the availability of the Client Assistance Program.

SECTION 2: CONFIDENTIALITY

1. Informed Written Consent

All client/applicant information acquired by the VR program shall remain the property of DBVI and shall only be used and released for purposes directly connected with the administration of the VR program. Use and release of personal information acquired by DBVI VR shall conform with applicable state and federal regulations, including complying with performance accountability requirements under the Act, to include 29 U.S.C. §726.

For purposes of this policy, informed written consent shall:

A. be in language that the individual or his/her representative understands;

B. be signed and dated by the individual or his/her representative;

C. be specific in designating DBVI as the agency or person authorized to disclose information;

D. be specific as to the nature of the information which may be released;

E. specifically designate the parties to whom the information may be released; and

F. be specific as to the purpose(s) for which the released information may be used.

2. Release to Individual with Visual Impairment or His/Her Representative

Upon informed written consent by the individual or his/her representative, all information in the case record shall be made available in a timely manner, except:

A. Medical, psychological or other information that DBVI believes may be harmful to the individual. This information may not be released directly to the individual, but shall be provided through a third party chosen by the individual, which may include, among others, an advocate, a family member, or a qualified medical or mental health professional, unless a representative has been appointed by a court to represent the individual, in which case the information must be released to the court-appointed representative; and

B. Information obtained from outside DBVI may be released only under the conditions established by the outside agency, organization or provider.

3. Release to Other Programs

Upon informed written consent of the individual with visual impairment or his/her representative, DBVI may release to another agency or organization information that may be released to the individual but only to the extent that the other agency demonstrates that the information is necessary for its program.

A. DBVI must release personal information, with or without consent of the individual, if required by state or federal law; in response to investigations connected with law enforcement, fraud, or abuse (except where expressly prohibited by federal or state laws or regulations); or in response to an order issued by a judge, magistrate, or other authorized judicial officer.

B. DBVI may release personal information without informed written consent of the individual in order to protect the individual or others when the individual poses a threat to his/her safety or the safety of others except for HIV test results, which may not be released without informed written consent of the individual with visual impairment.

4. Release for Audit, Evaluation or Research

At the discretion of the Division Director, personal information may be released to an organization, agency, or individual engaged in audit, evaluation or research only for purposes directly connected with the administration of the DBVI VR program, or for purposes which would significantly improve the quality of life for individuals with visual impairment, and only if the organization, agency or individual assures that:

A. The information will be used only for the purposes for which it is being provided;

B. The information will be released only to individuals officially connected with the audit, evaluation or research;

C. The information will not be released to the involved individual;

D. The information will be managed in a manner to safeguard confidentiality; and

E. The final product will not reveal any personal identifying information without the informed written consent of the involved individual, or his/ her representative.

5. Subpoena for Release of Records or For Testimony

An employee shall not testify in court or in an administrative hearing, nor release records without the consent of the individual with visual impairment, unless served with an appropriate subpoena and ordered to do so by a judge or hearing officer.

SECTION 3: DBVI - VR APPEALS PROCESS

An applicant for or recipient of vocational rehabilitation services who is dissatisfied with any determination concerning the denial of services may request (or, if appropriate, may request through the individual’s representative) a timely review of the determination. DBVI shall make reasonable accommodation to the individual's visual impairment in the conduct of the appeals process. Written notification of appeal rights will be provided to the individual at the time of application, when assigned an order of selection category, when an IPE is developed, and whenever DBVI VR services are reduced, suspended, or terminated. Notification will include the name and address of the person with whom an appeal may be filed and information regarding the Client Assistance Program.

Mediation and/or Due Process Hearings are provided at no cost to the individual; however, costs related to legal representation are not covered by DBVI.

1. Informal Review

Whenever possible, DBVI will attempt to resolve conflicts informally prior to Mediation or a Due Process Hearing. An individual may request a meeting with the VRcounselor, the appropriate supervisor, and/or a Client Assistance Program representative, if desired, to explore options for resolving any conflicts. An individual may request Mediation or a Due Process Hearing immediately without having to participate in the informal process.

2. Continuation of Services Pending Appeal

Pending a final determination following an appeal hearing, the Division may not suspend, reduce, or terminate services being provided under an IPE, unless the services were obtained through misrepresentation, fraud or collusion or the individual, or the individual’s authorized representative requests suspension, reduction or termination of services.

3. Time Frames

The formal appeal must take place within (60) sixty days from when the formal request is made to the Director. The time frames listed under Section 4. Mediation and 5. Due Process Hearing may be waived if both parties agree to an extension of time in order to conduct the Mediation or hearing, and render a decision.

4. Mediation

A. Mediation is a voluntary process conducted by a qualified and impartial mediator. At any point during the Mediation process, either party, or the mediator, may elect to terminate the Mediation. Mediation is provided at no cost to the individual, but costs related to legal representation are not covered by DBVI.

B. An individual must request Mediation within thirty (30) calendar days of the agency notice regarding the provision or denial of services that are in question. The request shall be in writing and shall describe the basis for the grievance. The request should be sent to the Director of DBVI who will immediately forward it to a qualified mediator.

C. Upon receipt of the request, the mediator will commence a Mediation meeting within fifteen (15) calendar days. The Mediation shall be held at a location that is convenient to the parties to the dispute.

D. Any agreement reached in the Mediation process shall be set forth in a written Mediation agreement and shall be signed by both parties. Copies of the signed agreement must be sent to both parties.

E. Discussions that occur during the Mediation process shall be confidential and may not be used as evidence in any subsequent Due Process Hearing.

F. The individual may be represented at the Mediation, including, but not limited to, representation by the Client Assistance Program.

G. The Mediation process may not be used to deny or delay the individual’s right to pursue resolution of the dispute through a Due Process Hearing within the specified time period.

5. Due Process Hearing

A. A Due Process Hearing is a proceeding whereby an individual who is dissatisfied with any determination concerning the provision or denial of VR services may seek a review of agency action before a hearing officer.

B. The individual must request Due Process Hearing within thirty (30) calendar days of the agency notice regarding the provision or denial of service

C. If no request for a Due Process Hearing is made within thirty (30) calendar days, the agency decision becomes final.

D. The request for Due Process Hearing shall be in writing and shall describe the basis for the grievance. The request must be sent to the Director of DBVI who will immediately forward the request to a qualified hearing officer. DBVI will accommodate an individual’s visual impairment and offer assistance, if appropriate, in this process.

E The due process hearing shall be conducted within sixty (60) calendar days of receipt of the request for a Due Process Hearing.

F. A Due Process Hearing shall be conducted by an impartial hearing officer identified jointly by the Director of DBVI and the State Rehabilitation Council of DBVI.

G. The DBVI VR program may not deny or dismiss a request for Due Process Hearing unless the individual or his/her representative:

(1) withdraws the request in writing; or

(2) is adjudged by the hearing officer to be in default for failure to appear at the hearing without good cause.

H. The Due Process Hearing shall be conducted and will include an opportunity for the individual or the individual’s representative to present witnesses and relevant evidence. A decision will be issued in accordance with The Maine Administrative Procedure Act.

I. The Due Process Hearing officer shall issue a written decision containing findings and grounds for the decision within thirty (30) days of the completion of the hearing.

J. The hearing officer’s decision becomes final unless one of the parties requests a Civil Action.

6. Civil Action

Any party who disagrees with the decision resulting from the Due Process Hearing has the right to file a petition in Superior Court under Rule 80C of the Maine Rules of Civil Procedure or a civil action for judicial review in a state of federal court of competent jurisdiction under the Act 29 U.S.C. §722(c)(5)(j).

SECTION 4: APPLICATION AND ELIGIBILITY

1. Application for DBVI VR Services

An applicant is anyone who signs a dated application or dated document requesting services. Any individual who applies for services shall undergo an assessment for determining eligibility, with the individual being notified in writing of the results. Applicants shall receive written notification of appeals rights along with the determination, including the name and address of the person with whom an appeal may be filed and availability of the Client Assistance Program.

2. Eligibility Criteria

An individual is eligible for DBVI VR if the individual:

A. has a significant visual impairment, which for the individual constitutes or results in a substantial impediment to employment; Note: Substantial impediment to employment means that a visual impairment hinders an individual from preparing for, engaging in, retaining, or advancing in employment consistent with the individual’s abilities and capabilities and

B. requires vocational rehabilitation services to prepare for, secure, retain, advance or regain employment consistent with the applicant’s unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice. Required VR services must be necessary to overcome disability related barriers. Lack of resources by itself does not constitute a disability related barrier.

3. Presumption of Benefit

It shall be presumed that the individual can benefit in terms of an employment outcome from vocational rehabilitation services, unless the DBVI VR counselor can demonstrate by clear and convincing evidence that such individual is incapable of benefiting from vocational rehabilitation services due to the severity of the visual impairment of the individual.

4. Timeframe for Making an Eligibility Determination

Eligibility for DBVI VR services shall be determined within a reasonable period of time, not to exceed sixty (60) days after the application for services has been received unless the applicant is notified in writing of the following:

A. That exceptional and unforeseen circumstances beyond the control of the VRcounselor preclude the counselor from completing the determination within the prescribed timeframe and the applicant agrees that a specific extension of time is warranted; or

B. That trial work experiences are necessary to determine if the individual is capable of benefiting from vocational rehabilitation services in terms of an employment outcome.

5. Trial Work Experiences

Before making a determination that an individual is incapable of benefiting in terms of an employment outcome from vocational rehabilitation services, the DBVI VR counselor shall explore the individual’s abilities, capabilities, and capacity to perform in realistic work situations, through a written plan of trial work experiences with appropriate supports provided, except under limited circumstances when an individual cannot take advantage of such experiences. Trial work experiences shall be of sufficient variety and over a sufficient period of time to determine the eligibility of the individual or to determine the existence of clear and convincing evidence that the individual is incapable of benefiting from vocational rehabilitation services due to the severity of the visual impairment of the individual.

6. Presumption of Eligibility

Individuals who are Social Security recipients and beneficiaries based on a visual impairment shall be:

A. Considered to be an individual with a significant visual impairment;

B. Presumed to be eligible for vocational rehabilitation services provided the individual intends to achieve an employment outcome consistent with the unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice of the individual unless the VR counselor can demonstrate by clear and convincing evidence that the individual is incapable of benefiting due to the severity of the visual impairment of the individual. The individual’s completion of the application process is sufficient evidence of the individual’s intent to achieve an employment outcome, and no additional tests or procedures shall be used to assess this intent.

C. If an applicant for vocational rehabilitation services states that he or she is eligible for Social Security benefits under Title II or Title XVI of the Social Security Act (and therefore is presumed eligible for vocational rehabilitation services), but is unable to provide evidence, such as an award letter, to support that assertion, the VR counselor must verify the applicant’s eligibility under Title II or Title XVI of the Social Security Act by contacting the Social Security Administration. This verification must be made within a reasonable period of time that enables the VR counselor to determine the applicant’s eligibility for vocational rehabilitation services within sixty (60) days of the individual submitting an application for services.

7. Use of Existing Information

To the maximum extent appropriate, the eligibility determination shall be based on existing and current information, including information available from other programs and providers, particularly information from schools and the Social Security Administration, and information provided by the individual and the family.

8. Ineligibility

In all cases where the VR counselor determines that an applicant for or recipient of vocational rehabilitation services does not meet the requirements for eligibility, the case record must include a certification of ineligibility, dated and signed by the counselor, which documents the reasons for the ineligibility determination. In cases where ineligibility is based on the individual being too severely disabled, the decision must be based on clear and convincing evidence and require the counselor to explore the individual’s abilities, capabilities, and capacity to perform in work situations through the use of trial work experiences. (See Section 10).

9. Potentially Eligible Students with Disabilities

DBVI may provide pre-employment transition services to students with disabilities who are potentially eligible for vocational rehabilitation services. A student with a disability is a student who is at least 14 (9^th grade) but not older than 21 who is enrolled in a secondary, postsecondary, or other recognized educational program and who is eligible for and receiving special education services or is an individual with a disability under Section 504. Students who are interested in participating in Pre-ETS activities do so by completing/submitting a registration form requesting such services from their local school or local VR office.

SECTION 5: COMPREHENSIVE ASSESSMENT OF REHABILITATION NEEDS

For individuals who have been determined eligible for DBVI VR services, a Comprehensive Assessment of Rehabilitation Needs (CARN)shall be conducted to determine the goals, objectives, nature and scope of vocational services to be included in the IPE. To the extent that additional data is necessary, the CARN may include trial work experiences and assessment of the unique strengths, resources, priorities, interests, and needs, including the need for supported employment services, in the most integrated setting possible, consistent with the informed choice of the individual. The Comprehensive Assessment of Rehabilitation Needwill be limited to information that is necessary to identify the rehabilitation needs of the individual and to develop an IPE. The CARN will be reviewed and updated as appropriate prior to any significant changes to the IPE.

1. Sources of Information

The CARN will use, as a primary source of information, to the maximum extent possible and appropriate, and in accordance with confidentiality requirements, the following:

A. existing information;

B. information provided by the individual and, where appropriate, by the family of the individual.

2. Elements of a CARN

The CARN may include, to the degree needed to make a determination of vocational needs and develop an IPE, an assessment of the following:

A. personality;

B. career interest;

C. interpersonal skills;

D. intelligence and related functional capacities;

E. educational achievements;

F. work experience;

G. vocational aptitudes;

H. personal and social adjustment;

I. employment opportunities available to the individual;

J. medical, psychiatric, and other pertinent vocational, educational, cultural, social, recreational, and environmental factors that affect the employment and rehabilitation needs of the individual;

K. an appraisal of the patterns of work behavior and services needed to acquire occupational skills and to develop work attitudes, work habits, work tolerance, and social and behavioral patterns necessary for successful job performance, including trial work assessments to assess and develop the capacities of the individual to perform adequately in the work environment;

L. the individual’s capacity to perform in a work environment, including in an integrated setting, to the maximum extent feasible and consistent with the individual’s informed choice through provision of rehabilitation technology services; and

M. an appraisal of the person’s blindness-specific skills related to competent and independent functioning.

SECTION 6: ORDER OF SELECTION

If services cannot be provided to all eligible individuals who apply, Order of Selection procedures must be implemented. After determining eligibility, counselors must assign one of two priority categories and follow the Order of Selection for provision of services. Individuals whose Individualized Plan for Employment (IPE) has been developed and signed prior to the date of implementation of the Order of Selection will continue to receive cost services. DBVI will notify all eligible individuals of the priority categories in the Order of Selection. DBVI will also inform the individual of his/her right to appeal any decision. Such appeal must be in writing. Eligible individuals in priority categories not currently being served will be notified in writing of their assignment to a particular category and their right to appeal their category assignment.

1. Criteria for Assignment of Priority Category

Individuals with disabilities shall be served by date of application within the following priority order categories:

A. An individual with the most significant visual impairment is an individual:

(1) whose visual impairment is of a permanent, chronic or cyclical nature; and

(2) who has a significant visual impairment (and in addition may include physical and/or mental impairment) that seriously limits two or more functional capacities (mobility, communication, self- care, self-direction, interpersonal skills, work tolerance, or work skills) in terms of employment outcome; and

(3) whose vocational rehabilitation can be expected to require multiple vocational rehabilitation services over an extended period of time.

B. An individual with a significant visual impairment is an individual:

(1) whose visual impairment is of a permanent, chronic, or cyclical nature, and

(2) who has significant visual impairment that limits one functional capacity (mobility, communication, self-care, self-direction, interpersonal skills, work tolerance, or work skills) in terms of employment outcome; and

(3) whose vocational rehabilitation can be expected to require multiple vocational rehabilitation services over an extended period of time.

2. Individuals Not Meeting the Order of Selection Criteria

Eligible individuals who do not meet the Order of Selection category currently being served will have access to services through information and referral. Individuals will be provided vocational rehabilitation counseling and guidance to assist such individuals in preparing for, securing, retaining, regaining or advancing in employment, and will be appropriately referred to other programs, including other components of the statewide workforce investment system.

3. Order of Selection and Pre-Employment Transition Services

Students with a disability who have been found eligible and placed on a waitlist for a closed priority category may only receive Pre-Employment Transition Services if they were receiving those services before being found eligible.

SECTION 7: INDIVIDUALIZED PLAN FOR EMPLOYMENT (IPE)

1. Elements of an IPE

An Individualized Plan for Employment (IPE) shall be agreed upon and signed by the individual with a visual impairment and, as appropriate, the authorized representative of the individual and the DBVI VR counselor within a counseling and guidance relationship. The IPE shall be designed to achieve competitive integrated employment for the individual, consistent with the unique strengths, resources, priorities, concerns, abilities, capacities, career interests and informed choice of the individual. The case record must support the selection of the vocational goal. DBVI VRcounselors shall provide a copy of the IPE and any amendments to the eligible individual. DBVI VR goods and services may only be provided in accordance with the IPE. The IPE is not a legal contract between the DBVI VR program and the eligible individual. Individuals shall receive written notification of appeal rights, including the name and address of the person with whom an appeal may be filed, and the availability of the Client Assistance Program during IPE development and whenever DBVI VR services are reduced, suspended, or terminated.

2. Standards for Development and Review of the IPE

The Individualized Plan for Employment must be developed as soon as possible, but not later than 90 days after the date of determination of eligibility, unless the DBVI and the eligible individual agree to the extension of that deadline to a specific date by which the individualized plan for employment must be completed.

3. Options for Developing an IPE

The eligible individual, and the individual’s representative, will be provided information on the individual’s options for developing the IPE. DBVI will not pay for an agency or a representative to develop an IPE. The options for developing all or part of the IPE include the following:

With assistance from a DBVI VR counselor, to the extent determined to be appropriate by the individual;

B. With technical assistance from the DBVI VR Program or other representatives selected by the individual; or

C. The individual alone without assistance.

4. Required Components of an IPE

Regardless of the approach selected by an eligible individual to develop an IPE, the IPE shall include the following:

A specific vocational goal, which must be based on the assessment for determining vocational rehabilitation needs, including the individual’s career interests, and must be in an integrated setting.

Students or youth with a disability may use a projected goal.

B. A description of the specific vocational rehabilitation services that are:

(1) needed to achieve the vocational goal, including, as appropriate, the provision of assistive technology services and personal assistance services, including training in the management of such services; and

(2) provided in the most integrated setting that is appropriate for the service involved and consistent with the informed choice of the eligible individual; and

(3) timeliness for the achievement of the employment outcome and for the initiation of the services.

C. A description of the entity chosen by the individual, or as appropriate, the individual’s representative that will provide the vocational rehabilitation services, and the methods used to procure such services.

D. A description of the criteria to be used to evaluate the progress toward achievement of the employment outcome.

E. The terms and conditions of the IPE, including, as appropriate, information describing:

(1) the responsibilities of DBVI;

(2) the responsibilities that the eligible individual will assume in relation to the vocational goal; and

(3) the responsibility of the individual with regard to applying for and securing comparable benefits.

F. For individuals for whom an employment outcome in a supported employment setting has been determined to be appropriate, information identifying:

(1) the extended services needed by the eligible individual after closure;

(2) the source of extended services or, to the extent that the source of extended services cannot be identified at the time of the development of the IPE, a description of the basis for concluding that there is a reasonable expectation that such source will become available.

G. If determined to be necessary, a statement of projected need for post-employment services.

H. An assurance that the eligible individual with disabilities has been informed of his/her rights and the means by which the individual may express and seek remedy for any dissatisfaction, including the opportunity for a review of the rehabilitation determination, as described in this chapter; and assurance that the eligible individual with disabilities has been provided a detailed explanation of the availability of the resources within the Client Assistance Program.

SECTION 8: COMPARABLE SERVICES AND BENEFITS AND PARTICIPATION BY INDIVIDUALS WITH VISUAL IMPAIRMENT IN THE COST OF VR SERVICES

1. If an eligible individual wishes to financially participate in a service consistent with the IPE, it shall be documented in the IPE.

2. If comparable services and benefits are available to the eligible individual, they must be utilized to meet, in whole or part, the cost of vocational rehabilitation services. If comparable services or benefits exist under any other program, but are not available to the individual at the time needed to satisfy the rehabilitation objectives in the individual’s IPE, DBVI shall provide vocational rehabilitation services until those comparable services and benefits become available. The utilization of comparable services and benefits do not apply in the following situations:

A. if the determination of the availability would delay the provision of vocational rehabilitation to any eligible individual with visual impairment who is at extreme medical risk, based upon medical evidence provided by an appropriate qualified medical professional; or

B. if an immediate job placement would be lost due to a delay in the provision of comparable benefits.

3. The following categories of service are exempt from a determination of the availability of comparable services and benefits:

A. assessment for determining eligibility, priority for services, and vocational rehabilitation needs;

B. vocational rehabilitation counseling, guidance, and referral services;

C. Non-restricted awards and scholarships based on merit from civic, professional or social organizations;

D. rehabilitation technology services; including telecommunications, sensory and other technological aids and devices;

E. job-related services, including job search and placement services; job retention services, follow-up services and follow-along services;

F. post-employment services that would be included under (A) - (E) above.

SECTION 9: VOCATIONAL REHABILITATION SERVICES

DBVI VR will provide, as appropriate to the vocational rehabilitation needs of each eligible individual and consistent with each individual’s informed choice, any goods or services determined necessary for the individual to achieve an employment outcome. Services that are of sufficient quality will be provided as cost effectively as possible to meet the individual’s needs. Services include, but are not limited to:

1. An assessment for determining eligibility, priority for services and for determining vocational rehabilitation needs.

2. Vocational rehabilitation counseling, guidance, and job-related services, including job search and placement assistance, customized employment, job coaching, job retention services, follow-up services and follow-along services.

3. Referral and other services necessary to help applicants and eligible individuals secure needed services from other agencies and to advise those individuals about the Client Assistance Program.

4. Physical and mental restoration services necessary to correct or to substantially modify a physical or mental condition of an individual that is stable or slowly progressive.

5. Post-Secondary, Vocational and Occupational Training Services

A. Degree-granting programs ; Post-secondary training is that training offered by accredited institutions which qualify for federal financial student aid and is provided only when necessary to achieve an employment outcome consistent with an individual's strengths, resources, priorities, concerns, abilities, capacities and informed choice, and must be documented in the IPE.

(1) Financial Consideration

(a) DBVI contribution toward post-secondary training shall not be provided unless maximum efforts have been made to secure assistance in whole, or in part from the Federal Financial Aid Program and other sources. An individual must make a reasonable effort and provide evidence of this effort to resolve grant awards and student loans in default prior to obligation of DBVI funds. When an individual owes a refund on a previous grant award or has a student loan in default, has limited or no financial resources, has made a reasonable repayment effort, and still fails to reach an agreement with lender/grantor, it may be reasonable to conclude that maximum effort has been made to secure grant assistance.

(b) DBVI contribution will be based upon the degree granting institution’s Financial Aid Office (FA0) needs analysis including completion of the FAFSA and determination of individual financial aid, and the Vocational Rehabilitation Counselor’s examination of actual costs and visual impairment related expenses and will not exceed the current rate for tuition, fees and on-campus room and board at the University of Maine. (See exceptions in Section 9.5.A.(1)(a)).

(c) DBVI funding may not exceed the maximum determined “contribution plus visual impairment related expenses”. Visual impairment related expenses are defined as specific assistive technology or other visual impairment related services that are required to accommodate the individual with visual impairment while in attendance at, living on campus, and/or commuting to the post-secondary institution.

(d) DBVI’s contribution cannot replace the Family contribution, except when the student is a recipient of Social Security benefits under Titles II or XVI (SSI/SSDI) of the Social Security Act. Recipients SSI/SSDI due to a disability are not subject to a financial means test.

When appropriate, Maine DBVI shall encourage individuals with disabilities to participate in the cost of attendance through the use of scholarships, college work study and/or student loans. However, individual DBVI clients will not be required to apply for scholarships or accept student loan and/or college work study. If the student is awarded scholarships and/or accepts a student loan, DBVI will consider actual costs and unmet need when determining DBVI contributions towards the cost of post-secondary training.

(e) Students are encouraged to make their own choice of educational institutions that have both the academic programs and visual impairment related supports needed to help them reach the vocational goal in their IPE, whether they are public or private, in-state or out-of-state institutions. However, the maximum DBVI contribution is limited to an amount defined in Section 9.5.A.(1)(b); except

(i) when the individual’s vocational goal can be met ONLY by a more costly post-secondary training opportunity;

(ii) when no existing in-state program will meet the unique needs of the individual and when the employment outcome goal is unlikely to be met without participation in this post-secondary program;

(iii) when specialized instructional methods or other reasonable accommodations cannot be met by a qualified public in-state institution.

B. Academic Requirements

(1) Students must demonstrate academic progress (with a course load of at least six (6) credit hours per semester), maintain eligibility for financial aid, and continue to make progress toward meeting the employment outcome written in the IPE. [Note: If an individual encounters unforeseen or visual impairment related circumstances that interfere with meeting the minimum course load requirements, DBVI may continue sponsorship of the student who takes one course during that semester, however, VR will not support a reduced course load beyond two (2) consecutive semesters.]

(2) If the individual is placed on academic probation, he/she has one grading period in which to attain good standing. DBVI sponsorship will terminate after that grading period unless the client achieves good standing.

(3) DBVI will provide post-secondary education services beyond the baccalaureate level only when:

(a) The individual requires advanced training to enter employment within the agreed upon profession in the IPE which is consistent with the individual’s strengths, resources, priorities, concerns, abilities, capabilities, career interests, and informed choice;

(b) The individual is unable to function in an appropriate career position while simultaneously completing an advanced degree due to limitations related to his/her disabilities; and

(c) Funding levels for tuition and other direct school cost will be limited to levels equal to the University of Maine Graduate rates. (see Section 9.5.A.).

C. Certification and Occupational Training: This is skill and occupational specific training that will lead to an employment outcome.

(1) DBVI reserves the right to use programs that meet state or national certification.

The skills training must provide documentation of competency at the completion of the program.

(3) Certification and occupational training are provided only when necessary to achieve an employment outcome consistent with the individual’s strengths, resources, priorities, concerns, abilities, capabilities and informed choice as written in the IPE.

(4) The student must apply for Federal Financial Student Aid and scholarships whenever available.

(5) Requirements specified in Section 9.5.A. for visual impairment related expenses, choice of institutions, part-time students and academic progress also apply to this section.

D. On-the-job training: When an eligible individual is receiving on-the-job training, the conditions of training, certification and wage payment must comply with applicable State and Federal wage and hour laws. On-the-job training requires a written agreement among the client, VR counselor, and employer which states the hourly wage, responsibility for Workers' Compensation coverage, and any other conditions of employment.

6. Interpreter services and note-taking services for individuals who are deaf, including tactile interpreting for individuals who are deaf-blind; reader services; note-taking services, vision rehabilitation therapy, and orientation and mobility services for individuals who are blind; telecommunications, sensory and other technological aids and devices.

7. Occupational licenses, tools, equipment, initial stocks and supplies necessary in order to enter an occupation. DBVI will not purchase land or buildings for individuals withvisual impairment.

8. Self-employment: DBVI will assist the individual, as needed, in the development of a business plan and in the process of securing loans and other financial resources for the development of a business of which the individual will operate and own at least 51%. Hence, non-profit ventures are not considered self-employed and cannot be supported under this policy. Persons with a self-employment objective are expected to pursue resources to finance the start-up of their business. The DBVI expenditure limit is $7,500 for self-sufficient business that will generate income for the individual at a sufficient level so that the individual needs no supplemental income from any public source, such as SSI, SSDI, or TANF, and $2,500 for self-employment with income projected at a lesser level that will allow the continuance of public benefits. DBVI will not expend funds to support hobbies, which are defined as activities carried on with no intent to make a profit. Exceptions to the financial limit from self-employment are allowable if necessary to achieve agreed upon goal in the IPE.

A. Every VR client who intends to pursue self-employment is required to attend self-employment orientation and complete a comprehensive business plan, utilizing technical assistance as needed and as defined in guidance.

B. Every VR Counselor will base support of the plan on the careful review of considerations of the VR approved business consultant’s appraisal of viability and recommendations, which is a requirement for all self-sufficiency plans.

C. Cost incurred in training of the client or in the development and review of the business plan shall not be included in the maximum expenditure limit. Before VR funds are expended on implementing the business plan, individuals will be expected to contribute to their self-employment venture in the form of cash, loans, grants, materials, or in-kind labor. The DBVI VR counselor and/or business consultant shall assist individuals in exploring and applying for these additional resources.

D. For plans that are expected to provide self-sufficiency, consumers must have a good record of credit or exhibit a pattern of managing existing debt.

E. DBVI retains the right to reclaim occupational tools and equipment purchased by the agency in instances when the individual's IPE is not completed, the vocational goal is changed, resulting in purchased tools and equipment not being needed, or the case is closed as “Not Rehabilitated”.

9. Time-limited ongoing support services. For clients with the most significant disabilities who require jobsite training and support, time-limited ongoing support services are provided at the time of and after job placement.

A. Supported-employment is defined as follows:

(1) Competitive integrated employment, including customized employment, or employment in an integrated work setting in which an individual is working on a short-term basis toward competitive integrated employment, consistent with the strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice of the individual with ongoing support services for individuals with the most significant disabilities for whom competitive employment:

(a) has not traditionally occurred, or;

(b) has been interrupted or intermittent as a result of significant disability; and

(c) because of the nature and severity of their disability, needs intensive supported-employment services and extended services after the transition from DBVI support in order to perform the work.

(2) Short-term basis means that an individual can reasonably achieve competitive integrated employment within six (6) months of achieving a supported employment outcome, not to exceed twelve (12) months in limited circumstances based upon the needs of the individual and demonstrated progress towards competitive earnings.

B. DBVI may provide extended services to a youth with a disability for a period not to exceed four (4) years for youth not older than Age 24. Extended services are defined as ongoing support services and other appropriate services that are needed to support an individual with a most significant disability in supported employment.

C. DBVI may provide ongoing support services to individuals with visual impairment for up to twenty-four (24) months, unless under special circumstances the individual and the counselor jointly agree to the extension of time. in order for the individual to achieve job stability prior to transition to an extended support program.

10. Post-Employment Services: An individual who is determined rehabilitated may receive services necessary to assist that individual to maintain, regain or advance in employment, consistent with the individual’s strengths, resources, priorities, concerns, abilities, capabilities, and interests and informed choice. Post-employment services require an amendment to the IPE. Post-employment services are available to meet rehabilitation needs that do not require a complex and comprehensive provision of services and thus, are limited in scope of two or less services and duration of no more than a year. If more comprehensive services are required, and/or there is a new disabling condition and/or it has been longer than three-years since the case was closed successfully, then a new application for DBVI services should be considered.

11. Rehabilitation technology services may be provided to meet the needs and address the barriers confronted by individuals with visual impairment in order to achieve an employment outcome in areas which include education, rehabilitation, employment, transportation and independent living. Rehabilitation technology services may be provided at any time in the rehabilitation process, including the assessment for determining eligibility, vocational rehabilitation needs, trial work experiences, services provided under an IPE, annual reviews of ineligibility decisions, annual reviews of extended employment in rehabilitation facilities, and post-employment services.

12. Transition services are a coordinated set of activities for youth with disabilities through Age 24 to achieve an employment outcome in a competitive integrated setting. These services promote the movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (including supported-employment), continuing and adult education, adult services, independent living, or community participation. The coordinated set of activities must be based upon the individual student’s needs, taking into account the youth’s preferences and interests, and include, as appropriate, instruction, community experience, the development of employment and other post-school adult objectives, and, if appropriate, acquisition of daily living skills and functional vocational evaluation. Transition services must promote or facilitate the achievement of an employment outcome identified in the student’s individualized plan.

DBVI will assist in transition planning and in the development of student’s individualized education plan. For students eligible for services with an agreed upon or projected vocational goal, DBVI is expected to develop an Individualized Plan for Employment within 90 days of eligibility and, whenever possible, before the student leaves the school setting. In providing transition services, DBVI will facilitate the use of community-based services to the extent they are available and appropriate. Services will be provided in the most cost-effective manner.

Pre-employment transition services available to eligible or potentially eligible students with a vision disability, Age 14 through Age 21, enrolled in a secondary, postsecondary, or other recognized education program, are job exploration counseling; work-based learning experiences; counseling on opportunities for enrollment in comprehensive transition or post-secondary educational programs; workplace readiness training; and self-advocacy instruction.

13. Supportive Services May Include

A. Maintenance for additional expenses, such as food, shelter, and clothing that are in excess of usual expenses of the individual and that are necessitated by the individual’s participation in a rehabilitation program;

B. Transportation, including travel and related expenses that are necessary to enable an applicant or eligible individual to participate in a vocational rehabilitation service and achieve an employment outcome by the most cost-effective means possible.

C. Services to an applicant’s/client's family members when those services are necessary to the vocational rehabilitation of the eligible individuals.

D. Personal assistance services necessary to achieve an employment outcome provided while an individual with a visual impairment is receiving IPE services.

14. Other goods and services determined necessary for the individual to achieve an employment outcome.

SECTION 10: CLOSURE

The counselor shall close an individual's case record at any time in the DBVI VR process when it is determined that the individual is no longer eligible, is unavailable for diagnostic or planned services, chooses not to participate, or is rehabilitated.

1. Ineligibility

A. The person has no visual impairment or substantial impediment to employment, or the individual does not require DBVI VR services to achieve an employment outcome, or is unwilling to consider employment in an integrated setting.

Requires:

(1) Opportunity for the individual's or his/her representative's participation in closure decision;

(2) Written notification of closure decision;

(a) Written notification of appeal rights, including the name and address of the person with whom an appeal may be filed, and of the availability of the Client Assistance Program;

(b) IPE amendment, if appropriate;

(c) Certification of ineligibility in case record that documents the reasons for closure and is dated and signed by the counselor;

(d) Referral to other agencies and community rehabilitation programs, as appropriate.

B. There is clear and convincing evidence after trial work experiences that the individual with a visual impairment is incapable of benefiting from DBVI VR services in terms of achieving an employment outcome in an integrated setting for which an individual is compensated at or above minimum wage.

Requires:

(1) Opportunity for the individual's or his/her representative's participation in closure decision;

(2) Written notification of closure decision;

(3) Written notification of appeal rights, including the name and address of the person with whom an appeal may be filed, and of the availability of the Client Assistance Program;

(4) IPE amendment, if appropriate;

(5) Review of the ineligibility determination within twelve (12) months. A review is not required in situations where the individual refuses it, the individual is no longer present in the State, the individual's whereabouts are unknown, or the individual's medical condition is rapidly progressive;

(6) Certification of ineligibility in the case record that documents the reasons for closure and is dated and signed by the counselor.

(7) Referral to other agencies and community rehabilitation programs, as appropriate.

2. Closure for Reasons other than Ineligibility

A. Individual is Unavailable

The counselor may close a case when an individual is unavailable during an extended period of time for an assessment for determining eligibility and vocational rehabilitation needs, or to participate in planned vocational rehabilitation services, and the counselor has made repeated efforts to contact the individual and to encourage the individual's participation.

Requires:

(1) Rationale for closure documented in the case record;

(2) Written notification to client;

(3) Written notification of appeal rights, including the name and address of the person with whom an appeal may be filed and the availability of the Client Assistance Program;

(4) IPE amendment, when appropriate

B. Individual Refuses to Cooperate or Participate

The counselor may close an applicant or eligible client when there is sufficient evidence to conclude that the individual refuses to cooperate or to participate in an assessment for determining eligibility and rehabilitation needs or planned services that can be demonstrated to be critical to success after reasonable efforts have been made to encourage cooperation or participation.

Requires:

(1) Rationale for closure documented in the case record;

(2) Written notification to client;

(3) Written notification of appeal rights, including the name and address of

(4) the person with whom an appeal may be filed and the availability of the Client Assistance Program;

(5) IPE amendment, when appropriate.

C. Individual needs supported-employment and extended support services are not available

The counselor may close an applicant or eligible client who needs extended supports to become competitively employed, when it becomes apparent that extended supports will not be available. All options, such as agency funding from Department of Health and Human Services, The Bureau of Rehabilitation Services’ Basic or Brain Injury Extended Support Programs, natural supports, etc., must be first explored.

Additionally, for youth with a disability through the age of 24 who have satisfied the requirements below for case closure in achieving an employment outcome and need continued support, but are no longer eligible to receive extended services or any other vocational rehabilitation service provided by the VR agency with funds under Title I or the Supported Employment program and the individual no longer meets age requirements or has received extended services for a period of four years, the counselor may close the client unless an extension of support services has been jointly agreed by the client and the counselor.

Requires:

(1) Rationale for closure documented in the case record;

(2) Written notification to client;

(3) Written notification of appeal rights, including the name and address of the person with whom an appeal may be filed and the availability of the Client Assistance Program;

(4) IPE amendment, when appropriate

3. Closure of Clients Who Have Achieved an Employment Outcome

A. In order to determine that a client has achieved competitive integrated employment, the case record must document the following:

(1) the provision of services under the individual’s IPE contributed to the achievement of the employment outcome that is described in the individual’s IPE;

(2) the employment outcome is consistent with the individual’s strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice as agreed upon in the individual’s IPE;

(3) the employment outcome is in an integrated setting for which the individual is compensated at or above minimum wage, consistent with the individual’s informed choice as agreed upon in the individual’s IPE;

(4) the individual has maintained the employment outcome for at least 90 days; necessary to ensure the stability of the employment outcome and the individual no longer needs vocational rehabilitation services.

(5) the individual and the rehabilitation counselor consider the employment outcome to be satisfactory and agree that the individual is performing well on the job;

(6) the individual is informed, through appropriate modes of communication, including written notification, of the availability of post-employment services

(7) Written notification of appeal rights, including the name and address of the person with whom an appeal may be filed and the availability of the Client Assistance Program;

4. Closure of Clients in Supported Employment

Clients have achieved a supported-employment outcome when the following conditions are met:

(1) the individual has substantially met the goals and objectives of his/her IPE;

(2) extended support services are immediately available to preclude any interruption in the provision of the ongoing support needed to maintain employment;

(3) the individual has maintained competitive integrated employment for at least ninety (90) days after the transition to extended services

(4) the individual or representative and the rehabilitation counselor consider the employment outcome to be satisfactory and agree that the individual is performing well on the job;

(5) the individual or representative is informed, through appropriate modes of communication, including written notification, of the availability of post-employment services; and

(6) Written notification of appeal rights, including the name and address of the person with whom an appeal may be filed and the availability of the Client Assistance Program, is provided.

5. Periodic Review of Unsuccessful Closures from Extended Employment with Community Rehabilitation Providers and Closures at Less than Minimum Wage

For all clients closed unsuccessfully in a non integrated extended employment setting or those closed in an integrated setting in which the individual is compensated at less than minimum wage, Maine DBVI must conduct an annual review and reevaluation of the status of each individual for two (2) years after closure (and thereafter, if requested by the individual or, if appropriate, the individual’s representative) to determine the interests, priorities, and needs of the individual with respect to competitive integrated employment or training in competitive integrated employment. This review must include:

(1) input from the individual or, if appropriate, the individual’s representative, to determine the interests, priorities, and needs of the individual for employment or training for competitive integrated employment in the labor market;

(2) make maximum effort, including the identification of vocational rehabilitation services, reasonable accommodations, and other support services, to enable the eligible individual to benefit from training in, or to be placed in competitive integrated employment; and

(3) provide services designed to promote movement from extended employment to competitive integrated employment, including supported‑ employment, independent living, and community participation.

EFFECTIVE DATE:

September 19, 1994 - Chapter 101, “Vocational Rehabilitation Services for Individuals who are Blind”

EFFECTIVE DATE (ELECTRONIC CONVERSION)

May 19, 1996

MOVED FROM DEPARTMENT OF EDUCATION:

July 1, 1996

NON-SUBSTANTIVE CORRECTIONS: August 19, 1997 - changed references from Education to Labor

REPEALED AND REPLACED:

June 10, 2006 – filing 2006-237, “Rules Governing Vocational Rehabilitation Services for Individuals Who Are Blind or Visually Impaired”

AMENDED:

October 27, 2007 – filing 2007-449

January 15, 2013 – filing 2013-004

January 1, 2019 – filing 2018-269

Chapter 105 Independent Living Services For Individuals Who Are Blind or Visually Impaired Program Rules

Code Me. R. 12-150 Ch. 105 Independent Living Services for Individuals Who Are Blind or Visually Impaired Program Rules {#sec-12-150-ch.-105 omnilex-key=us-me-regs-official--dept-labor--12-150 Ch. 105}

SECTION PAGE

SECTION 1: Purpose and General Requirements of the Blind Independent Living

Rehabilitation Services Program 2

SECTION 2: Eligibility Determination 3

1. Referral and Application for Independent Living Rehabilitation Services 3

2. Eligibility Requirements 3

3. Certification of Eligibility or Ineligibility 3

SECTION 3: Confidentiality 3

1. Release to Client 3

2. Release to Other Programs 4

3. Release for Audit, Evaluation or Research 4

4. Subpoena for Release of Client Records 5

SECTION 4: Independent Living Service Plan 5

Elements of Plan 5

SECTION 5: Scope of Services 5

SECTION 6: Closure 6

SECTION 7: Appeals Process 6

1. Informal Review 6

2. Continuation of Services 6

3. Mediation 6

4. Due Process Hearing 7

5. Judicial Review 8

Summary: The Independent Living Services Program For Individuals Who Are Blind, (hereinafter referred to as the “Program”) of the Division for the Blind and Visually Impaired (hereinafter called DBVI), assists persons who have visual disabilities to function independently. The Program provides and arranges needed rehabilitation services subject to the availability of funds.

SECTION 1: PURPOSE AND GENERAL REQUIREMENTS OF THE BLIND INDEPENDENT LIVING SERVICES PROGRAM

The Program assists eligible blind persons to overcome substantial barriers to functioning independently in family or community. The process is based upon a Service Plan which is a written document oriented to the achievement of independent living goals which will enable a blind or visually impaired individual to secure a level of independent living consistent with his or her current capacities and abilities. Services provided to blind or visually impaired individuals must be necessary and must be provided as cost effectively as possible. All services require participation of the consumer. The Program is operated consistent with the federal Rehabilitation Act of 1973, as amended.

1. Eligibility is determined without regard to sex, race, creed, age, color or national origin. There is no residency requirement, durational or other, which would exclude from services an otherwise eligible individual who is living in the state.

2. The Program shall process referrals in an equitable and expeditious manner, and shall provide services consistent with agency resources.

3. The Program will establish and maintain a case record for each applicant for, and recipient of, independent living rehabilitation services. The case record will contain all required documentation.

4. The Program staff shall be responsible for providing any and all data necessary to comply with Maine and federal agency reporting requirements.

5. In the purchase of goods or services for blind or visually impaired individuals, DBVI staff who manages Program funds shall comply with the prevailing fee schedule and applicable regulations of the Maine Department of Labor and the Department of Administrative and Financial Services. Case service expenditures require written authorization of case managers prior to the initiation of the services or the purchase of any commodities. The Program will purchase goods and services only from vendors who meet state licensure or certification requirements, where applicable. Education and training institutions must be accredited by an authorized organization or approved by appropriate state or federal agencies. When appropriate, the Program staff shall provide the referral necessary to support blind individuals in securing needed services from other agencies and organizations.

6. Each applicant or individual being provided independent living services shall be informed of the procedure for requesting a review and a redetermination of agency action concerning the furnishing or denial of services, including the names and addresses of individuals with whom appeals may be filed and of the availability of the Client Assistance Program.

SECTION 2: ELIGIBILITY DETERMINATION

1. Application for Services

Any person who applies for services shall undergo an eligibility determination, the results of which shall be shared with the individual. An applicant is anyone who signs a dated application or letter requesting independent living services. Applicants shall receive written notification of appeal rights, including the name and address of the person with whom the appeal may be filed, and availability of the Client Assistance Program.

2. Eligibility determinations shall be made based on the following requirements:

A. The individual must have less than 20/70 vision in the better eye with best correction or less than 20-degree fields and/or a significant functional impairment directly related to the visual limitations.

B. Blindness services are reasonably expected to significantly assist the individual to improve his or her ability to function independently in family or community. Improvement in ability to function independently in family or community refers to a demonstration in functional or behavioral terms of an individual's greater independence or maintenance of independence in such areas as self-care, activities of daily living, leisure activities, communication, or orientation and mobility.

3. Determination of Eligibility or Ineligibility

A. For each individual determined eligible for independent living services, the case record must include documentation of the presence of a visual disability.

B. An individual is ineligible when the medical documentation does not substantiate a vision related disability and/or vision does not present a functional limitation to independent living.

C. Written notification of the determination, appeal rights, and the availability of services through the Client Assistance Program shall be provided to the individual.

SECTION 3: CONFIDENTIALITY

1. Release of Information

All personal information acquired by the Program shall be used and released only for purposes directly connected with the administration of the Independent Living Program. Use and release of personal information acquired by the Program shall conform with applicable federal regulations and state laws. The Program shall release information only upon informed written consent of the individual.

For purposes of this policy, informed written consent shall mean a document that:

A. Is in language that the individual understands;

B. Is signed and dated;

C. Is specific in designating DBVI as the agency or person authorized to disclose information;

D. Is specific as to the nature of the information which may be disclosed;

Specifically designates the parties to whom the information may be disclosed; and

F. Is specific as to the purpose(s) for which the released information may be used.

2. Release of Information to Other Programs

Upon informed written consent of the blind or visually impaired individual or his/her personally or legally designated representative, the Program may release to another agency or organization information, but only to the extent that the other agency or organization demonstrates that the information is necessary for its program.

The Program must release personal information with or without consent of the blind or visually impaired individual if required by law; in response to investigations in connection with law enforcement, fraud, or abuse (except where expressly prohibited by federal or state laws or regulations); and in response to a judicial order.

3. Release for Audit, Evaluation or Research

At the discretion of the DBVI Director, personal information may be released to an organization, agency or individual engaged in audit, evaluation, or research only for purposes directly connected with the administration of the Independent Living Rehabilitation Program, or for purposes which would significantly improve the quality of life for disabled persons, and only if the organization, agency or individual assures that:

A. The information will be used only for the purposes for which it is being provided;

B. The information will be released only to persons officially connected with the audit evaluation or research;

C. The information will be managed in a manner to safeguard confidentiality; and

D. The final product will not reveal any personal identifying information without the informed written consent of the involved individual or his/her personally or legally designated representative.

4. Subpoena for Release of Records or for Testimony

An employee shall not testify in court or in an administrative hearing, nor release records, without the consent of the individual unless served with an appropriate subpoena and ordered to do so by a judge or hearing officer.

SECTION 4: INDEPENDENT LIVING SERVICE PLAN

A Service Plan shall be jointly developed with the individual and designed to identify independent living goals and the services necessary to meet these goals. The goals should be consistent with the individual's capacities and abilities. The Service Plan is not a legal contract between DBVI and the individual.

The Service Plan shall document the following:

1. Independent living goals established with the individual;

2. Specific services to be provided in order to achieve the established goals;

3. That the blind or visually impaired individual has been informed of his/her rights and the means by which the individual may express and seek remedy for any dissatisfaction, as described in this chapter and that the individual has been provided a detailed explanation of the Client Assistance Program.

SECTION 5: SCOPE OF SERVICES

The Service Plan may include the following services:

1. Counseling and guidance;

2. Advocacy necessary to help individuals secure service from other agencies;

3. Rehabilitation teaching services

4. Orientation and mobility services;

5. Braille instruction;

6. Low vision services; and

7. Technological aids and assistive device training.

SECTION 6: CLOSURE

An individual's case may be closed at any time, with the involvement of the individual, if it is determined that:

1. The Service Plan has been completed to the extent possible; or

2. The individual has been found to be ineligible

SECTION 7: APPEALS PROCESS

An applicant for or recipient of the Program who is dissatisfied with any determination made by Program staff concerning the furnishing or denial of services may request (or if appropriate, may request through the individual’s representative) a timely review of the determination. The Program shall make reasonable accommodation to the individual's disability in the conduct of the appeals process. Written notification of appeal rights shall be provided to individuals at application, when a plan is developed, and whenever services are reduced, suspended, or terminated. Notification shall include the name and address of the person with whom an appeal may be filed and the availability of the Client Assistance Program. Mediation and/or due process hearings are provided at no cost to the individual, but costs related to legal representation are not provided by DBVI.

1. Informal Review

Whenever possible, DBVI will attempt to resolve conflicts informally prior to mediation or a due process hearing. An individual may request a meeting with the counselor, the appropriate supervisor, and/or a Client Assistance Program representative, if desired, to explore options for resolving any conflicts. An individual may request mediation or a due process hearing immediately without having to go through the informal process.

2. Continuation of Services Pending Completion of the Appeals Process

Pending completion of the appeals process, DBVI may not suspend, reduce, or terminate services being provided under a Service Plan, unless the services were obtained through misrepresentation, fraud or collusion or the individual or individual's representative requests or agrees to, suspension, reduction or termination of services.

3. Mediation

A. Mediation is a voluntary process conducted by a qualified and impartial mediator.

B. An individual must request mediation within thirty (30) calendar days of the agency notice regarding the provision or denial of services that are in question. The request shall be in writing and shall describe the basis for the grievance. The request should be sent to the Director of DBVI who will immediately forward it to the Department of Labor, Division of Administrative Hearings.

C. The Division of Administrative Hearings will schedule a mediation within fifteen (15) days of receipt of request. The mediation will be held at a location that is convenient to the parties to the dispute.

D. Mediation shall be conducted in accordance with the Court Alternative Dispute Resolution Service's (CADRES) standards on ethics and neutrality. At any point during the mediation process, either party or the mediator may elect to terminate the mediation.

E. Any agreement reached in the mediation process shall be set forth in a written mediation agreement and shall be signed by both parties.

F. Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding in accordance with CADRES confidentially standards.

G. The individual may be represented at the mediation, including but not limited to representation by the Client Assistance Program. DBVI is not obligated to cover the cost of applicant’s legal representative.

H. The mediation process may not be used to deny or delay the individual's right to pursue resolution of the dispute through a due process hearing within the specified time period.

Due Process Hearing

A. A due process hearing is a proceeding whereby an individual who is dissatisfied with any determination concerning the provision or denial of services may seek a review of agency action before a hearing officer.

B. The individual must request a due process hearing within thirty (30) calendar days of the agency notice regarding the provision or denial of service if mediation is not requested.

C. If no request for due process hearing is made within thirty (30) calendar days, the Agency decision becomes final.

D. The request for due process hearing shall be in writing and shall describe the basis for the grievance. DBVI will accommodate an individual's disability and offer assistance, if appropriate, in this process. The request should be sent to the Director of DBVI who will immediately forward the request to the Department of Labor, Division of Administrative Hearings.

E. A pre-hearing conference shall be held to clarify issues and explore options for resolving grievances.

F. The due process hearing shall be conducted within sixty (60) calendar days of the receipt of the request for a due process hearing.

G. A due process hearing shall be conducted by an impartial hearing officer from the pool of qualified persons identified jointly by the Director of DBVI and the State Rehabilitation Council of DBVI.

H. The DBVI program may not deny or dismiss a request for due process hearing unless the individual or his/her representative:

(1) withdraws the request in writing; or

(2) is adjudged by the hearing officer to be in default for failure to appear at the hearing without good cause.

I. The due process hearing shall be conducted and will include an opportunity for the individual or the individual’s representative to present witnesses and relevant evidence. A decision shall be issued in accordance with Maine Administrative Procedure Act.

J. The hearing officer shall issue a written decision containing the findings and grounds for the decision within thirty (30) days of the completion of the hearing.

K. The hearing officer’s decision becomes final unless one of the parties requests a Judicial Review.

5. Judicial Review

Any party who disagrees with the decision resulting from due process hearing has the right to file a petition in Superior Court under Rule 80C of the Maine Rules of Civil Procedure.

EFFECTIVE DATE:

September 19, 1994, “Policy Manual for Independent Living for Individuals Who Are Blind”

EFFECTIVE DATE (ELECTRONIC CONVERSION):

May 19, 1996

MOVED FROM DEPARTMENT OF EDUCATION:

July 1, 1996

NON-SUBSTANTIVE CORRECTIONS:

August 19, 1997 - references changed from Education to Labor.

November 17, 1998 - chapter number corrected (mistakenly read Ch. 150).

REPEALED AND REPLACED:

June 10, 2006 – filing 2006-238, “Rules Governing Independent Living Services for Individuals Who Are Blind or Visually Impaired”

AMENDED:

October 27, 2007 – filing 2007-450

12-150 Chapter 105 page 9

12-152 Bureau of Rehabilitation Services (Note: This agency moved from 05, Department of Education on July 1, 1996.)

Chapter 1 Rules

Code Me. R. 12-152 Ch. 1 Rules {#sec-12-152-ch.-1 omnilex-key=us-me-regs-official--dept-labor--12-152 Ch. 1}

12-152

(Chapter 1)

Maine

Department of Labor

Division of Vocational Rehabilitation

RULES

Section

1. Purpose and General Requirements Page 4

2. Confidentiality Page 6

3. Purpose and General Requirements

4. Release to Individual with Disabilities or His/Her Representative

5. Release to Other Programs

6. Release for Audit, Evaluation or Research

7. Release of Records for Testimony

8. Maine DVR Appeals Process Page 8

9. Informal Review

10. Continuation of Services Pending Completion of the Hearing

11. Time Frames

12. Mediation

13. Due Process Hearing

14. Civil Action

15. Application & Eligibility Page 11

16. Application for DVR Services

17. Eligibility Criteria

18. Presumption of Benefit

19. Time Frame for Making Eligibility Determination

20. Trial Work Experiences

21. Presumption of Eligibility for SSI Recipients and SSDI Beneficiaries

22. Use of Existing Information

23. Ineligibility

24. Order of Selection Page 14

25. Order of Selection General Information

26. Order of Selection Categories and Definitions

27. Order of Selection Protocol

28. Individuals Not Meeting Order of Selection Criteria

29. Comprehensive Assessment of Rehabilitation Needs Page 16

30. Source of Information

31. Elements of a Comprehensive Assessment of Rehabilitation Needs

32. Individualized Plan for Employment (IPE) Page 18

33. IPE General Information

34. Standards for Development & Review of the IPE

35. Options for Developing an IPE

36. Required Components of an IPE

37. Comparable Services and Benefits and the Participation by Page 20

Individuals with Disabilities in the Cost of DVR Services

1. Client Financial Participation

2. Comparable Services and Benefits

3. Comparable Services and Benefits Exceptions

4. Vocational Rehabilitation Services Page 21

5. Assessment Services

6. Vocational Counseling and Guidance

7. Referral Services

8. Physical and Mental Restoration Services

9. Home Modification Services

10. Post Secondary Training

A. Degree-Granting Programs

B. Certification and Occupational Training

C. On the Job Training

7. Interpreter, Reader, and Other Auxiliary Services and Technological Aid

8. Occupational Licenses, Equipment, Self-Employment

9. Self-Employment

10. Supported-Employment

A. Definition of Supported-Employment

B. Maximum Time Period for Time Limited Services

11. Post-Employment Services

12. Rehabilitation Technology Services

13. Transition Services, Including Pre-Employment Transition Services

14. Other VR Goods and Services

15. Supportive Services

A. Maintenance

B. Transportation

10. Closure Page 29

11. Ineligibility

A. No Disability, No Substantial Impediment to Employment

Or Does Not Require VR Services

B. Clear and Convincing Evidence

2. Closure for Reasons Other than Ineligibility

A. Unavailable

B. Refuses to cooperate or participate

C. Supported-employment and Extended Support are not available

D. Periodic Review of Unsuccessful Closures from Extended Employment with Community Rehabilitation Providers and Closures at Less Than Minimum Wage

3. Closure of Rehabilitated Clients

A. Case Documentation Requirements

B. Closure of clients in supported-employment

SECTION 1. PURPOSE AND GENERAL REQUIREMENTS

The Maine Division of Vocational Rehabilitation (DVR) program assists eligible individuals with physical or mental disabilities to prepare for and achieve an employment outcome. "Employment outcome" means entering or retaining full-time employment, or, if appropriate, part-time competitive employment in the integrated labor market, supported-employment, or any other type of employment in an integrated setting, including self-employment, telecommuting, or business ownership, that is consistent with an individual’s strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice. Note: Integrated, with respect to an employment outcome, means a setting typically found in the community in which applicants or eligible individuals interact with non-disabled individuals, other than non-disabled individuals providing services to those applicants or eligible individuals, to the same extent that non-disabled individuals in comparable positions interact with other personnel.

The DVR process is based upon an individualized plan (IPE) for employment which is oriented to the achievement of a vocational goal. Services provided to individuals with disabilities must be necessary to overcome the vocational impediment and must be provided as cost effectively as possible, and will be of sufficient quality to meet individual needs.

The Division of Vocational Rehabilitation (DVR) program is operated in compliance with the federal Rehabilitation Act of 1973, as amended and codified at 29 U.S.C. §720 et seq. (“Act”); Title 34 CFR 361 issued in the Federal Register August 19, 2016; and Title 26 M.R.S.A. §1411.

1. Eligibility is determined without regard to sex, race, creed, age, color, national origin or type of disability. There is no residency requirement, durational or other, which would exclude from services an otherwise eligible individual who is living in the state.

2. Throughout the eligible individual’s rehabilitation program, every opportunity will be provided to the individual to make informed choices regarding the rehabilitation process. Documentation of opportunities for making informed choices will be kept in the individual’s case record.

3. Maine DVR will establish and maintain a case record for each applicant, and recipient of vocational rehabilitation services, which includes data necessary to comply with Maine DVR and federal Rehabilitation Services Administration requirements.

4. In the purchase of goods or services for persons with disabilities, counselors shall comply with applicable regulations of the Maine Department of Labor and the Department of Administration and Finance.

A. Case service expenditures require written authorization prior to the initiation of the service or the purchase of any equipment. Oral authorizations are permitted in emergency situations, but must be confirmed promptly in writing and forwarded to the provider.

B. Goods and services will be provided subject to the statewide availability of funds. Goods and services will be explored by the individual, with assistance from the DVR counselor, and the individual will be involved in the choice of who will provide goods and services. DVR reserves the right to use community rehabilitation providers who meet state or national accreditation standards.

5. Maine DVR shall process new referrals in an equitable manner and will make an attempt to contact the individual within seven calendar days.

6. When appropriate, counselors shall provide the referral necessary to support individuals with disabilities in securing needed services from other agencies and organizations.

7. Each applicant or eligible individual being provided vocational rehabilitation services shall be informed of the procedure for requesting a review and a re-determination of agency action concerning the furnishing or denial of services, including the names and addresses of individuals with whom appeals may be filed, and of the availability of the Client Assistance Program.

SECTION 2. CONFIDENTIALITY

All client/applicant information acquired by Maine DVR shall remain the property of Maine DVR and shall only be used and released for purposes directly connected with the administration of the Division of Vocational Rehabilitation program. Use and release of personal information acquired by Maine DVR shall conform with applicable state and federal regulations, including complying with performance accountability requirement under the Act, including 29 U.S.C. §726.

1. For purposes of this policy, informed written consent shall:

A. be in language that the individual or his/her representative understands;

B. be signed by the individual or his/her representative and dated;

C. be specific in designating Maine DVR as the agency or person authorized to disclose information;

D. be specific as to the nature of the information which may be released;

E. specifically designate the parties to whom the information may be released; and

F. be specific as to the purpose(s) for which the released information may be used.

2. Release to Individual with Disabilities or His/Her Representative

Upon informed written consent by the individual with disabilities or his/her representative, all information in the case record shall be made available in a timely manner, except:

A. medical, psychological or other information that Maine DVR believes may be harmful to the individual. This information may not be released directly to the individual, but shall be provided through a third party chosen by the individual, which may include, among others, an advocate, a family member, or a qualified medical or mental health professional, unless a representative has been appointed by a court to represent the individual, in which case the information must be released to the court-appointed representative; and

B. information obtained from outside Maine DVR may be released only under the conditions established by the outside agency, organization or provider.

3. Release to Other Programs

Upon informed written consent of the individual with disabilities or his/her representative, Maine DVR may release to another agency or organization information that may be released to the individual with disabilities and only to the extent that the other agency demonstrates that the information is necessary for its program.

A. Maine DVR must release personal information, with or without consent of the individual, if required by State and Federal law, if in response to investigations in connection with law enforcement, fraud, or abuse (except where expressly prohibited by Federal or State laws or regulations), and in response to an order issued by a judge, magistrate, or other authorized judicial officer.

B. Maine DVR may release personal information without informed written consent of the individual in order to protect the individual or others when the individual poses a threat to his/her safety or the safety of others except for HIV test results which may not be released without informed written consent of the individual.

4. Release for Audit, Evaluation or Research

At the discretion of the DVR Director, personal information may be released to an organization, agency, or individual engaged in audit, evaluation or research only for purposes directly connected with the administration of the Division of Vocational Rehabilitation program, or for purposes which would significantly improve the quality of life for individuals with disabilities, and only if the organization, agency or individual assures that:

A. the information will be used only for the purposes for which it is being provided;

B. the information will be released only to individuals officially connected with the audit, evaluation or research;

C. the information will not be released to the involved individual;

D. the information will be managed in a manner to safeguard confidentiality; and

E. the final product will not reveal any personal identifying information without the informed written consent of the involved individual, and his/her representative.

5. Release of Records for Testimony

An employee shall not testify in court or in an administrative hearing; nor release records without the consent of the individual with disabilities unless ordered to do so by a judge, magistrate, or other authorized judicial officer.

SECTION 3. MAINE DVR APPEALS PROCESS

An applicant for, or recipient of, vocational rehabilitation (VR) services who is dissatisfied with any determination made by a rehabilitation counselor concerning the furnishing or denial of services may request (or, if appropriate, may request through the individual’s representative) a timely review of the determination. Maine DVR shall make reasonable accommodations to the individual's disability in the conduct of the appeals process. Written notification of appeals rights, including the name and address of the person with whom an appeal may be filed, and the availability of the Client Assistance Program, will be provided to individuals at application, when assigned an Order of Selection Category, when an IPE is developed, and whenever VR services are reduced, suspended, or terminated. Mediation and/or Due Process Hearings are provided at no cost to the individual, but costs related to legal representation is not provided by Maine DVR.

1. Informal Review

Whenever possible, Maine DVR will attempt to resolve conflicts informally, prior to Mediation or a Due Process Hearing. An individual may request a meeting with the counselor, the appropriate supervisor, and/or a Client Assistance Program representative, if desired, to explore options for resolving any conflicts. An individual may request Mediation or a Due Process Hearing immediately, without having to go through the informal process.

2. Continuation of Services Pending Completion of the Hearing

Pending a final determination of an appeal hearing, the DVR may not suspend, reduce, or terminate services being provided under an Individualized Plan of Employment (IPE), unless the services were obtained through misrepresentation, fraud or collusion of the individual, or unless the individual, or individual’s authorized representative, requests suspension, reduction, or termination of services.

3. Time Frames

The time frames listed under Section 4. Mediation and 5. Due Process Hearing may be waived if both parties agree to an extension of time in order to conduct the Mediation or Hearing, and render a decision.

4. Mediation

A. Mediation is a voluntary process conducted by a qualified and impartial mediator. At any point during the mediation process, either party, or the mediator, may elect to terminate the mediation.

B. An individual must request Mediation within thirty (30) calendar days of the agency notice regarding the provision or denial of services that is in question. The request shall be in writing, and the request shall describe the complaint. The request should be sent to the Director of DVR who will immediately forward it to a qualified mediator.

C. The mediator will commence a mediation meeting within fifteen (15) calendar days of receipt of the request, and shall be held in a location that is convenient to the parties in the dispute.

D. Mediation will be conducted in accordance with the State of Maine’s Judicial Branch Court Alternative Dispute Resolution Service’s (CADRES) standards on ethics and neutrality.

E. An agreement reached in the mediation process shall be set forth in a written mediation agreement, and shall be signed by both parties.

F. Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding in accordance with CADRES confidentiality standards.

G. The individual may be represented at the mediation, including but not limited to, representation by the Client Assistance Program.

H. The Mediation process may not be used to deny or delay the individual’s right to pursue resolution of the dispute through a due process hearing within the specified time period.

5. Due Process Hearing

A. Due Process Hearing is a procedure whereby an individual who is dissatisfied with any determinations concerning the provision or denial of DVR services may seek a re-determination of agency action before an impartial hearing officer.

B. The individual must request a Due Process Hearing within thirty (30) calendar days of the agency notice regarding the provision or denial of service, if Mediation was not requested.

C. If no request for Due Process Hearing is made within thirty (30) calendar days, the agency decision is considered final.

D. The request for Due Process Hearing shall be in writing, and shall describe the complaint. Maine DVR will accommodate an individual’s disability and offer assistance, if appropriate, in this process. The request should be sent to the Director of DVR who will immediately forward the request to a qualified hearing officer.

E. A pre-hearing conference will be held to clarify issues and explore options for resolving grievances.

F. The Due Process Hearing shall be conducted within sixty (60) calendar days of receipt of the request for Due Process Hearing.

G. A Due Process Hearing shall be conducted by an impartial hearing officer identified jointly by the Director of Maine DVR and the State Rehabilitation Council.

H. Maine DVR may not deny or dismiss a request for Due Process Hearing unless the individual or his/her representative:

(1) withdraws the request in writing; or

(2) is adjudged by the Due Process Hearing Officer to be in default for failure to appear at the hearing without good cause.

I. The Due Process Hearing shall be conducted and will include an opportunity for the individual or the individual’s representative to present witnesses and relevant evidence . A decision shall be issued in accordance with Maine's Administrative Procedure Act, 5 M.R.S.A. Chapter 375, subchapter IV.

J. The Due Process Hearing Officer will issue a full written report of the findings and grounds for the decision within thirty (30) days of the completion of the hearing.

K. The Hearing Officer’s decision is final unless either party brings a civil action.

6. Civil Action

Any party who disagrees with the final decision of the Due Process Hearing has the right to file a petition in Superior Court under Rule 80C of the Maine Rules of Civil Procedure or a civil action for judicial review in a state or federal court of competent jurisdiction under the Act, 29 U.S.C. §722(c)(5) (J).

SECTION 4. APPLICATION AND ELIGIBILITY

1. Application for DVR Services

An applicant is anyone who signs a dated application or dated document requesting services. Any individual who applies for services shall undergo an assessment for determining eligibility, with the individual notified in writing of the results. Applicants will receive written notification of appeals rights, including the name and address of the person with whom an appeal may be filed, and the availability of the Client Assistance Program.

2. Eligibility Criteria

An individual is eligible for DVR services if the individual:

A. has a physical or mental impairment which, for the individual, constitutes or results in a substantial impediment to employment Note: Substantial impediment to employment means that a physical or mental impairment that hinders an individual from preparing for, engaging in, or retaining employment consistent with the individual’s abilities and capabilities and,

B. requires vocational rehabilitation services to prepare for, secure, retain, or regain employment consistent with the applicant’s unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice. Required VR services must be necessary to overcome disability related barriers. Lack of resources by itself does not constitute a disability related barrier.

3. Presumption of Benefit

It shall be presumed the individual can benefit in terms of an employment outcome from vocational rehabilitation services, unless the DVR counselor can demonstrate by clear and convincing evidence that such individual is incapable of benefiting from vocational rehabilitation services due to the severity of the disability of the individual.

4. Timeframe for Making an Eligibility Determination

Eligibility for DVR services shall be determined within a reasonable period of time, not to exceed sixty (60) days after the application for services has been received, unless the applicant is notified in writing of the following:

A. that exceptional and unforeseen circumstances beyond control of the counselor preclude the counselor from completing the determination within the prescribed timeframe, and the applicant agrees that a specific extension of time is warranted; or

B. that trial work experiences are necessary to determine if the individual is capable of benefiting, in terms of an employment outcome, from vocational rehabilitation services.

5. Trial Work Experiences

Before making a determination that an individual is incapable of benefiting in terms of an employment outcome from vocational rehabilitation services, the VR counselor shall explore the individual’s abilities, capabilities, and capacity to perform in realistic work situations, through a written plan of trial work experiences with appropriate supports provided, except under limited circumstances when an individual cannot take advantage of such experiences. Trial work experiences shall be of sufficient variety and over a sufficient period of time to determine the eligibility of the individual, or to determine the existence of clear and convincing evidence that the individual is incapable of benefiting from vocational rehabilitation services due to the severity of the disability of the individual.

6. Presumption of Eligibility for SSI Recipients and SSDI Beneficiaries

Individuals who are SSI recipients or SSDI beneficiaries, based on a disability, shall be:

A. considered to be an individual with a significant disability;

B. presumed to be eligible for vocational rehabilitation services, provided the individual intends to achieve an employment outcome consistent with the unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice of the individual, unless the VR counselor can demonstrate, by clear and convincing evidence, that the individual is incapable of benefiting due to the severity of the disability of the individual. A dated application or a dated document requesting services is sufficient evidence of the individual’s intent to achieve an employment outcome and no additional tests or procedures shall be used to assess this intent.

C. If an applicant for vocational rehabilitation services states that he or she is eligible for Social Security benefits under Title II or Title XVI of the Social Security Act (and therefore is presumed eligible for vocational rehabilitation services), but is unable to provide evidence, such as an award letter, to support that assertion, the VR counselor must verify the applicant’s eligibility under Title II or Title XVI of the Social Security Act by contacting the Social Security Administration. This verification must be made within a reasonable period of time that enables the VR counselor to determine the applicant’s eligibility for vocational rehabilitation services within 60 days of the individual submitting an application for services.

7. Use of Existing Information

To the maximum extent appropriate, the eligibility determination shall be based on existing and current information, including information available from other programs and providers, particularly information from schools and Social Security Administration, and information provided by the individual and the family.

8. Ineligibility

In all cases where the counselor determines that an applicant for, or recipient of, vocational rehabilitation services does not meet the requirements for eligibility, the case record must include a certification of ineligibility, dated and signed by the counselor, which documents the reasons for the ineligibility determination. Ineligibility decisions concerning the severity of a disability must be based on clear and convincing evidence, and require the counselor to explore the individual’s abilities, capabilities, and capacity to perform in work situations through the use of trial work experiences. (See Section 10)

9. Potentially Eligible Students with Disabilities

DVR may provide pre-employment transition services to students with disabilities who are potentially eligible for vocational rehabilitation services. A student with a disability is a student between the ages of 14 (9^th grade) and not older than 21 who is enrolled in a secondary, postsecondary, or other recognized educational program and who is eligible for and receiving special education services or is an individual with a disability for the purposes of Section 504. Interested students may request pre-employment transition services by completing and signing a Pre-Employment Transition Services Registration Form. For students who are under age 18 or not their own guardians, the form must be signed by a parent/guardian.

SECTION 5. ORDER OF SELECTION

If services cannot be provided to all eligible individuals who apply, the Director of DVR will implement an Order of Selection as set forth in this section. After determining eligibility, counselors must assign a priority category and follow the Order of Selection set forth below for the provision of services. Individuals whose IPE has been developed and signed prior to the date of implementation of the Order of Selection will continue to receive cost services. Maine DVR will notify all eligible individuals of the priority categories in the Order of Selection. Eligible individuals in priority categories not currently being served will be notified in writing of their assignment to a particular category and their right to appeal their category assignment.

The priority category shall be assigned, based on their level of significance of disability into one of four Priority Categories: Priority Category # 1, “individual with a most significant disability”; Priority Category # 2, “individual with a significant disability”; Priority Category # 3, “individual with a significant disability”; or Priority Category # 4, “all other eligible individuals” as set forth below.

Individuals with disabilities shall be served first based on significance of disability and second by date of application in the following priority order:

Priority Category # 1: Individual with a most significantly disability " means an eligible individual who meets the following criteria:

1. who has a serious limitation in terms of an employment outcome in four or more functional capacity areas. Functional capacity areas are; mobility, work tolerance, communication, self-care, interpersonal skills, self-direction cognition and learning or work skills. "Serious limitation in terms of an employment outcome" means a reduction of one's capacity to perform, due to severe physical or mental impairment, to the degree that the individual requires services or accommodations in order for the individual to work or be a fully functioning member of the community;
2. whose vocational rehabilitation can be expected to require multiple vocational rehabilitation services, meaning two or more core vocational rehabilitation services as outlined in Section 9 of this rule, services 9.1 through 9.14; and
3. whose vocational rehabilitation can be expected to require an extended period of time.

Priority Category # 2: Individual with a significant disability means an eligible individual who meets the following criteria:

1. who has a serious limitation in terms of an employment outcome in at least two or three functional capacity areas. Functional capacity areas are; mobility, work tolerance, communication, self-care, interpersonal skills, self-direction, cognition and learning, or work skills. "Serious limitation in terms of an employment outcome" means a reduction of one's capacity to perform, due to severe physical or mental impairment, to the degree that the individual requires services or accommodations in order for the individual to work or be a fully functioning member of the community;
2. whose vocational rehabilitation can be expected to require multiple vocational rehabilitation services, meaning two or more core vocational rehabilitation services as outlined in Section 9 of this rule, services 9.1 through 9.14; and
3. whose vocational rehabilitation can be expected to require an extended period of time. and

Individuals in Priority Category # 2 will be served only after all individuals in Category # 1 receive services.

Priority Category # 3: Individual with a significant disability means an eligible individual who meets the following criteria:

1. a serious limitation in terms of an employment outcome in 1 or more functional capacity areas. Functional capacity areas are; mobility, work tolerance, communication, self-care, interpersonal skills, self-direction cognition and learning or work skills. "Serious limitation in terms of an employment outcome" means a reduction of one's capacity to perform, due to severe physical or mental impairment, to the degree that the individual requires services or accommodations in order for the individual to work or be a fully functioning member of the community; and:
2. whose vocational rehabilitation may or may not require multiple core vocational rehabilitation services as outlined in Section 9 of this rule, services 9.1 through 9.14; or
3. whose vocational rehabilitation may or may not require an extended period of time.

Individuals in Priority Category # 3 will be served only after all individuals in Categories # 1 and # 2 receive services.

D. Priority Category # 4 means all other eligible individuals.

Individuals in Priority Category # 4 will be served only after all individuals in Categories # 1, # 2, and # 3 receive services.

4. Individuals Not Meeting the Order of Selection Criteria

Eligible individuals who do not meet the Order of Selection category currently being served will have access to services through information and referral. Individuals will be provided vocational rehabilitation counseling and guidance to assist such individuals in preparing for, securing, retaining, advancing in, or regaining employment, and will be appropriately referred to other programs, including other components of the statewide workforce investment system.

• • 1. Order of Selection and Pre-Employment Transition Services

Students with a disability who have been found eligible and placed on a waitlist for a closed priority category may only receive Pre-Employment Transition Services if they were receiving those services before being found eligible.

SECTION 6. Comprehensive Assessment of Rehabilitation Needs

For individuals who have been determined eligible for DVR services or for trial work experiences, a comprehensive assessment of rehabilitation needs shall be conducted to determine the goals, objectives, nature and scope of vocational services to be included in the Individualized Plan for Employment. To the extent that additional data is necessary, the comprehensive assessment will include an assessment of the unique strengths, resources, priorities, interests, and needs, including the need for supported-employment services, in the most integrated setting possible, consistent with the informed choice of the individual. The comprehensive assessment will be limited to information that is necessary to identify the rehabilitation needs of the individual and to develop an Individualized Plan for Employment. The Comprehensive Assessment of Rehabilitation Needs will be reviewed and updated as appropriate prior to significant changes in the Individualized Plan for Employment.

1. The comprehensive assessment will use, as a primary source of information, to the maximum extent possible and appropriate, and in accordance with confidentiality requirements, the following:

A. existing information;

B. information provided by the individual and, where appropriate, by the family of the individual.

2. The comprehensive assessment may include, to the degree needed to make a determination of vocational needs and develop an IPE, an assessment of the following:

A. personality;

B. career interest;

C. interpersonal skills;

D. intelligence and related functional capacities;

E. educational achievements;

F. work experience;

G. vocational aptitudes;

H. personal and social adjustment;

I. employment opportunities available to the individual;

J. medical, psychiatric, psychological, and other pertinent vocational, educational, cultural, social, recreational, and environmental factors that affect the employment and rehabilitation needs of the individual;

K. an appraisal of the patterns of work behavior and services needed to acquire occupational skills, and to develop work attitudes, work habits, work tolerance, and social and behavioral patterns necessary for successful job performance, including situational assessments to assess and develop the capacities of the individual to perform adequately in the work environment;

L. the individual’s capacities to perform in a work environment, including in an integrated setting, to the maximum extent feasible and consistent with the individual’s informed choice through provision of rehabilitation technology services.

SECTION 7. INDIVIDUALIZED PLAN FOR EMPLOYMENT

1. An Individualized Plan for Employment (IPE)

The IPE shall be agreed upon, and signed by the individual with a disability, and, as appropriate, a parent, family member, guardian, advocate or authorized representative and the DVR Counselor within a counseling and guidance relationship. The IPE shall be designed to achieve an employment outcome of the individual, consistent with the unique strengths, resources, priorities, concerns, abilities, capabilities, career interests and informed choice of the individual. The case record must support the selection of the vocational goal. Counselors shall provide a copy of the IPE, and any amendments, to the eligible individual. VR goods and services may only be provided in accordance with the IPE. The IPE is not a legal contract between Maine DVR and the eligible individual. Individuals will receive written notification of appeals rights, including the name and address of the person with whom an appeal may be filed, and the availability of the Client Assistance Program during IPE development, and whenever VR services are denied, reduced, suspended or terminated.

2. Standards for Development and Review of the IPE

The IPE will be developed within 90 days after the eligibility determination, unless the DVR Counselor and the eligible individual agree to the extension of that deadline to a specific date by which the individualized plan for employment must be completed . If there is a waiting list, the IPE will be developed within 90 days from the date the individual comes off the waiting list. The IPE will be reviewed at least annually by a qualified vocational rehabilitation counselor and the eligible individual, or as appropriate, the individual’s representative to assess the individual’s progress in achieving the identified employment outcome.

3. Options for Developing an Individualized Plan for Employment

The eligible individual, or the individual’s representative, will be provided information on the individual’s options for developing an Individualized Plan for Employment. Maine DVR will not pay for an agency, or a representative, to develop an IPE. The options for developing all or part of the Individualized Plan for Employment include the following:

A. with assistance from a DVR vocational rehabilitation counselor, to the extent determined to be appropriate by the individual;

B. with technical assistance from the DVR Program, or other representatives selected by the individual; or

C. the individual alone without assistance.

4. Required Components of an Individualized Plan for Employment

Regardless of the approach selected by an individual to develop an IPE, the IPE shall include the following:

A. specific vocational goal, which must be based on the assessment for determining vocational rehabilitation needs, including the individual’s career interests, and must be in an integrated setting; or in the case of students and youth with disabilities; a projected vocational goal that will be amended following career exploration activities;

B. a description of the specific vocational rehabilitation services that are:

(1) needed to achieve the vocational goal, including, as appropriate, the provision of assistive technology services, and personal assistance services, including training in the management of such services; and

(2) provided in the most integrated setting that is appropriate for the service involved, and is consistent with the informed choice of the eligible individual;

C. timelines for the achievement of the employment outcome, and for the initiation of the services;

D. A description of the entity chosen by the individual, or as appropriate, the individual’s representative that will provide the vocational rehabilitation services, and the methods used to procure such services;

E. description of the criteria to evaluate the progress towards achievement of the employment outcome;

F. The terms and conditions of the IPE, including, as appropriate, information describing:

(1) the responsibilities of DVR;

(2) the responsibilities that the eligible individual will assume in relation to the vocational goal;

(3) the responsibility of the individual with regard to applying for and securing comparable benefits.

G. For individuals for whom an employment outcome in a supported-employment setting has been determined to be appropriate, information identifying:

(1) the extended services needed by the eligible individual after closure;

(2) the source of extended services, or to the extent that the source of extended services cannot be identified at the time of the development of the IPE, a description of the basis for concluding that there is a reasonable expectation that such source will become available

H. As determined to be necessary, a statement of projected need for post-employment services;

I. An assurance that the eligible individual has been informed of his/her rights and the means by which the individual may express and seek remedy for any dissatisfaction, including the opportunity for a review of the rehabilitation determination, as described in Section 3, Maine DVR Appeals Process; and assurance that the eligible individual has been provided a detailed explanation of the availability of the resources within a Client Assistance Program.

SECTION 8. COMPARABLE SERVICES AND BENEFITS AND THE PARTICIPATION BY INDIVIDUALS WITH DISABILITIES IN THE COST OF DVR SERVICES

1. If an eligible individual wishes to financially participate in a service consistent with the IPE, it will be documented in the IPE.

2. If comparable services and benefits are available to the eligible individual, they must be utilized to meet, in whole or part, the cost of vocational rehabilitation services. If comparable services or benefits exist under any other program, but are not available to the individual at the time needed to satisfy the rehabilitation objectives in the individual’s IPE, DVR shall provide vocational rehabilitation services until those comparable services and benefits become available. The utilization of comparable services and benefits do not apply in the following situations:

A. if the determination of the availability would delay the provision of vocational rehabilitation to any eligible individual who is at extreme medical risk, based on medical evidence provided by an appropriate qualified medical professional;

B. if an immediate job placement would be lost due to a delay in the provision of comparable benefits.

3. The following categories of service are excepted from a determination of the availability of comparable services and benefits:

A. assessment for determining eligibility, priority for services, and vocational rehabilitation needs;

B. vocational rehabilitation counseling, guidance, and referral services;

C. (Not in use)

D. restricted awards and scholarships based on merit;

E. rehabilitation technology , including telecommunications, sensory and other technological aids and devices;

F. job-related services, including job search and placement assistance , job retention services, follow-up services and follow-along services;

G. post-employment services that would be included under (A) – (F) above.

SECTION 9. VOCATIONAL REHABILITATION SERVICES

Maine DVR will provide, as appropriate to the vocational rehabilitation needs of each eligible individual, and consistent with each individual’s informed choice, any goods or services determined necessary for the individual to achieve an employment outcome and are documented in an IPE or are necessary as part of the comprehensive assessment of rehabilitation needs. Services that are of sufficient quality will be provided, as cost effectively as possible. Core services are defined as all services included in 9.1 to 9.14, but are not limited to:

1. An assessment for determining eligibility, priority for services, and for determining vocational rehabilitation needs;

2. Vocational rehabilitation counseling and guidance and job related services, including job search and placement assistance, customized employment, job coaching, job retention services, follow-up services, and follow-along services.

3. Referral and other services necessary to help applicants and eligible individuals secure needed services from other agencies, and to advise those individuals about the Client Assistance Program,

4. Physical and mental restoration services necessary to correct, or to substantially modify, a physical or mental condition of an individual that is stable or slowly progressive. In the purchase of medical goods or services, Maine DVR uses the prevailing Maine Medicaid Assistance fee schedule, except for certain diagnostic services .

5. Home modification services, which may include those adaptive devices and structural changes necessary for the eligible to function independently, in order to achieve a vocational goal. Funds for home modifications may not be applied to the purchase or construction of a new residence. The DVR expenditure limit is $10,000 for homes owned by an individual and/or family, or $5000 for a rental property. Exceptions to the financial limit for home modifications are allowable if individual client needs cannot be addressed within the specified financial limit.

6. Post-Secondary, Vocational and Occupational Training Services;

A. Degree-Granting programs: Post-secondary training is that training offered by accredited institutions which qualify for federal financial student aid; and, is provided only when necessary to achieve an employment outcome consistent with the individual’s strengths, resources, priorities, concerns, abilities, capabilities and informed choice.

(1) Financial Considerations

(a) Maine DVR’s contribution will be based upon the degree granting institution’s Financial Aid Office (FAO) needs analysis, and the Vocational Rehabilitation Counselor’s examination of actual costs and disability related expenses. DVR’s contribution toward post-secondary training may not be provided unless maximum efforts have been made to secure assistance in whole, or in part, from the Federal Financial Student Aid Program and other sources. An individual must make and provide evidence of a reasonable effort to resolve grant awards and student loans in default prior to obligation of DVR funds. When an individual owes a refund on a previous grant award or has a student loan in default, has limited or no financial resources, has made a reasonable repayment effort, and still fails to reach an agreement with the lender/grantor, it may be reasonable to conclude that maximum effort has been made to secure grant assistance.

(b) Students are encouraged to make their own choice of educational institutions that have both the academic programs and disability related supports needed to help them reach the vocational goal in their IPE, whether they are public or private or in-state or out of state institutions. DVR will provide funding in a cost-effective manner ensuring sufficient quality to meet the student's needs. However, the maximum Maine DVR contribution will not exceed the current rate for tuition, fees, on-campus room and board, and related expenses at the Community College Program minus Pell Grant and expected student and family contribution for the first two (2) years or equivalent credit hours; except when the individual's disability related needs and/or vocational goal can be met only by a more costly available post-secondary vocational training opportunity. For students pursuing a Bachelor’s degree the remaining course work will be funded up to the University of Maine current rate for tuition, fees, on-campus room and board, and related expenses minus grant assistance and expected family contribution.

(c) Maine DVR’s contribution may not exceed the maximum DVR determined contribution of actual costs plus disability related expenses. Disability related expenses are defined as specific assistive technology, or other disability related goods and services that are required to accommodate the individual with disabilities while in attendance at, living on campus, and/or commuting to the post-secondary institution. The responsibility for reasonable accommodations for DVR clients attending postsecondary training is specified in the current Memorandum of Understanding with the University of Maine System and the Maine Community College System.

(d) DVR’s contribution cannot replace the Family contribution, except if the individual in need of the service has been determined eligible for Social Security benefits under titles II or XVI (SSI/SSDI) of the Social Security Act. Recipients of SSI/SSDI are not subject to a financial means test.

(e) When appropriate, Maine DVR shall encourage individuals with disabilities to participate in the cost of attendance through the use of scholarships, college work study and/or student loans. However, individual DVR clients will not be required to apply for scholarships or accept student loan and/or college work study. If the student is awarded scholarships and/or accepts a student loan, DVR will consider actual costs and unmet need when determining DVR contributions towards the cost of post-secondary training.

(2) Academic Requirements

(a) Students must demonstrate academic progress (successfully completing a course load of at least six (6) credit hours per semester), maintain eligibility for Financial Aid, and continue to make progress toward meeting the employment outcome goal written in the IPE. Note: If an individual encounters unforeseen or disability related circumstances that interfere with meeting the minimum course load requirements, DVR may continue sponsorship of the student who takes one course during that semester, however, VR will not support a reduced course load beyond 2 consecutive semesters.

(b) If the individual is placed on academic probation, he/she has one grading period in which to attain good standing. Maine DVR sponsorship will terminate after that grading period unless the client achieves good standing.

(3) DVR will provide post-secondary education services beyond the baccalaureate level only when:

(a) The individual requires advanced training to enter employment within the agreed upon profession in the IPE which is consistent with the individual’s strengths, resources, priorities, concerns, abilities, capabilities, career interests, and informed choice, and;

(b) The individual is unable to function in an appropriate career position while simultaneously completing an advance degree due to limitations related to their disabilities, and;

(c) Funding levels for tuition and other direct school cost will be limited to levels equal to the University of Maine Graduate rates.

B. Certification and Occupational Training

This is skill and occupational-specific training offered by a qualified training program.

(1) DVR reserves the right to use programs that meet state or national certification requirements.

(2) The skills training must provide documentation of competency at the completion of the program.

(3) Certification and Occupational Training is provided only when necessary to achieve an employment outcome in an integrated setting consistent with the individual’s strengths, resources, priorities, concerns, abilities, capabilities, informed choice, and written in the IPE.

(4) All DVR sponsored participants must apply for Federal Financial Student Aid whenever it is available

(5) Requirements specified in 9.6.1 for disability related expenses, choice of institutions, part-time students and academic progress also apply in this section.

C. On-the-job training: This is training completed at the place of employment where the individual with a disability is trained to complete the specific functions of the job during a predefined time period. Specific costs are negotiated with the employer and may include job specific classroom training, wage reimbursement for a specific period of time, equipment and/or job related material purchase and other negotiated expenses directly related to the job.

On-the-job training requires a written agreement among the client, counselor, and employer, which states the hourly wage, responsibility for Workers' Compensation coverage, and any other conditions of employment. When an eligible individual is receiving on-the-job training, the conditions of training, certification and wage payment must comply with applicable State and Federal wage and hour laws.

7. Interpreter services and note-taking services for individuals who are deaf, including tactile interpreting for individuals who are deaf-blind; reader services, rehabilitation teaching services, note-taking services and orientation and mobility services for individuals who are blind; telecommunications, sensory and other technological aids and devices.

8. Occupational licenses, tools, equipment, initial stocks and supplies necessary in order to enter an occupation. Maine DVR will not purchase land or buildings for individuals with disabilities. Maine DVR retains the right to reclaim occupational tools and equipment purchased by the agency in instances when the individual's IPE is not completed, the vocational goal is changed resulting in purchased tools and equipment not being needed and/or the case is closed “Not Rehabilitated”

9. Self-Employment: DVR will assist the person, as needed, in the development of a business plan and in the process of securing loans and other financial resources for the development of a business of which the individual will operate and own at least 51%. Hence, non-profit ventures are not considered self-employment and cannot be supported by this policy. Persons with a self-employment objective are expected to pursue resources to finance the start-up of their business. The DVR expenditure limit is $7,500 for self-sufficient business that will generate income for the individual at a sufficient level that the individual needs no supplemental income from any public source, such as SSI, SSDI, TANF, etc., and $2,500 for self-employment with income projected at a lesser level that will allow the continuance of public benefits. DVR will not expend funds to support hobbies, which are defined as activities carried on with no intent to make a profit. Exceptions to the financial limit for self-employment are allowable if necessary to achieve the individual’s IPE employment goal.

A. Every VR client that intends to pursue self-employment is required to attend self- employment orientation, and complete a comprehensive business plan, utilizing technical assistance as needed and as defined in guidance.

B. The VR Counselor will base support of the plan based on the careful review of considerations of the VR approved business consultant’s appraisal of viability and recommendations, which is a requirement for all self-sufficiency plans.

C. Costs incurred in training of the client or in the development and review of the business plan should not be included in the maximum expenditure limit. Before VR funds are expended on implementing the business plan, individuals will be expected to contribute to their self-employment venture in the form of cash, loans, grants, materials, or in-kind labor. The DVR Counselor and/or business consultant will assist individuals in exploring and applying for these additional resources.

D. For plans that are expected to provide self-sufficiency, consumers must have a good record of credit, or exhibit a pattern of managing existing debt.

E. Maine DVR retains the right to reclaim occupational tools and equipment purchased by the agency in instances when the individual's IPE is not completed, the vocational goal is changed resulting in purchased tools and equipment not being needed and/or the case is closed “Not Rehabilitated”

10. Time-limited ongoing support services for persons with the most significant disabilities who require job site training and a variety of ongoing support services to achieve a supported employment outcome in a competitive integrated setting..

A. Supported-employment is defined as follows:

(1) Competitive integrated employment, including customized employment, or employment in an integrated work setting in which an individual is working on a short-term basis toward competitive integrated employment, consistent with the strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice of the individual with ongoing support services for individuals with the most significant disabilities for whom competitive employment:

(a) has not traditionally occurred, or;

(b) has been interrupted or intermittent as a result of significant disability; and;

(c) because of the nature and severity of their disability, needs intensive supported-employment services and extended services after the transition from DVR support in order to perform the work.

(2) Short-term basis means that an individual can reasonably achieve competitive integrated employment within six (6) months of achieving a supported employment outcome, not to exceed twelve (12) months in limited circumstances based upon the needs of the individual and demonstrated progress towards competitive earnings.

B. DVR may provide extended services to a youth with a disability for a period not to exceed four (4) years or until that youth reaches Age 25. Extended services are defined as ongoing support services and other appropriate services that are needed to support an individual with a most significant disability in supported employment.

C. DVR may provide ongoing support services to individuals for up to twenty-four months, unless the IPE indicates that more than twenty-four months of services are necessary in order for the individual to achieve job stability prior to transition to extended services; or under special circumstances the eligible individual and the VR counselor jointly agree to extend the time to achieve the employment outcome identified in the IPE.

11. Post-Employment Services: An eligible individual who was determined rehabilitated may receive services necessary to assist that individual to maintain, regain or advance in employment, consistent with the individual’s strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice. Post-employment services require an amendment to the IPE. Post-employment services are available to meet rehabilitation needs that do not require a complex and comprehensive provision of services and thus, are limited in scope of two or less services and duration of six months or less. If more comprehensive services are required, and/or there is a new disabling condition and/or it has been longer than three-years since the case was closed successfully, then a new application for DVR services should be completed.

A. Support services will be provided only to support core services.

B. Services with the goal of advancement should be provided only if the disabling condition is a barrier to advancement . Services must be necessary to overcome disability related barriers to employment.

12. Rehabilitation technology services may be provided to meet the needs, and address the barriers confronted by individuals with disabilities necessary to achieve an employment outcome in areas which include education, rehabilitation, employment, transportation, independent living, and recreation.

Rehabilitation technology services may be provided at any time in the rehabilitation process, including the assessment for determining eligibility, vocational rehabilitation needs, trial work experiences, services provided under an IPE, annual reviews of ineligibility decisions, annual reviews of extended employment in rehabilitation facilities, and post-employment services. Rehabilitation technology services include vehicle modifications, telecommunications, sensory, and other technological aids and devices.

The recommended expenditure limit for vehicle modifications is $12,000. Exceptions to the financial limit for vehicle modifications are allowable if individual client needs cannot be addressed within the specified financial limit.

13. Transition services and Pre-Employment Transition Services

Transition services are a coordinated set of activities for youth with disabilities not older than Age 24 to achieve an employment outcome in a competitive integrated setting. These services promote the movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (including supported-employment), continuing and adult education, adult services, independent living, or community participation. The coordinated set of activities must be based upon the individual student’s needs, taking into account the student’s preferences and interests, and include, as appropriate, instruction, community experience, the development of employment and other post-school adult objectives, and, if appropriate, acquisition of daily living skills and functional vocational evaluation. Transition services must promote or facilitate the achievement of the employment outcome identified in the student’s individualized plan for employment.

DVR will assist in transition planning and in the development of student’s individualized education plan. For students eligible for services with an agreed upon vocational goal, DVR is expected to develop an Individualized Plan for Employment within 90 days of eligibility and, whenever possible before the student leaves the school setting. In providing transition services, DVR will facilitate the use of community-based services to the extent they are available and appropriate. Services will be provided in the most cost effective manner.

Pre-Employment Transition Services are available to eligible or potentially eligible students with a disability, who are between Age 14 (9^th grade) and no older than Age 21, enrolled in a secondary, postsecondary, or other recognized education program. Potentially Eligible students are those who meet the definition of a student with a disability and who have not yet applied and been found eligible (or ineligible) for VR services. Pre-Employment Transition Services are meant to be delivered in coordination with schools and do not relieve the schools of any of their responsibilities under the Individuals with Disabilities Education Act (IDEA). These services may be offered in group settings. Pre-Employment Transition Services include:

Job exploration counseling;

Work-based learning experiences, which may include in-school or after school opportunities, experiences outside of the traditional school setting, and/or internships;

Counseling on opportunities for enrollment in comprehensive transition or postsecondary educational programs;

Workplace readiness training to develop social skills and independent living;

(5) Instruction in self-advocacy.

14. Other goods and services determined necessary for the individual to achieve an employment outcome.

15. Support Services

Note: Support Services are only to be provided so the client can derive benefit from other core VR Services that are included the IPE or comprehensive assessment of rehabilitation needs.

A. Maintenance for additional expenses, such as food, shelter, and clothing that are in excess of usual expenses of the individual and that are necessitated by the individual’s participation in a rehabilitation program. Before providing these services with VR funds, the VR Counselor (VRC) will determine the most cost effective option available and that all other resources have been utilized.

B. Transportation

(1) Transportation including travel, and related expenses that are necessary to enable an applicant or eligible individual to participate in a vocational rehabilitation service and achieve an employment outcome in the most cost effective means possible.

(2) Transportation services (that address ongoing transportation needs) will be provided in an Individualized Employment Plan only where there is an indication that there is an ability to sustain transportation after closure.

(3) Method of Reimbursement: Cost associated with transportation will be reimbursed based on actual costs necessary to participate in the VR planned services. When using personal automobiles this may include gas, and tolls, parking and other costs such as insurance and registration, which are mutually agreed upon and preauthorized by the VRC. Where transportation is financed by the VR, the agency will only pay at a rate and frequency as mutually agreed upon and preauthorized, and in accordance with the State of Maine Office of the Controller travel reimbursement policies.

(4) Repair: The VRC is authorized to consult with a certified mechanic for an overview and advise on the value of the car and the cost/benefit of repairing a vehicle. DVR will not pay for repairs that exceed the value of the vehicle. DVR will not pay for routine vehicle maintenance expenses. DVR may limit its payment for repairs based upon the percentage that the vehicle is used for travel necessary to participate in the VR planned services.

(5) Purchase of Vehicle: Maine DVR will not assist in the purchase of a vehicle unless it is the most cost effective option available and all other resources have been utilized. Any vehicle purchased with DVR assistance will have a current State of Maine inspection sticker. DVR may limit the amount of its assistance in the purchase of a vehicle in accordance with DVR’s procedural directives.

C. Services to an applicant’s/client's family members when those services are necessary to the vocational rehabilitation of the eligible individual;

D. Personal assistance services necessary to achieve an employment outcome provided while an individual with a disability is receiving DVR services.

SECTION 10. CLOSURE

The counselor shall close an individual's case record at any time in the DVR process when it is determined that the individual is no longer eligible, is unavailable for diagnostic or planned services, chooses not to participate, or is rehabilitated.

1. Ineligibility

A. The person has no disability or substantial impediment to employment, the individual does not require DVR services to achieve a competitive integrated employment outcome, or is unwilling to consider employment in an integrated setting.

Requires:

(1) Opportunity for the individual's or his/her representative's participation in closure decision;

(2) Written notification of closure decision;

(a) Written notification of appeal rights, including the name and address of the person with whom an appeal may be filed, and of the availability of the Client Assistance Program;

(b) IPE amendment, if appropriate;

(c) Certification of ineligibility in case record that documents the reasons for closure and is dated and signed by the counselor;

(d) Referral to other agencies and community rehabilitation programs, as appropriate.

B. There is clear and convincing evidence after trial work experiences or after a period of service provision under an IPE that the individual with a disability is incapable of benefiting from DVR services in terms of achieving an employment outcome in an integrated setting for which an individual is compensated at or above minimum wage.

Requires:

(1) Opportunity for the individual's or his/her representative's participation in closure decision;

(2) Written notification of closure decision;

(3) Written notification of appeal rights, including the name and address of the person with whom an appeal may be filed, and of the availability of the Client Assistance Program;

(4) IPE amendment, if appropriate;

(5) Review of the ineligibility determination within twelve (12) months. A review is not required in situations where the individual refuses it, the individual is no longer present in the State, the individual's whereabouts are unknown, or the individual's medical condition is rapidly progressive;

(6) Certification of ineligibility in the case record that documents the reasons for closure and is dated and signed by the counselor.

(7) Referral to other agencies and community rehabilitation programs, as appropriate.

2. Closure for Reasons other than Ineligibility

A. Individual is Unavailable

The counselor may close a case when an individual is unavailable during an extended period of time for an assessment for determining eligibility and vocational rehabilitation needs, or to participate in planned vocational rehabilitation services, and the counselor has made repeated efforts to contact the individual and to encourage the individual's participation.

Requires:

(1) Rationale for closure documented in the case record;

(2) Written notification to client;

(3) Written notification of appeal rights, including the name and address of the person with whom an appeal may be filed and the availability of the Client Assistance Program;

(4) IPE amendment, when appropriate

B. Individual Refuses to Cooperate or Participate

The counselor may close an applicant or eligible client when there is sufficient evidence to conclude that the individual refuses to cooperate or to participate in an assessment for determining eligibility and rehabilitation needs or planned services that can be demonstrated to be critical to success after reasonable efforts have been made to encourage cooperation or participation.

Requires:

(1) Rationale for closure documented in the case record;

(2) Written notification to client;

(3) Written notification of appeal rights, including the name and address of

(4) the person with whom an appeal may be filed and the availability of the Client Assistance Program;

(5) IPE amendment, when appropriate.

C. Individual needs supported-employment and extended support services are not available:

The counselor may close an applicant or eligible client who needs extended supports to become competitively employed, when it becomes apparent that extended supports will not be available. All options such as agency funding from the Department of Health and Human Services , Social Security Administrations’ Ticket to Work Program, the Bureau of Rehabilitation Services’ Basic or Brain Injury Extended Support Programs, natural supports, etc., must be first explored.

Requires:

(1) Rationale for closure documented in the case record;

(2) Written notification to client;

(3) Written notification of appeal rights, including the name and address of the person with whom an appeal may be filed and the availability of the Client Assistance Program;

(4) IPE amendment, when appropriate

D. Periodic Review of Unsuccessful Closures from Extended Employment with Community Rehabilitation Providers and Closures at Less Than Minimum Wage

For all clients closed unsuccessfully in a non-integrated extended employment setting or those closed in an integrated setting in which the individual is compensated at less than minimum wage, Maine DVR must conduct a semi- annual review and reevaluation of the status of each individual for two (2) years after closure (and thereafter, if requested by the individual or, if appropriate, the individual’s representative) to determine the interests, priorities, and needs of the individual with respect to competitive integrated employment or training in competitive integrated employment. This review must include:

(1) input from the individual or, if appropriate, the individual’s representative, to determine the interests, priorities, and needs of the individual for employment or training for competitive integrated employment in the labor market;

(2) make maximum effort, including the identification of vocational rehabilitation services, reasonable accommodations, and other support services, to enable the eligible individual to benefit from training in, or to be placed in competitive integrated employment ; and

(3) provide services designed to promote movement from extended employment to competitive integrated employment, including supported‑employment, independent living, and community participation.

3. Closure of Clients Who Have Achieved An Employment Outcome

A. In order to determine that a client has achieved competitive integrated employment , the case record must document the following:

(1) the provision of services under the individual’s IPE contributed to the achievement of the employment outcome that is described in the individual’s IPE;

(2) the employment outcome is consistent with the individual’s strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice as agreed upon in the individual’s IPE;

(3) the employment outcome is in an integrated setting for which the individual is compensated at or above minimum wage , consistent with the individual’s informed choice as agreed upon in the individual’s IPE;

(4) the individual has maintained the employment outcome for at least 90 days; necessary to ensure the stability of the employment outcome and the individual no longer needs vocational rehabilitation services.

(5) the individual and the rehabilitation counselor consider the employment outcome to be satisfactory and agree that the individual is performing well on the job;

(6) the individual is informed, through appropriate modes of communication, including written notification, of the availability of post-employment services; and

(7) written notification of appeal rights, including the name and address of the person with whom an appeal may be filed and the availability of the Client Assistance Program is provided;

B. Closure of Clients in Supported-employment

Clients have achieved a supported-employment outcome when the following conditions are met:

(1) the individual has substantially met the goals and objectives of his/her IPE;

(2) extended support services are immediately available to preclude any interruption in the provision of the ongoing support needed to maintain employment;

(3) the individual has maintained competitive integrated employment for at least ninety (90) days after the transition to extended services

(4) the individual or representative and the rehabilitation counselor consider the employment outcome to be satisfactory and agree that the individual is performing well on the job;

the individual or representative is informed, through appropriate modes of communication, including written notification, of the availability of post-employment services: and

(6) Written notification of appeal rights, including the name and address of the person with whom an appeal may be filed and the availability of the Client Assistance Program, is provided.

History

• STATUTORY AUTHORITY: Title 26 §1417
• EFFECTIVE DATE: May 23, 1981
• AMENDED: May 23, 1981 - Item 474
• AMENDED: September 3, 1983 -Item 2010
• AMENDED: April 2, 1984 - Item 130
• AMENDED: May 2, 1984 - Item 2300
• AMENDED: January 9, 1985 - Items 465 and 480
• AMENDED: June 9, 1986 - replaces Casework Manual
• AMENDED: August 1, 1989
• AMENDED: August 4, 1990
• AMENDED: October 30, 1991 - Sections 4 and 7
• AMENDED: August 19, 1992 - Sections 4, 5, 7 and 8 (EMERGENCY)
• AMENDED: July 5, 1993
• AMENDED: September 18, 1994 - Sec. 4 & 6
• NON-SUBSTANTIVE CORRECTIONS: August 19, 1997 - minor spelling and formatting, agency name corrections.
• AMENDED: July 1, 1999 (also repealed Ch. 551)
• NON-SUBSTANTIVE CORRECTIONS: November 9, 1999 - minor spelling, formatting and grammar.
• AMENDED: July 5, 2004 - filing 2004-246
• AMENDED: November 6, 2007 – filing 2007-471
• AMENDED: October 25, 2008 – filing 2008-487
• AMENDED: January 1, 2010 – filing 2009-643
• AMENDED: January 1, 2019 – filing 2018-270
• AMENDED: June 29, 2021 – filing 2021-134

Chapter 5 Brain Injury Extended Support Program

Code Me. R. 12-152 Ch. 5 Brain Injury Extended Support Program {#sec-12-152-ch.-5 omnilex-key=us-me-regs-official--dept-labor--12-152 Ch. 5}

SECTION 1. PURPOSE

The purpose of this program is to provide ongoing extended supports to individuals with brain injuries who are VR consumers with the most significant disabilities once training has been completed. The program provides financial assistance to providers of ongoing support and/or employers to help defray the additional cost incurred providing job coaching, training and supervision on a supported work site.

SECTION 2. DEFINITIONS

Supported Employment means competitive integrated employment, including customized employment, or employment in an integrated work setting in which an individual with a most significant disability, including a youth with a most significant disability, is working on a short-term basis toward competitive integrated employment that is individualized, and customized, consistent with the unique strengths, abilities, interests, and informed choice of the individual, including with ongoing support services for individuals with the most significant disabilities –

1. For whom competitive integrated employment has not historically occurred, or for whom competitive integrated employment has been interrupted or intermittent as a result of a significant disability; and
2. Who, because of the nature and severity of their disabilities, need intensive supported employment services and extended services after the transition from support provided by the designated State unit, in order to perform this work.

Extended Support Services means ongoing support services and other appropriate services, needed to support and maintain an individual with a most significant disability in supported employment, that –

(A) are provided singly or in combination and are organized and made available in such a way as to assist an eligible individual in maintaining supported employment;

(B) are based on a determination of the needs of an eligible individual, as specified in an individualized plan for employment; and

(C) are provided by a State agency, a nonprofit private organization, employer, or any other appropriate resource, after an individual has made the transition from support provided by the designated State unit.

3. Brain Injury: "Brain Injury" means an insult to the brain resulting directly or indirectly from trauma, anoxia, vascular lesions or infection, which:

A. is not of a degenerative or congenital nature;

B. can produce a diminished or altered state of consciousness resulting in impairment of cognitive abilities or physical functioning;

C. can result in the disturbance of behavioral or emotional functioning;

D. can be either temporary or permanent; and

E. can cause partial or total functional disability or psychological maladjustment.

SECTION 3. BRAIN INJURY EXTENDED SUPPORT APPEALS PROCESS

An applicant for or recipient of Extended Support services who is dissatisfied with any determination made by the Bureau of Rehabilitation Services concerning the furnishing or denial of services may request a timely review of the determination. The Bureau shall make reasonable accessibility accommodations for the individual with disabilities during the appeals process. Whenever possible, the Bureau will attempt to resolve conflicts through Informal Review or through Mediation. An individual may request a Due Process Hearing immediately without having to go through other appeal steps.

1. Informal Review

Whenever possible, Maine DVR or DBVI will attempt to resolve conflicts informally, prior to Mediation or a Due Process Hearing. An individual may request a meeting with the counselor, the appropriate supervisor, and/or a Client Assistance Program representative, if desired, to explore options for resolving any conflicts. An individual may request Mediation or a Due Process Hearing immediately, without having to go through the informal process.

2. Continuation of Services Pending Completion of the Hearing

Pending a final determination of an appeal hearing, the DVR or DBVI may not suspend, reduce, or terminate services being provided under an Individualized Plan of Employment (IPE), unless the services were obtained through misrepresentation, fraud or collusion of the individual, or unless the individual, or individual’s authorized representative, requests suspension, reduction, or termination of services.

3. Time Frames

The time frames listed under Section 4. Mediation and 5. Due Process Hearing may be waived if both parties agree to an extension of time in order to conduct the Mediation or Hearing, and render a decision.

4. Mediation

A. Mediation is a voluntary process conducted by a qualified and impartial mediator. At any point during the mediation process, either party, or the mediator, may elect to terminate the mediation.

B. An individual must request Mediation within thirty (30) calendar days of the agency notice regarding the provision or denial of services that is in question. The request shall be in writing, and the request shall describe the complaint. The request should be sent to the Director of DVR or DBVI who will immediately forward it to a qualified mediator.

C. The mediator will commence a mediation meeting within fifteen (15) calendar days of receipt of the request, and shall be held in a location that is convenient to the parties in the dispute.

D. Mediation will be conducted in accordance with the Court Alternative Dispute Resolution Service’s (CADRES) standards on ethics and neutrality.

E. An agreement reached in the mediation process shall be set forth in a written mediation agreement, and shall be signed by both parties.

F. Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding in accordance with CADRES confidentiality standards.

G. The individual may be represented at the mediation, including but not limited to, representation by the Client Assistance Program.

H. The Mediation process may not be used to deny or delay the individual’s right to pursue resolution of the dispute through a due process hearing within the specified time period.

5. Due Process Hearing

A. Due Process Hearing is a procedure whereby an individual who is dissatisfied with any determinations concerning the provision or denial of DVR or DBVI services may seek a re-determination of agency action before an impartial hearing officer.

B. The individual must request a Due Process Hearing within thirty (30) calendar days of the agency notice regarding the provision or denial of service, if Mediation was not requested.

C. If no request for Due Process Hearing is made within thirty (30) calendar days, the agency decision is considered final.

D. The request for Due Process Hearing shall be in writing, and shall describe the complaint. Maine DVR or DBVI will accommodate an individual’s disability and offer assistance, if appropriate, in this process. The request should be sent to the Director of DVR or DBVI who will immediately forward the request to a qualified hearing officer.

E. A pre-hearing conference may be held to clarify issues and explore options for resolving grievances.

F. The Due Process Hearing shall be conducted within sixty (60) calendar days of receipt of the request for Due Process Hearing.

G. A Due Process Hearing shall be conducted by an impartial hearing officer assigned on a random basis, from the pool of qualified persons identified jointly by the Director of Maine DVR or DBVI and the State Rehabilitation Council.

H. Maine DVR or DBVI may not deny or dismiss a request for Due Process Hearing unless the individual or their representative:

(1) withdraws the request in writing; or

(2) is adjudged by the Due Process Hearing Officer to be in default for failure to appear at the hearing without good cause.

I. The Due Process Hearing shall be conducted and will include an opportunity for the individual or the individual’s representative to present witnesses and relevant evidence . A decision shall be issued in accordance with Maine's Administrative Procedure Act, 5 M.R.S.A. Chapter 375, subchapter IV.

J. The Due Process Hearing Officer will issue a full written report of the findings and grounds for the decision within thirty (30) days of the completion of the hearing.

K. The Hearing Officer’s decision is final unless either party brings a civil action.

6. Civil Action

Any party who disagrees with the final decision of the Due Process Hearing has the right to file a petition in Superior Court under Rule 80C of the Maine Rules of Civil Procedure.

SECTION 4. ELIGIBILITY

1. In order to be eligible for the Brain Injury Extended Support Program the individual must:

A. meet the definition of an individual with a Brain Injury found in Section 2.3 of these rules;

B. be a Vocational Rehabilitation client determined to be appropriate for supported employment/work.

C. be an individual who meets the definition of being most significantly disabled as defined in Section 5. 3. A, of the Division of Vocational Rehabilitation Rules (12-152 Chapter 1) or in Section 6, 1. A, of the Division of the Blind and Visually Impaired Rules (12-150 Chapter 101);

D. be employed in a supported employment/work setting as defined in 2.1 of this rule ;

E. require ongoing support services in order to maintain employment;

F. have received written approval from the Bureau of Rehabilitation Services Regional Manager for entry into the Brain Injury Extended Support Program.

SECTION 5. SERVICES TO BE PROVIDED BY THE BRAIN INJURY EXTENDED SUPPORT PROGRAM

Funds from this program may be used to purchase those work-related support services needed for the worker in supported employment/work to maintain employment.

SECTION 6. CASE MANAGEMENT

1. It is the responsibility of the Division Director or their designee to monitor the worker receiving extended support services to ensure services are appropriate and allowable under the rules.

2. Division Director or their designee shall receive, as a minimum, quarterly reports from the provider of extended support services. Annually, in the month the worker entered into the Extended Support Program the Division Director or their designee will evaluate the worker's readiness for competitive employment without extended support.

SECTION 7. SPENDING LIMITS

The maximum annual expenditure of $7,500 for Extended Support services shall be allowed for each eligible person served in this program.

SECTION 8. TERMINATION FROM HEAD INJURY EXTENDED SUPPORT PROGRAM

An individual participating in the program may be terminated if:

1. it is agreed upon by the worker and/or their guardian, Rehabilitation Counselor, and the provider of extended support that such services, are no longer needed to maintain employment; or

2. the worker is no longer interested in receiving extended support services and the termination is requested by the worker; or

3. the worker is unable to maintain employment for two (2) consecutive months.

SECTION 9. RETURING TO VOCATIONAL REHABILITATION SERVICES

Individuals can return to Vocational Rehabilitation (VR) services by reapplying forservices. Once an individual has made the decision to reapply for services, the next step is to work closely with a VR Counselor to determine their eligibility. Once the application has been received, the individual will be contacted to schedule an intake. Information is gathered at the intake regarding how the individual’s disability impedes their ability to work, and if they require vocational rehabilitation services to attain, maintain, or advance in employment. An individual may continue their current employment while in application status with VR.

History

• STATUTORY AUTHORITY: 26 MRSA Chapter 19, Subchapter 2, Article 1
• EFFECTIVE DATE: July 1, 1981 (as “Referral of Out of School Students”)
• REPEALED: August 1, 1990
• EFFECTIVE DATE: January 16, 1991 (as “Head Injury Extended Support Program Rules”)
• EFFECTIVE DATE (ELECTRONIC CONVERSION): May 19, 1996
• NON-SUBSTANTIVE CORRECTIONS: August 20, 1997 - corrections of agency names, minor spelling and formatting, header added, history corrected
• AMENDED: June 6, 2010 – filing 2010-215
• APAO ACCESSIBILITY CHECK: November 20, 2025
• AMENDED: November 23, 2025 – filing 2025-226

Chapter 6 Basic Extended Support Rules

Code Me. R. 12-152 Ch. 6 Basic Extended Support Rules {#sec-12-152-ch.-6 omnilex-key=us-me-regs-official--dept-labor--12-152 Ch. 6}

SECTION 1. PURPOSE

The purpose of the Basic Extended Support Program is to provide ongoing support needs to VR consumers with the most significant disabilities once training has been completed. The program provides financial assistance to providers of ongoing support and/or employers to help defray the additional cost incurred providing job coaching, training and supervision on a supported work site.

SECTION 2. DEFINITIONS

Supported Employment means competitive integrated employment, including customized employment, or employment in an integrated work setting in which an individual with a most significant disability, including a youth with a most significant disability, is working on a short-term basis toward competitive integrated employment that is individualized, and customized, consistent with the unique strengths, abilities, interests, and informed choice of the individual, including with ongoing support services for individuals with the most significant disabilities –

1. For whom competitive integrated employment has not historically occurred, or for whom competitive integrated employment has been interrupted or intermittent as a result of a significant disability; and

2. Who, because of the nature and severity of their disabilities, need intensive supported employment services and extended services after the transition from support provided by the designated State unit, in order to perform this work.

Extended Support Services means ongoing support services and other appropriate services, needed to support and maintain an individual with a most significant disability in supported employment, that –

(A) are provided singly or in combination and are organized and made available in such a way as to assist an eligible individual in maintaining supported employment;

(B) are based on a determination of the needs of an eligible individual, as specified in an individualized plan for employment; and

(C) are provided by a State agency, a nonprofit private organization, employer, or any other appropriate resource, after an individual has made the transition from support provided by the designated State unit.

SECTION 3. EXTENDED SUPPORT APPEALS PROCESS

An applicant for or recipient of the Basic Extended Support Program who is dissatisfied with any determination made by the Bureau of Rehabilitation Services concerning the furnishing or denial of services under this program may request a timely review of the determination. The Bureau shall make reasonable accessibility accommodations for the individual with disabilities during the appeals process. Whenever possible, the Bureau will attempt to resolve conflicts through Informal Review or through Mediation. An individual may request a Due Process Hearing immediately without having to go through other appeal steps.

1. Informal Review

Whenever possible, Maine DVR or DBVI will attempt to resolve conflicts informally, prior to Mediation or a Due Process Hearing. An individual may request a meeting with the counselor, the appropriate supervisor, and/or a Client Assistance Program representative, if desired, to explore options for resolving any conflicts. An individual may request Mediation or a Due Process Hearing immediately, without having to go through the informal process.

2. Continuation of Services Pending Completion of the Hearing

Pending a final determination of an appeal hearing, the DVR or DBVI may not suspend, reduce, or terminate services being provided under an Individualized Plan of Employment (IPE), unless the services were obtained through misrepresentation, fraud or collusion of the individual, or unless the individual, or individual’s authorized representative, requests suspension, reduction, or termination of services.

3. Time Frames

The time frames listed under Section 4. Mediation and 5. Due Process Hearing may be waived if both parties agree to an extension of time in order to conduct the Mediation or Hearing, and render a decision.

4. Mediation

A. Mediation is a voluntary process conducted by a qualified and impartial mediator. At any point during the mediation process, either party, or the mediator, may elect to terminate the mediation.

B. An individual must request Mediation within thirty (30) calendar days of the agency notice regarding the provision or denial of services that is in question. The request shall be in writing, and the request shall describe the complaint. The request should be sent to the Director of DVR or DBVI who will immediately forward it to a qualified mediator.

C. The mediator will commence a mediation meeting within fifteen (15) calendar days of receipt of the request, and shall be held in a location that is convenient to the parties in the dispute.

D. Mediation will be conducted in accordance with the Court Alternative Dispute Resolution Service’s (CADRES) standards on ethics and neutrality.

E. An agreement reached in the mediation process shall be set forth in a written mediation agreement, and shall be signed by both parties.

F. Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding in accordance with CADRES confidentiality standards.

G. The individual may be represented at the mediation, including but not limited to, representation by the Client Assistance Program.

H. The Mediation process may not be used to deny or delay the individual’s right to pursue resolution of the dispute through a due process hearing within the specified time period.

5. Due Process Hearing

A. Due Process Hearing is a procedure whereby an individual who is dissatisfied with any determinations concerning the provision or denial of DVR or DBVI services may seek a re-determination of agency action before an impartial hearing officer.

B. The individual must request a Due Process Hearing within thirty (30) calendar days of the agency notice regarding the provision or denial of service, if Mediation was not requested.

C. If no request for Due Process Hearing is made within thirty (30) calendar days, the agency decision is considered final.

D. The request for Due Process Hearing shall be in writing, and shall describe the complaint. Maine DVR or DBVI will accommodate an individual’s disability and offer assistance, if appropriate, in this process. The request should be sent to the Director of DVR or DBVI who will immediately forward the request to a qualified hearing officer.

E. A pre-hearing conference may be held to clarify issues and explore options for resolving grievances.

F. The Due Process Hearing shall be conducted within sixty (60) calendar days of receipt of the request for Due Process Hearing.

G. A Due Process Hearing shall be conducted by an impartial hearing officer assigned on a random basis, from the pool of qualified persons identified jointly by the Director of Maine DVR or DBVI and the State Rehabilitation Council.

H. Maine DVR or DBVI may not deny or dismiss a request for Due Process Hearing unless the individual or their representative:

(1) withdraws the request in writing; or

(2) is adjudged by the Due Process Hearing Officer to be in default for failure to appear at the hearing without good cause.

I. The Due Process Hearing shall be conducted and will include an opportunity for the individual or the individual’s representative to present witnesses and relevant evidence . A decision shall be issued in accordance with Maine's Administrative Procedure Act, 5 M.R.S.A. Chapter 375, subchapter IV.

J. The Due Process Hearing Officer will issue a full written report of the findings and grounds for the decision within thirty (30) days of the completion of the hearing.

K. The Hearing Officer’s decision is final unless either party brings a civil action.

6. Civil Action

Any party who disagrees with the final decision of the Due Process Hearing has the right to file a petition in Superior Court under Rule 80C of the Maine Rules of Civil Procedure.

SECTION 4. ELIGIBILITY

1. To be eligible for the Extended Support Program the individual must:

A. be a Vocational Rehabilitation client determined to be appropriate for supported employment/work.

B. be an individual who meets the definition of being most significantly disabled as defined in Section 5.3.A., in the Division of Vocational Rehabilitation Rules (12-152 Chapter 1) or Section 6.1.A., in the Division for the Blind and Visually Impaired Rules (12-150 Chapter 101);

C. be employed in a supported employment/work setting as defined in 2.1 of this rule;

D. require ongoing support services in order to maintain employment;

E. have received written approval from the Bureau of Rehabilitation Services Regional Manager for entry into the Basic Extended Support Program.

3. The employer and/or provider must meet the following requirements:

A. the employer or provider must provide in writing their willingness to participate in the program;

B. the employer must have written personnel policies that guarantee the same rights and benefits to participants in this program as to other employees working similar hours in a similar position;

C. the employer must have appropriate Department of Labor certification when required.

SECTION 5. ALLOWABLE SERVICES UNDER THE STATE EXTENDED SUPPORT PROGRAM

Funds from this program may be used to purchase work related support services needed for the worker to maintain employment.

SECTION 6. CASE MANAGEMENT

1. It is the responsibility of the Division Director or their designee to monitor the worker receiving extended support services to ensure services are appropriate and allowable under the rules.

2. Division Director or their designee shall receive, as a minimum, quarterly reports from the provider of extended support services. Annually, in the month the worker entered into the Extended Support Program the Division Director or their designee will evaluate the worker's readiness for competitive employment without extended support.

SECTION 7. SPENDING LIMIT

A maximum annual expenditure of $7,500 for extended support services shall be allowed for each eligible person served in this program.

SECTION 8. TERMINATION FROM EXTENDED SUPPORT PROGRAM

Any individual participating in the program may be terminated if:

1. if it is agreed upon by the worker and/or guardian, Bureau of Rehabilitation Services representative, and job coach that ongoing support services are no longer needed to maintain employment;

2. the worker is no longer interested in receiving service and termination is requested by the worker;

3. the worker is unable to maintain employment for two (2) consecutive months.

SECTION 9. Returing to Vocational Rehabilitation Services

Individuals can return to Vocational Rehabilitation (VR) services by reapplying for services. Once an individual has made the decision to reapply for services, the next step is to work closely with a VR Counselor to determine their eligibility. Once the application has been received, the individual will be contacted to schedule an intake. Information is gathered at the intake regarding how the individual’s disability impedes their ability to work, and if they require vocational rehabilitation services to attain, maintain, or advance in employment. An individual may continue their current employment while in application status with VR

History

• STATUTORY AUTHORITY: 26 MRSA Chapter 19, Subchapter 2, Article 1
• EFFECTIVE DATE: June 14, 1986
• AMENDED: January 16, 1991
• EFFECTIVE DATE (ELECTRONIC CONVERSION): May 16, 1996
• NON-SUBSTANTIVE CORRECTIONS: August 20, 1997 - agency name corrections, minor spelling and formatting, header added
• AMENDED: June 6, 2010 – filing 2010-216
• APAO ACCESSIBILITY CHECK: November 20, 2025 (no issues detected)
• AMENDED: November 23, 2025 – filing 2025-224

Chapter 7 Independent Living Services Program Policy Manual

Code Me. R. 12-152 Ch. 7 Independent Living Services Program Policy Manual {#sec-12-152-ch.-7 omnilex-key=us-me-regs-official--dept-labor--12-152 Ch. 7}

Independent Living Services Program

RULES

Effective February 6, 2008

BUREAU OF REHABILITATION SERVICES

DIVISION OF VOCATIONAL REHABILITATION

INDEPENDENT LIVING SERVICES PROGRAM RULES

SECTION PAGE

1. Purpose and General Requirements of the Independent Living Services Program 1

2. Eligibility

3. Residency

4. Timeliness

5. Case Records

6. Case Service Expenditures

7. Advocacy and Referral

8. Consumer Awareness of Rights of Appeal

9. Confidentiality 2

10. Definition of Written Consent

11. Release to Consumer or Duly Authorized Representative

12. Release to Other Programs

13. Release for Audit, Evaluation or Research

14. Release of Records for Testimony

15. ILS Program Appeals Process 3

16. Informal Review

17. Continuation of Services Pending Completion of the Hearing

18. Time Frames

19. Mediation

20. Due Process Hearing

21. Civil Action

22. Application and Eligibility 6

23. Application for ILS Program Services

24. Eligibility Criteria and Evaluation

25. Eligibility Decision and Documentation

26. Order of Selection

27. Independent Living Plan (ILP) 9

28. Elements of the ILP

29. ILP Amendment

30. Comparable Benefits and Participation by Consumers

in the Cost of Independent Living Program Services 10

1. Consumer Financial Contribution

2. Comparable Services and Benefits

3. Services Not Provided by Other Programs

4. Independent Living Program Services 10

5. Evaluation Services

6. Core Services

7. Other Eligible Services

8. Reclaiming Goods

9. Closure 13

10. Ineligibility

11. No Longer Eligible

12. Achieved ILP Goals

13. Services After Closure 14

SECTION 1. PURPOSE AND GENERAL REQUIREMENTS OF THE INDEPENDENT LIVING SERVICES PROGRAM

Summary: The Independent Living Services Program, hereinafter referred to as the (ILS Program), in conjunction with the Division of Vocational Rehabilitation (DVR), Bureau of Rehabilitation Services, (BRS) assists people who have significant disabilities to live more independently in their homes and communities. The program provides and arranges needed IL services subject to the availability of funds. The program is also an advocacy program for people with disabilities and their families.

The ILS Program assists eligible persons with significant disabilities to overcome substantial barriers to functioning independently in family or community. The IL process is based upon an Independent Living Plan (ILP) which is designed to achieve or maintain independence. Services provided to people with disabilities must directly relate to the removal of barriers to independent living, as identified in the Certificate of Eligibility. Services must be provided in a cost effective and responsible manner.

The ILS Program is operated in compliance with the Federal Rehabilitation Act of 1973, as Amended. The legal authorities for the policies contained in the ILS Services Policy Manual are Title 29 U.S.C. 720 et seq.; Title 34 CFR Part 365 in the Federal Register, and Title 26 M.R.S.A., Chapter 19, section 1411, et seq.

The consumer is the foundation of the ILS Program. All services shall be consumer planned and developed within the scope of the program guidelines. The direct and active participation of the eligible consumer is required within this program to the maximum extent feasible for the individual. Each phase of the service delivery process shall be documented within the case record.

1. Eligibility is determined without regard to sex, race, creed, age, color, national origin or type of disability.

2. There is no residency requirement which would exclude from services a person living in Maine.

3. The ILS Program shall process referrals in an equitable and expeditious manner.

4. The ILS Program shall establish and maintain a case record for each applicant for, and recipient of, IL Services. The case record will contain all required documentation.

5. Case service expenditures shall require written authorization by the ILS Program administrator prior to the initiation of the services or the purchase of any goods.

6. When appropriate, ILS Program staff shall provide advocacy or referral necessary to support people with significant disabilities in securing needed services or goods from other agencies and organizations.

7. Each applicant or individual provided IL services shall be informed of the procedure for requesting a review and/or a re-determination of agency action concerning the furnishing or denial of services, including the names and addresses of individuals with whom appeals may be filed and of the availability of the Client Assistance Program.

SECTION 2. CONFIDENTIALITY

All personal information acquired by the ILS shall only be used and released for purposes directly connected with the administration of the ILS Program. Use and release of personal information acquired by the ILS Program shall conform with applicable Federal Regulations and State laws. Personal information will be released with the informed written consent of the consumer or their duly authorized representative.

1. For purposes of this policy, informed written consent shall mean a document that:

A. is in language and a communication format that the person understands. Alternative communication shall be provided to the consumer, such as voice, American Sign Language, Braille, or augmented technology, and shall be documented in the case record as declared by the consumer for the purpose of releasing or sharing specific information with parties designated by the consumer;

B. is signed and dated by the consumer or duly authorized representative;

C. is specific in designating the ILS Program as the agency or person authorized to disclose information;

D. is specific as to the nature of the information which may be released;

E. specifically designates the parties by whom the information may be used;

F. specifically indicates the duration of the release of information.

2. Release to Consumer or Duly Authorized Representative

Upon informed written consent by the individual with disabilities or duly authorized representative, all information in the case record shall be made available in a timely manner, except:

A. information obtained from outside the ILS Program may be released only under the conditions established by the outside agency or organization.

3. Release To Other Programs

Upon informed written consent of the individual with disabilities or duly authorized representative, Maine ILS Program may release to another agency or organization information that may be released to the individual with disabilities and only to the extent that the other agency demonstrates that the information is necessary for its program.

A. Maine ILS Program must release personal information, with or without consent of the individual, if required by State and Federal law, if in response to investigations in connection with law enforcement, fraud, or abuse, (except where expressly prohibited by Federal or State laws or regulations), and in response to an order issued by a judge, magistrate, or other authorized judicial officer.

B. The Maine ILS Program may release personal information without informed written consent of the individual in order to protect the individual or others when the individual poses a threat to his/her safety or the safety of others except for HIV test results which may not be released without informed written consent of the individual.

4. Release for Audit, Evaluation or Research

At the discretion of the ILS Program Manager/Supervisor, personal information may be released to an organization, agency or individual engaged in audit, evaluation, or research only for purposes directly connected with the administration of the ILS Program, or for purposes which would significantly improve the quality of life for people with disabilities and only if the organization, agency or individual assures that:

A. the information shall be used only for the purposes for which it is being provided;

B. the information shall be released only to persons officially connected with the audit, evaluation or research;

C. the information shall not be released to the involved individual;

D. the information shall be managed in a manner to safeguard confidentiality; and

E. the final product will not reveal any personal identifying information without the informed written consent of the involved individual or duly authorized representative.

5. Release of Records for Testimony

An employee of a Maine ILS Program shall not testify in court or in an administrative hearing; nor release records without the consent of the individual or their duly authorized representative unless ordered to do so by a judge, magistrate, or other authorized judicial officer.

SECTION 3. ILS PROGRAM APPEALS PROCESS

An applicant for or recipient of the IL Services who is dissatisfied with any determination made by an ILS Program staff concerning the furnishing or denial of services may request (or, if appropriate, may request through the individual’s duly authorized representative) a timely review of the determination. ILS Program services shall make reasonable accommodation as required in the conduct of the appeals process.

1. Whenever possible, ILS Program staff shall attempt to resolve conflicts informally prior to Mediation or a Due Process Hearing. An individual may request a meeting with the counselor, the appropriate supervisor, and a Client Assistant Program (CAP) representative, if desired, to explore options for resolving any conflicts.

2. Continuation of Services Pending Completion of the Hearing

Pending a final determination of an appeal hearing, the ILS Program may not suspend, reduce, or terminate services being provided under an Independent Living Plan (ILP), unless the services were obtained through misrepresentation, fraud or collusion of the individual or duly authorized representative, or the individual or duly authorized representative requests suspension, reduction, or termination of services.

3. Time Frames

The time frames listed under Section 3.3 Mediation and 3.4 Due Process Hearing may be waived if both parties agree to an extension of time in order to conduct the Mediation or Hearing or to render a decision.

4. Mediation

A. The Department of Labor Mediation process is an option to resolve conflicts when a resolution is not possible informally. Mediation is voluntary for both parties and either party may withdraw at any time. The goal of the mediation is to help the parties reach a mutually satisfactory resolution of their dispute.

B. An individual must request Mediation within thirty (30) calendar days of the ILS Program notice regarding the provision or denial of services that are in question. The request shall be in writing and the request shall describe the complaint. The request should be sent to the Director of DVR who will immediately forward it to the Department of Labor, Division of Administrative Hearings.

C. The Division of Administrative Hearings will commence a mediation meeting within fifteen (15) calendar days of receipt of the request and shall be held in a location that is convenient to the parties in the dispute.

D. Mediation will be conducted in accordance with the Court Alternative Dispute Resolution Service’s (CADRES) standards on ethics and neutrality.

E. An agreement reached in the mediation process shall be set forth in a written mediation agreement and shall be included in the case record.

F. Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding in accordance with CADRES confidentiality standards.

G. The individual may be represented at the mediation. Representation may include but is not limited to, representation by the Client Assistance Program.

5. Due Process Hearing

A. A Due Process Hearing is a procedure whereby an individual who is dissatisfied with any determination concerning the provision or denial of ILS Program services may seek a re-determination of ILS Program action before an impartial hearing officer.

B. The individual must request a Due Process Hearing within thirty (30) calendar days of the ILS Program notice regarding the provision or denial of service if Mediation was not requested.

C. If no request for Due Process Hearing is made within thirty (30) calendar days, the ILS Program decision is considered final.

D. The request for Due Process Hearing shall be in writing and shall describe the complaint. The ILS Program will accommodate an individual’s disability and offer assistance in this process. The request should be sent to the Director of DVR who will immediately forward the request to the Department of Labor, Division of Administrative Hearings.

E. A pre-hearing conference will be held to clarify issues and explore options for resolving the dispute.

F. The Due Process Hearing shall be conducted within sixty (60) calendar days of receipt of the request for Due Process Hearing.

G. A Due Process Hearing shall be conducted by an impartial hearing officer assigned on a random basis, from the pool of qualified persons identified jointly by the Director of DVR and the State Rehabilitation Council.

H. The ILS Program and DVR may not deny or dismiss a request for Due Process Hearing unless the individual or his/her representative:

(1) withdraws the request in writing; or

(2) is adjudged by the Due Process Hearing Officer to be in default for failure to appear at the hearing without good cause.

I. The Due Process Hearing shall be conducted and will include an opportunity for the individual or the individual’s representative to present witnesses and relevant evidence. A decision shall be issued in accordance with Maine's Administrative Procedure Act, 5 M.R.S.A., Chapter 375, subchapter IV.

J. The Due Process Hearing Officer shall issue a full written report of the findings and grounds for the decision within thirty (30) days of the completion of the hearing.

K. The Hearing Officer’s decision is final unless either party brings a civil action.

5. Civil Action

Any party who disagrees with the final decision of the Due Process Hearing has the right to file a petition in Superior Court under Rule 80C of the Maine Rules of Civil Procedure.

SECTION 4. ELIGIBILITY DETERMINATION

1. Application for ILS Program Services

Any person who applies for services shall undergo an eligibility determination, the results of which shall be shared with the individual. An applicant is anyone who signs a dated application or letter requesting IL Services. An evaluation(s) will take place, at no cost to the consumer, to provide information for the eligibility decision. At any time in this process that it is determined the individual is not eligible for IL Services, the evaluation shall cease. Appropriate notification will be provided to the individual.

2. Eligibility Criteria and Evaluation

An individual is eligible for ILS Program services if an evaluation documents the following:

A. That the individual has a significant physical or mental disability which for that individual constitutes or results in a severe limitation(s) in ability to function independently in family or community setting;

B. That IL Services may reasonably be expected to assist the individual to function independently in a family or community setting; and

C. The consumer’s ability to direct the IL service planning and selection with or without assistance.

D. The evaluation(s) shall take into consideration any relevant case record materials available from the ILS Program or other sources. A special diagnostic study(ies) shall be conducted for purposes of determining eligibility for IL Services only if already available information is not complete, relevant, or current. The evaluation(s) shall be sufficient in scope to determine which services will best meet the current needs of the individual for functioning more independently in family or community setting.

3. Eligibility Decision and Documentation

Upon completion of the evaluation, the ILS Program staff responsible for determining eligibility shall make one of the following decisions: The applicant is eligible; or, The applicant is ineligible.

A. Certification of Eligibility

For each individual determined eligible for IL Program services, the case record must include documentation of the presence of a significant disability and a Certification of Eligibility which is signed and dated by the authorizing ILS Program staff and which documents:

(1) how the disability(ies) result in significant limitations in ability to function independently in family or community settings;

(2) how there is a reasonable expectation that ILS Program services will assist the individual’s ability to function independently in a family or community setting; and

(3) how the consumer’s direct and active participation in the process will be accomplished.

B. Certification of Ineligibility

In all cases where the authorizing ILS Program staff documents that IL Services cannot be expected to assist an individual to function more independently in family or community setting, there must be a certification dated and signed by the authorizing ILS Program staff. If an applicant has been determined to be ineligible, then the certification must be documented as follows:

(1) Reason(s) for Ineligibility

(a) The service provider may determine an applicant to be ineligible for IL Services only after full consultation with the applicant or duly authorized representative, or after providing a clear opportunity for this consultation;

(b) The applicant or duly authorized representative shall receive written, or by other appropriate media, notification of the agency action, appeal rights, and the availability of advocacy services through the Client Assistance Program;

(c) The service provider shall provide a detailed explanation of the availability and purposes of the Client Assistance Program including information on how to contact the program; and

(d) If appropriate, the service provider shall refer the applicant to other agencies and facilities, including the state's vocational rehabilitation program.

(2) Review of Ineligibility Determination

(a) If an applicant for IL Services has been found ineligible, the service provider shall review the applicant's current status no later than twelve (12) months after the determination has been made;

(b) The review need not be conducted in situations where the applicant has refused the review, the applicant is no longer present in the state, or the applicant’s whereabouts are unknown; and

(c) All review efforts will be documented in the case record.

4. Order of Selection

A. At any time services cannot be provided within a reasonable time to all eligible individuals, the ILS Program Order of Selection shall be implemented. A reasonable time will be determined by the Director of DVR in consultation with the Statewide Independent Living Council.

B. After determining eligibility, ILS Program staff shall follow the Order of Selection in purchasing services.

C. A Statewide waiting list shall be established by the ILS Program provider in consultation with the DVR Grant Manager. The waiting list will be organized by Priority Status and chronological order of the Eligibility date.

Eligible individuals shall be served in the following priority order:

(1) Priority 1 Status

Those eligible adults who will lose their current level of independence and would be required to move to more restrictive setting immediately and permanently, unless they receive the assistance of a specific service or set of services which the ILS Program can provide.

(2) Priority 2 Status

Those eligible adults who, with the assistance of a specific service or set of services which the ILS Program can provide, can immediately move to a less restrictive and more independent setting.

(3) Priority 3 Status

Those eligible adults, who, with the provision of a service or set of services which the ILS Program can provide, will be able to overcome a specific barrier or set of barriers to independent living.

(4) Priority 4 Status

All other eligible individuals.

D. All individuals in each priority shall be served before serving those in the next succeeding priority status.

SECTION 5. INDEPENDENT LIVING PLAN

An Independent Living Plan (ILP) shall be developed after the consumer is found eligible. The ILP is based on a determination of independent living potential designed to achieve the IL goals consistent with an individual's abilities. The case record shall support the development of the consumer directed IL goal(s). The case record shall reflect the significant participation of the eligible consumer, and may include, at the consumer’s discretion, the participation of the consumer’s duly authorized representative in the development of the plan(s). The ILS Program staff shall provide copies of the ILP and any amendments to the consumer, and, where appropriate, their duly authorized representative. In the case of the duly authorized representative, the consumer must participate to the maximum extent feasible in the development of the ILP goals. Goods and services may only be provided in accordance with the ILP. Goods and services provided must remove the barrier to independent living. Goods and services will relate to the Order of Selection priority categories. The details of this process will be thoroughly outlined and included in the ILS Program operating procedures. The ILP is not a legal contract.

1. Elements of the ILP

The Independent Living Plan shall document the following:

A. The basis on which a determination of eligibility was made;

B. The IL goals established with the individual and a rationale for the goals;

C. The specific services to be provided in order to achieve the established IL goals;

D. Beginning and projected ending dates for each service;

E. A procedure and schedule for monitoring progress toward achieving goals based upon objective criteria appropriate for each individual, and a record of the result of ILP monitoring. The ILP shall be reviewed as often as necessary but at least annually;

F. The decisions of the consumer and/or duly authorized representative concerning IL services;

G. The terms and conditions for the provision of services, including the consumer's participation in cost of services when feasible, and, whether the consumer is eligible for similar benefits and the extent to which they will be used, and were used;

H. An assurance that the consumer has been informed of their rights and the means by which they may express and seek remedy for any dissatisfaction, as described in Section 3, ILS Program Appeals Process; and assurance that the consumer has been provided a detailed explanation of the availability of the resources within the Client Assistance Program;

I. The IL Plan must be developed jointly and signed by the appropriate staff member, consumer, and/or duly authorized representative;

J. A copy of the IL Plan, and any amendment shall be provided to the consumer, and/or duly authorized representative, retaining the original for the case record.

2. ILP Amendment

Any major changes to an individual's plan, including closure, require an ILP Amendment. The case record shall have documentation which reflects the reason(s) for an Amendment and will give the consumer, and/or duly authorized representative the opportunity to redevelop and sign the ILP Amendment(s).

SECTION 6. COMPARABLE BENEFITS AND PARTICIPATION BY CONSUMERS IN THE COST OF IL PROGRAM SERVICES

1. If an eligible consumer wishes to financially participate in the cost of IL goods and services consistent with the ILP and/or amendments, it will be documented in the case record.

2. If comparable services and benefits are available, they shall be utilized to meet, all or part of the cost of IL services. The utilization of comparable services and benefits do not apply, if the determination of the availability would delay the provision of services to a consumer who is at extreme medical risk. A determination of extreme medical risk shall be based upon medical evidence, provided by an appropriate licensed medical professional, that presents a risk of substantially increasing functional impairment or risk of death if medical services are not provided expeditiously. If comparable services or benefits exist under any other program, but are not available to the individual at the time needed to satisfy the objectives in the individual’s ILP, the ILS Program shall provide independent living services until those comparable services and benefits become available. The utilization of comparable services and benefits do not apply in the following situations:

A. Counseling and guidance necessary to develop an IL Plan; and

B. Referral and placement to alternative resources.

3. ILS Program case service funds shall not be used to supplant services traditionally provided by other state, federal or private agencies.

SECTION 7. INDEPENDENT LIVING PROGRAM SERVICES

IL Program Services may provide for such goods and services as are necessary to establish eligibility and to determine and achieve IL goals. A maximum lifetime expenditure of $5,000 in planned services shall be allowed for each eligible individual served by the program. Goods and services shall be purchased in accordance with the assurance of the health and safety of the eligible individual. Costs associated with determining eligibility and the planning of services developed in the ILP are not considered part of the $5,000. Any services exceeding this amount needed for the successful attainment of goals documented in the ILP will require the approval of the DVR IL Program Specialist.

The ILS Program services shall purchase IL goods and services only from vendors who meet State Licensure or Certification requirements, where applicable. All modification and other accommodations shall be implemented according to applicable code enforcement laws and the Americans with Disabilities Act (ADA) standards.

The consumer may choose to waive design standards to conform with individual needs. A waiver request, in writing, or in alternative format, signed by the consumer, or duly authorized representative, shall document the reason(s) for the waiver. No waiver may be authorized that would jeopardize health or safety.

1. Costs associated with evaluation and related services necessary to determine eligibility and to develop an appropriate IL Plan shall be excluded from the maximum lifetime expenditure cap. All services and goals identified in an ILP by the ILS Program require adequate, supportive documentation. Documentation for any barrier removal projects shall be by qualified personnel.

2. The following core services shall be within the scope of the program:

A. Information and Referral services;

B. Individual Independent Living Skills Training;

C. Peer Counseling (including cross-disability peer counseling); and

D. Individual and Systems Advocacy.

3. In addition, the ILS Program may provide or contract for the following services:

A. Counseling services, including, psychological, psychotherapeutic, and related services;

B. Temporary housing and supports, incidental to the provision of any Independent Living Program services;

C. Home modifications, including those adaptive devices and structural changes necessary for the individual with a disability to function independently in order to achieve ILS Program goals;

D. Rehabilitation technology including, but not limited to, the purchase of adaptive devices and technology. This would include vehicles and vehicle modifications;

E. Mobility training, as applicable, to people with a wide range of disabilities;

F. Services and training for individuals with cognitive and sensory and psychiatric disabilities, including life skills training and adult basic education, community orientation (including recreation, social and community activities), and training in the use of interpreter and reader services incidental to other IL services;

G. Short-term attendant care services incidental to the provision of other independent living services and not as requisite to the maintenance of the individual's everyday attendant care needs;

H. Surveys, directories, and other activities to identify appropriate housing, recreation opportunities, accessible facilities and transportation, and other support services;

I. Consumer information programs on rehabilitation and IL services available in the Rehabilitation Act of 1973, as Amended, especially for minorities and other individuals with disabilities who have traditionally been unserved or underserved by programs under the Rehabilitation Act of 1973, as Amended;

J. Education and training necessary for living and participating in community activities;

K. Transportation, incidental to the provision of any Independent Living Program services; including referral and assistance for transportation. This does not include the purchase of vehicles or vehicle modifications unless eligible in section 7.3.4;

L. Physical and psychosocial rehabilitation;

M. Therapeutic treatment under the direction of a qualified practitioner;

N. Provision of needed prostheses and other appliances and devices;

O. Individual and group social and recreational services;

P. Any other services that may be necessary and are consistent with the provisions of the Rehabilitation Act of 1973, as Amended.

4. The ILS Program retains the right to reclaim equipment purchased by the agency in instances when:

A. the equipment is no longer being used for the purpose for which it was purchased;

B. the ILP is not completed;

C. the case was closed not successful;

D. the consumer or duly authorized representative was given prior notification that reclaim was part of ILP development.

SECTION 8. CLOSURE

Prior to closure, the ILS Program will monitor and document the consumer’s needs for additional ILS Program services for a six month period following the completion of their ILP services. Regular contact will be made and documented by ILS staff. If no additional services are identified or any other eligible services that the ILS Program may be able to provide, then the ILS Program will move to Closure. Closure is the final amendment to an ILP.

Closure is intended to be a mutual decision between the consumer and/or their duly authorized representative and the ILS Program staff. An individual’s case record may be closed when:

1. the individual is determined ineligible in the following circumstances:

A. The IL staff may close a case without any determination of eligibility when an individual is unavailable during an extended period of time to complete an evaluation and the IL staff has made repeated efforts to contact the individual and to solicit his/her participation. The case record must:

(1) document attempts to contact the consumer in the record; and

(2) include written notification of appeal rights, including the name and address of the person with whom an appeal may be filed and the availability of the Client Assistance Program is required.

B. The consumer requests case closure.

2. the individual is no longer eligible when:

 the program is no longer able to contact the individual, or the individual has moved out of state;

 the program can no longer be expected to assist the individual in functioning independently in the family or community;

C. the individual or their duly authorized representative is unable, or unwilling to complete their responsibilities as documented in their ILP or delineated in program policy;

3. documentation supports that the person has achieved all of their ILP goals:

Documentation of the individual’s participation in the closure process will be included in the case record. It will also be documented that the consumer received notification of their rights to appeal in a format usable by the consumer (including a written format) and/or their duly authorized representative.

SECTION 9. SERVICES AFTER CLOSURE

The ILS Program will establish a procedure that allows an individual who has already received ILS Program services to return within five (5) years of the date of closure. This will allow the person to receive ILS Program services without starting over with the application process and be placed on the waiting list again. This only applies to goods and services needed to accomplish the original ILP goals and objectives. This policy will allow up to 50% of the original cost of the goods and services to be used within the Lifetime Cap. With regard to durable goods, this may be used for maintenance and/or repair excluding abuse.

Referenced materials in these rules include:

CADRES - Court Alternative Dispute Resolution Services

Title VII of the Rehabilitation Act of 1973, as Amended

ADA - Americans with Disabilities Act of 1990

Maine’s Administrative Procedure Act, 5 M.R.S.A., Chapter 375, subchapter IV

EFFECTIVE DATE:

February 10, 1987

AMENDED:

February 12, 1990

March 13, l992 - Sections 4.2, 4.3,8.1 & 8.2 (EMERGENCY)

EFFECTIVE DATE (ELECTRONIC CONVERSION):

May 19, 1996

NON-SUBSTANTIVE CORRECTIONS:

August 20, 1998 - corrected agency names and header, minor spelling and formatting.

REPEALED AND REPLACED:

January 18, 2000

NON-SUBSTANTIVE CORRECTIONS:

April 12, 2000 - minor formatting

AMENDED:

February 6, 2008 – filing 2008-66

12-152 Chapter 7 page iii

12-152 Chapter 7 page 5

Chapter 12 Rules for the Communication Equipment Fund Program for People with Disabilities

Code Me. R. 12-152 Ch. 12 Rules for the Communication Equipment Fund Program for People with Disabilities {#sec-12-152-ch.-12 omnilex-key=us-me-regs-official--dept-labor--12-152 Ch. 12}

SECTION 1: PURPOSE AND GENERAL REQUIREMENTS OF THE PROGRAM

Under Maine Statutes Title 26 M.R.S.A., §1419, the Division for the Deaf, Hard-of-Hearing and Late-Deafened, under the Bureau of Rehabilitation Services, Department of Labor, through the Communication Equipment Program (hereinafter called "The Program"), will provide funds for purchase, lease, upgrading, installation, maintenance and repair of specialized customer telecommunication equipment for persons with disabilities. The Division for the Deaf, Hard-of-Hearing and Late-Deafened, (hereinafter called “the Division”), under the Division of Vocational Rehabilitation Services, will authorize funds in accordance with the following requirements:

Eligibility is determined without regard to age, sex, creed, color or national origin.

In the purchase of goods or services, the Program staff shall comply with applicable regulations of the Maine Department of Labor and Department of Administrative and Financial Services. The Program will purchase goods and services from vendors who meet specific licensure or certification requirements where applicable.

The Program will maintain a record for each applicant for, and recipient of, services and/or goods.

When appropriate, Program staff shall provide necessary referral to support the individuals in securing needed services from other agencies and organizations.

There is no residency requirement, durational or other, which would exclude from services an otherwise eligible individual who is living in the state.

For purposes of this policy, the Director will be the Director of the Bureau of Rehabilitation Services.

SECTION 2: PROGRAM OF SERVICES

There are two programs for services under this Chapter:

1. The Cost Sharing Program through the Division pays for a portion of the total cost, in accordance with a cost share payment schedule as determined by the Division, for each piece of specialized customer telecommunication equipment.

The Lending Program lends specialized customer telecommunication to those whose income level qualifies. The specialized customer telecommunication equipment can be borrowed for as long as needed or as long as the program remains in existence and as long as the applicant complies with the lending agreement containing the following provisions:

A. Agree not to lease, sell, give away, or allow a lien to be placed upon it during the loan;

B. Agree to keep the equipment in good condition and to avoid abuse or damage;

C. Agree to provide adequate insurance to cover loss against fire, theft, or other happenings;

D. Agree to inform the Program staff if the equipment breaks down or is missing;

E. Agree not to remove or permit another person to remove the equipment from this State without written permission from the Bureau of Rehabilitation Services; and

Agree to return equipment to the Bureau of Rehabilitation Services upon its request.

Provision of Equipment per Title 26 M.R.S.A., §1419 sub-§1, B-2 includes:

"Specialized customer communications equipment" means communications equipment used by persons with disabilities to conduct telephone communications. "Specialized customer communications equipment" includes but is not limited to teletypewriters, artificial larynges, signaling devices, amplified handsets, telecoil technology, large number dial overlays, direct telephone dialing, and fax machines.

For Telephone equipment

Orientation and training on use of equipment.

Equipment delivered by commercial carrier or personal delivery by Program Staff

A temporary loaner will be provided in the event of breakdown of equipment while the telecommunication equipment is being repaired.

For telecoil technology/hearing aids

The Program contracted agency will appoint a contact person for the telecoil technology/hearing aids program. This individual will be the contact for the hearing aid manufacturers contracted under the Master Agreement contract with the State of Maine and State of Minnesota. The agency will follow the guidelines as established in the Procedural Directive between the Division and the Program.

SECTION 3: REFERRAL AND APPLICATION FOR SERVICES

Any person who applies for services shall undergo an eligibility determination, the results of which shall be shared with the individual. The Program shall process referrals in an equitable and expeditious manner consistent with available agency resources. An applicant is anyone who signs a dated application or letter.

SECTION 4: ELIGIBILITY DETERMINATION

Identification of Disability Eligibility

Communication Equipment Fund Program for People with Disabilities: Persons who are disabled to the extent that they cannot use the telephone for expressive or receptive communications, as verified by a signed form from any of the following licensed professionals: physician, audiologist, optometrist, physical therapist, occupational therapist, or speech pathologist are eligible for assistance from the fund. A copy of a signed audiogram or a copy of a diploma from a school for the deaf or blind or documentation of qualifying disability from another State program is acceptable in place of a doctor’s signature.

Telecoil technology/hearing aid Program disability eligibility: Persons whose hearing ability in both ears is below 40 decibels pure tone average, as verified by a licensed audiologist or copy of a signed audiogram and are age 65 or older.

Identification of Income Eligibility

Lending Program

1. General Income Guideline for Communication Equipment Fund Program for People with Disabilities. The initial application for services will contain a section for a declaration of reported family gross annual income. An applicant whose family gross annual income is below 220% of U.S. Department of Agriculture National Poverty Guidelines adjusted for family size will be eligible for the Lending Program for equipment.
2. Persons seeking telecoil technology/hearing aids through the Communication Equipment Fund Program. An applicant whose family gross annual income is below 135% of the U.S. Department of Agriculture National Poverty Guidelines adjusted for family size will have first priority for telecoil technology/hearing aids available at that time through the Communication Equipment Fund Program.

For purposes of this Chapter, Family Gross Annual Income is defined as the sum of all income of family members in the household (not including dependent children), before taxes, received during the 12 month period prior to the date of application. Income shall include:

1. Wages, salaries, commissions or fees before deductions;
2. Net earnings from self-employment, partnership or business;
3. Net rental income;
4. Dividends;
5. Interest;
6. Contributions from persons outside the household;
7. Pensions or annuities;
8. Government benefits: public assistance, welfare payments, social security, SSI, unemployment;
9. Workers’ compensation;
10. Alimony;
11. Child support; and
12. Other cash income withdrawn from savings or investments and other resources available to the family.

D. The following items are not included in determining gross annual income:-proceeds from sale of property, house or car, tax refunds, scholarships or training stipends.

E. Consideration may be given in special circumstances, including but not limited to, exorbitant medical costs.

3. Certification of Eligibility or Ineligibility

A. Notification of Eligibility. A letter will be mailed to each individual determined eligible for services. The letter will state their eligibility and be signed and dated by Program staff.

B. Notification of Ineligibility. For all applications in which the Program staff determines that an applicant for or recipient of services does not meet the requirements for eligibility as listed in this Chapter, a letter stating the reasons for ineligibility shall be mailed to each applicant found ineligible, dated and signed by Program Staff, along with a statement of Rights of Appeal.

4. Order of Selection

A. General Order of Selection. At any time services cannot be provided to all eligible individuals, the Order of Selection procedures must be implemented. Under these circumstances individuals shall be served in the following priority order. Those eligible individuals who are:

aged 62 or older living alone;

living alone;

adults, with one family member under age 12;

adults, with one adult family member;

teenagers or children.

B. Telecoil Technology/Hearing Aids Order of Selection.

Aged 75 or older living alone;

Aged 70-75 and living alone;

Aged 75 or older;

Aged 65-75.

C. For purposes of this regulation, “living alone” means living without any roommate, spouse, child, or other assistance in a housing unit, whether that housing unit is a private home, apartment, assisted living facility, group housing or nursing home.

SECTION 5: CONFIDENTIALITY

All client/applicant information acquired by the Program staff is confidential and remains the property of the Program and shall only be used and released for purposes directly connected with the administration of the program. Information may, however, be disclosed in summary, statistical, and other forms which do not identify the individuals.

SECTION 6: PROGRAM APPEALS PROCESS

An applicant for program services, or a recipient of program services, who is dissatisfied with a determination concerning the furnishing or denial of services under this Chapter, may request a review of the determination by submitting a written appeal to the Director of the Division for the Deaf, Hard-of-Hearing and Late-Deafened within thirty days of the issuance of the determination. Upon such appeal, a hearing will be conducted, and a final agency decision will be issued pursuant to Subchapter IV governing Adjudicatory Proceedings under the Maine Administrative Procedure Act . Parties shall have the right to appeal the agency’s final decision to court pursuant to Subchapter VII governing Judicial Review of Final Agency Action under the Maine Administrative Procedure Act .

History

• STATUTORY AUTHORITY: 26 M.R.S. §1419-A
• EFFECTIVE DATE: January 27, 1988 – filing 88-23. Title: “Telecommunication Devices for the Deaf (TDD)”.
• EFFECTIVE DATE (ELECTRONIC CONVERSION): May 19, 1996
• NON-SUBSTANTIVE CHANGES: August 20, 1997 - corrections of agency names, minor spelling and formatting, header corrected. Title changed to “Telecommunication Devices for the Deaf (TDD) Program Rules”.
• AMENDED: July 5, 2004 - filing 2004-247. Also: title changed to “Telecommunication Devices for People with Disabilities Program Rules”.
• REPEALED AND REPLACED: January 11, 2006 – filing 2006-5. Also: title changed to “Communications Devices for People with Disabilities Program Rules”
• AMENDED: January 14, 2012 – filing 2012-5. Also: title changed to “Rules for the Communication Equipment Fund Program for People with Disabilities”.
• AMENDED: June 28, 2021 – filing 2021-135

Chapter 20 Rules for Facilities Providing Adult Day Programs

Code Me. R. 12-152 Ch. 20 Standards for Facilities Providing Adult Day Programs {#sec-12-152-ch.-20 omnilex-key=us-me-regs-official--dept-labor--12-152 Ch. 20}

A joint rule also filed under the Department of Mental Health, Mental Retardation, and Substance Abuse Services, Bureau of Mental Health, as 14-191, Chapter 8.

Standards For Facilities Providing Adult Day Programs

1. Authorized Status

2. Deemed Status

3. Plan For Improvement

4. Quality Assurance

5. Administrative Review Procedure

Promulgated under BMR Rule-Making Authority: 34-B. MRSA Section 5432.

Promulgated under BMH Rule-Making Authority: 34-B. MRSA, Section 1208 (3)(A).

Promulgated under BRS Rule-Making Authority: 22 MRSA, Sections 42, 3067, and Rehabilitation Act Regulations 34 CFR Part 361.45, 361.71-5.

1. Authorized Status

A. Any community based agency, hereinafter "agency", providing rehabilitation and/or habilitation day program services for adults must be authorized in order to continue receiving funds from the Bureau of Mental Retardation (BMR), The Bureau of Mental Health (BMH), or the Bureau of Rehabilitation Services (BR), hereinafter "Bureau(s)".

B. Funding means:

1. The Bureau of Mental Retardation's award of a community based mental retardation services contract; and/or

2. The Bureau of Rehabilitation Services's authorization for the Agency to receive funds for the purchase of vocational rehabilitation services for eligible individuals. Authorization is not a commitment by BR to sponsor clients at the authorized agency; and/or

3. The Bureau of Mental Health's award of a community based mental health services contract.

C. Authorization requires the agency to participate in an on-site review conducted by:

1. A nationally recognized accrediting organization when the funding Bureaus deem such standards appropriate to review the specific programs offered by the agency, or

2. Funding Bureau(s), via an in-state process, when:

a. there are no relevant national standards deemed appropriate by the funding Bureau(s) to review specific programs, or

b. the funding Bureau(s) determines that an accreditation survey would not be cost-effective, based on the size of the program offered.

D. An agency accredited by an organization that has been awarded deemed status as described in section 2.A. shall be authorized to receive funding.

E. Agencies that are required to be reviewed under section 1.C.1. must be formally accredited by January, 1990 in order to be authorized for funding.

F. An agency shall retain its authorized status until the expiration date of its accreditation period, or until the next scheduled in-state review, provided the agency is in compliance with section 4.

G. Newly developed facilities or programs may be given a one year provisional authorization to provide services and shall be reviewed by an in-state survey team. At the end of the provisional period, the agency must formally initiate the appropriate process to comply with section 1.C.

2. Deemed Status

A. Bureaus providing funds may award "deemed status" to standards promoted by nationally recognized organizations that offer accreditation to facilities.

B. In determining the acceptability of nationally recognized standards to be awarded deemed status, the Bureaus shall take into account:

1. The appropriateness of the standards content and their compatibility with specific programming that is provided and funded in Maine, and

2. Standards and a review process that require survey teams to pay substantial attention to actual direct client programming as an element of the on-site process, and

3. The accrediting body's achievement of a survey balance between the administration/organization and programming aspects of the agency, and

4. The ability of the accrediting body to document the final results of the survey and return that report to the agency in a timely manner.

C. When there is more then one such accrediting body deemed appropriate to review the agency's programs, the agency shall have the option to select an accrediting organization of its choice.

D. Funding Bureaus may require agencies to meet standards that have a basis in Maine law, and/or existing regulation, in the event that these requirements are not addressed by the national accrediting organization.

E. Where necessary, funding Bureaus may establish additional standards by regulation.

3. Plan For Improvement

A. Within 30 days of receipt, the agency shall provide the funding Bureau(s) with a copy of the accrediting body's written survey report, including:

1. The organization's conclusions regarding the award or denial of accredited status, and

2. Any terms or requirements that the agency must meet as a condition for achieving or maintaining accredited status.

B. Within 60 days of the receipt of the report from the accrediting body, or an in-state survey team, representatives from the community agency shall submit a Plan For Improvement (PFI) as required in section 4.C.

C. The PFI shall be based upon the needs and recommendations as outlined in the accreditation survey or the in-state review team’s final report.

D. When an accrediting body has awarded accreditation and requires a detailed plan to address identified needs/recommendations that are conditions for attaining accredited status, then this plan shall be considered the Plan for Improvement.

E. The PFI shall contain the following information:

1. Name of the Organization

2. Address

3. Telephone

4. Author(s) of the Plan

5. Name of Accrediting Body or the state sponsored review team

6. Date of Final Report

7. Needs as prioritized by the Agency

8. Goals - defining anticipated performance

9. Objectives - statement of what is to be accomplished, criteria for success, completion date, and person(s) named responsible

10. Time frames for monitoring, as negotiated with state funding sources

11. Quality Assurance

A. Accreditation surveys and state sponsored agency reviews shall be used as a tool for assuring improvements in service quality throughout the period that the agency is authorized to receive funding.

B. The Plan for Improvement shall be a major focus of the quality assurance effort undertaken by the agency, and monitored by funding Bureau(s).

C. The PFI shall be sent to representatives of the funding Bureau(s) for the purposes of monitoring, quality assurance, and resource development.

D. Progress and the agency's efforts to take positive, corrective action shall be monitored by funding Bureau representatives.

E. An agency shall retain its authorized status provided that it continues to demonstrate substantial effort and progress toward meeting the objectives that are specified in the Plan for Improvement.

F. The funding Bureaus shall encourage - at the most immediate administrative level within each Bureau's quality assurance system - an informal process to identify, discuss and resolve issues of mutual concern to the Bureau and an agency.

5. Administrative Review Procedure

The Administrative Review Procedure is available to an Agency's Executive Director or President of the Board of Directors whenever a decision(s) has been made by personnel within the funding Bureau(s) during monitoring and the agency is aggrieved by a decision(s).

A. Procedure

1. In order to initiate this process an agency must request an administrative review in writing, stating the decision it is aggrieved by and its objections thereto.

This request shall be made to the Director, Bureau of Rehabilitation Services, and/or the Director, Bureau of Mental Retardation, and/or the Director, Bureau of Mental Health. Copies of the request shall be sent to the Bureau(s) regional representatives.

2. Within 20 days of the receipt of the request for administrative review, the Bureau Director(s) or designee(s) shall assign an administrative review panel to meet with the agency.

The administrative review panel shall reflect representation from the funding Bureau(s), and a representative from a community agency. Panel members shall not be from the same region in which the requesting agency's facility is located, nor shall the panel members have participated in any way in the decision(s) being challenged. The requesting agency shall designate the community agency representative accordingly.

3. The administrative review panel will make a record of the hearing with the requesting agency by recording the hearing in a form susceptible to transcription. The panel will also include in the record all material, including records and documents in the possession of the funding Bureau(s) upon which the challenged decision(s) was based, and all relevant documents offered by the requesting agency at the hearing.

The review will be conducted in an impartial manner. Every party will have the right to present evidence and arguments on all issues, and at the hearing to call and examine witnesses and to make oral cross-examination of any person testifying.

4. The administrative review panel shall submit a written report to the Bureau Director(s) within five (5) working days of the date of their hearing, including recommended findings of fact and a recommended decision based on such findings. A copy of the report will be sent to the requesting agency, which may submit a response or exceptions to the report to the Bureau Director(s) within five (5) working days of receipt of the panel's report.

5. The Bureau Director(s) shall render a final decision within ten (10) working days of receipt of the administrative review panel's recommendations. The Bureau Director(s) decision shall be sent to the requesting agency, Bureau personnel as indicated by the Director(s), and the administrative review panel.

6. Further review of the Bureau Directors' decision may be sought from the Commissioner(s) by requesting in writing such a review within 10 days of the receipt of the Bureau Directors' decision.

7. The Commissioner(s) shall issue a written decision within 20 working days from receipt of a written request. Such decision shall constitute final agency action. Further judicial review may be sought through procedures as set forth in the Maine Administrative Procedures Act.

EFFECTIVE DATE:

November 15, 1987

EFFECTIVE DATE (ELECTRONIC CONVERSION):

May 19, 1996

NON-SUBSTANTIVE CORRECTIONS:

August 20, 1997 - corrected agency names, minor spelling and formatting

12-152 Chapter 20 page 2

12-168 Department of Labor - General

Chapter 3 Governor's Training Initiative Program (Joint rule with 19-100, Department of Economic and Community Development)

Code Me. R. 12-168 Ch. 3 Governor's Training Initiative {#sec-12-168-ch.-3 omnilex-key=us-me-regs-official--dept-labor--12-168 Ch. 3}

August 22, 1996

Governor's Training Initiative

Statement of Intent

Index

Page

Summary 1

Section 1: Definitions 1-3

Section 2: Selection Criteria 4

Section 3: Selection Preference 4-5

Section 4: Selection Process 5-6

Section 5: Non-Displacement 6

Section 6: Supportive Services 7

Section 7: Participant Appeal Procedure 7-8

Governor's Training Initiative

Statement of Intent

12-168 Department of Labor

Chapter 3 - Governor's Training Initiative Program

Summary: This Statement of Intent describes the design and method of implementation of the Governor's Training Initiative (GTI) Program. The GTI Program is administered pursuant to Chapter 26 MRSA, Section 2031. The Statement of Intent was prepared jointly by the Department of Economic and Community Development and the Department of Labor.

Section 1: Definitions

For purposes of the Governor's Training Initiative, the following definitions apply:

1. Applicant: An applicant is an employer, a group of employers, or an employer in partnership with any one or more of the eligible entities cited in Subsection 8 of 26 MRSA, Section 2031.

2. Employer: An employer is a private sector entity that produces goods or services and is creating, upgrading or retaining jobs that require work force training.

3. Partnership: A partnership must include an employer and may only be in combination with any one or more of the eligible entities cited in Subsection 8 of 26 MRSA Section 2031. Such entities include, but are not limited to, employers, regional and local economic development agencies or partnerships, community-based organizations, job training service providers, registered apprenticeship service providers, local adult education providers and post-secondary institutions.

4. Participant: A participant is an individual residing in Maine and in receipt of GTI services defined in Section 1, Subsection 6 A-H for the purpose of Maine employment.

A) Training participant: A training participant is an individual residing in Maine and in receipt of GTI services defined in Section 1, Subsection 6 C-H for the purpose of Maine employment.

5. Training: Training refers to those activities which develop/enhance an individual's knowledge, skills and abilities in occupationally-specific areas, and may include workplace literacy, safety, high performance skills, technical, on-the-job, or computer assisted instruction, higher education and other non-traditional learning initiatives.

6. Services Available: Services available under this section must result in the training of at least one employee other than, or in addition to, the employer. For purposes of Subsection 6 of 26 MRSA,Section 2031, the following job creation, job upgrading and job retention services are available as defined:

A) Recruitment: Customized targeting of individuals residing in Maine for jobs related to business expansion or new firm location in Maine, performed by public/private non-profit providers.

B) Screening and Assessment: Determination of the preparedness or appropriateness of individuals for job creation or job retention projects as defined below.

1. Evaluation of interests, occupational aptitudes and literacy of job or training applicants.

2. Evaluation of literacy skills of current workers to determine occupationally-linked instruction needs.

3. Identification of preparation needed by current workers for advanced occupational training and/or changes and upgrades in the work routine.

C) Workplace Literacy: Provision of basic skills such as reading, writing, mathematics and computer literacy targeted to job requirements and/or advanced occupational training.

D) Workplace Safety: Provision of occupation-specific health, safety and ergonomics training for new or current workers and linked to job creation and/or job retention strategies.

E) Technical Training: Provision of occupational skills training for new or current workers to maximize performance, productivity, use of technology and global competitiveness.

F) On-the-Job Training: Provision of supervised instruction in the performance of necessary job functions with negotiated reimbursement for training.

G) Higher Education: Provision of occupation specific education for new or current workers through an institute of higher education.

H) Essential Work Competencies: Provision of training to support creation/retention of a high performance workplace, including but not limited to: critical and analytical thinking skills, problem-solving strategies, self-management, team participation, leadership and customer service.

I) Job Task Analysis: Provision of occupational or organizational needs assessment to determine the technical, academic and essential work competencies required for successful job performance.

J) Coordination of employer consortia to access specialized training: The development of consortia to meet industry-specific and employer-specific needs for specialized training through economies of scale.

K) Technical Assistance on workforce capacity issues: Development and coordination of customized workforce development packages and proposals by the Department of Labor and/or Department of Economic and Community Development for firms intending to expand or locate in Maine, upgrade worker skills or reorganize the workplace to remain globally competitive.

L) Technical Assistance on worker training plans.

M) Small business training and technical assistance: Technical assistance on workforce development issues and other essential aspects of managing a business for firms employing fewer than 25 individuals.

Section 2: Selection Criteria

The following criteria must be demonstrated to the interdepartmental review team at the time of application:

1. Training for new hires shall not be approved for any occupation in a labor market where there is already a sufficient supply of workers trained and available to meet an employer's needs and skill levels for workers in that occupation as determined by the Department of Labor's Division of Labor Market Information Services. The applicant shall agree to provide to the Department of Labor the employer's existing and proposed occupational staffing descriptions, employment levels, and other related information to enable the evaluation of labor supply for the labor market.

2. An employer shall provide a statement of commitment to long-term operation in this State.

3. An employer seeking training funds under this program shall pay trainees a wage that is at least equal to 85% of the average wage for that occupation in that labor market. Wage levels will be determined by the Department of Labor's Division of Labor Market Information Services.

4. An employer shall contribute at least 50% of the premium cost of employee health insurance except for small businesses with fewer than 25 employees and in operation less than three years at the time of application.

Section 3: Selection Preference.

In addition to meeting the criteria set forth in Section 2 above, preference must be given to an applicant that substantiates one or more of the following at the time of application:

1. Formation of a local project partnership;

2. Employer willingness to leverage matching funds;

3. Investment in the lifelong learning and skills development of citizens of this state;

4. An increase in the local education and training capacity to support more than one employer that is caused by a proposed project;

5. Provision of high wage or high skill employment, employee benefits and job security;

6. Employer intention to expand or locate in economically depressed areas of this State;

7. Employer willingness to hire new labor force entrants, economically disadvantaged individuals, persons with disabilities or dislocated workers; or

8. Employer willingness to provide a registered apprenticeship for current employees or new hires.

Section 4: Selection Process

1. An application will be reviewed to determine if it meets the following requirements:

A) Applicant as cited in subsection 8 of 26 MRSA, Section 2031; and

B) Selection criteria, as cited in subsection 4 of 26 MRSA, Section 2031 and further defined in Section 2 of this rule.

An application failing to meet either requirement will not be considered.

2. An application meeting the requirements will be evaluated according to a selection process that will consist of a preliminary assessment, selection preferences and program standards.

3. Employers selected for the program will enter into a contractual agreement with the State of Maine that at a minimum includes, but is not limited to: moneys committed to the project; services to be performed; specific role of service provider(s) and employer; and performance expectations. Failure to meet the terms and conditions articulated may result in termination of the contract and subsequent deobligation of project funds.

4. Notification. Selection will be based on a selection process consisting of a preliminary assessment, selection preferences and program standards as cited in Section 4, Subsection 2.

A) Approvals

An applicant approved for funding will be notified in writing by the interdepartmental review team within five working days of the decision. The approval letter will include the contract which must be signed and returned to the Department of Labor within 45 calendar days. A letter from the employer indicating intent to go forward with the project must be received by the Department of Labor within 30 calendar days. A contract not signed and returned within 45 calendar days may be denied, and the applicant will be required to re-apply to be re-considered.

B) Denials

A notification explaining denial based upon the selection process will be issued in writing to the applicant by the interdepartmental review team within five working days of the decision.

Section 5: Non-Displacement

No new hires under this program shall result in the displacement from the firm of any currently employed worker or position (including partial displacement such as reduction in hours of nonovertime work, wages, or employment benefits), or result in the impairment of existing contracts for services or collective bargaining agreements. In addition, no new employment or assignment of a participant or the filling of a position shall take place when:

1. Any other individual is on layoff from the same or any equivalent position, or

2. The employer has laid off any regular employee or otherwise reduced its workforce with the effect of filling the vacancy so created with a participant subsidized under the program.

Section 6: Supportive Services

Supportive services shall be provided when necessary to participate in training provided that the training participant would be eligible for such service under another public training program if funds were available to provide those services to the training participant. All participants shall be given written notice of the availability of these services, shall have the opportunity to make written application for them upon request, and shall receive a written notice as to the disposition of that application. Upon application, a participant will be provided with a form to be used for documenting his/her program eligibility through another public program and the unavailability of these services due to fiscal constraints under such program. Available services include:

1. Training materials or books necessary for participation in the training;

2. Payment for dependent care costs, provided these costs do not exceed the prevailing rate for such care; and

3. Travel payments according to the policies consistent with Job Training System service providers.

Funds for supportive services necessary to participate in training are limited to the duration of the training period, except that costs for services in (2) & (3) above are limited to 90 days for trainees who are receiving wages through the employer or GTI subsidized wages.

Section 7: Participant Appeal Procedure

1. All determinations under this section shall be made promptly and in writing. A participant who is aggrieved by any decision or action made under this section may appeal as provided in this subsection.

2. Each person who requests or receives training or supportive services under this section shall be given written notice describing the right and procedure of appeal provided by this section. This notice shall:

A) Be uniform throughout the State;

B) Be written in language that is clear and understandable and must have a readability score, as determined by a recognized instrument for measuring adult literacy levels, equivalent to no higher than a 6th grade level; and

C) Include a statement that:

1. Any decision regarding the type of training or the type, amount or duration of supportive services offered may be appealed;

2. Hearings provided under paragraph C will be conducted by an impartial hearing officer whose decision may be appealed to the court; and

3. The person may be eligible to receive free legal assistance in pursuing an appeal. This statement must also provide a list of organizations that provide legal assistance to persons of low income.

3. Any person who requests or receives training or supportive services under this section may obtain a review of any decision made by the agency related to those services. When an individual requests a review, the agency shall promptly investigate and attempt to resolve the complaint informally. If the problem is not resolved to the complainant's satisfaction through this informal process, a hearing to review the agency's decision shall be scheduled before an impartial hearing officer at the Department of Labor's Division of Administrative Hearings as provided in paragraph C.

4. A hearing provided under this subsection must be held pursuant to the Maine Administrative Procedure Act.

History

• STATUTORY AUTHORITY: 5 MRSA §13058 sub-§3
• EFFECTIVE DATE: October 7, 1996
• NON-SUBSTANTIVE CHANGE: August 28 1997 -
• NON-SUBSTANTIVE CHANGE: converted to Microsoft Word for Windows 2.0 format.
• NON-SUBSTANTIVE CHANGE: APAO WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK: July 17, 2025

Chapter 11 Rules of the Enterprise Option Program

Code Me. R. 12-168 Ch. 11 Rules for Maine Enterprise Option Program {#sec-12-168-ch.-11 omnilex-key=us-me-regs-official--dept-labor--12-168 Ch. 11}

Summary: This Chapter outlines the procedures and rules to implement and guide the administration of the self-employment assistance program which is to be known as the Maine Enterprise Option (MEO).

1. Definitions

A. "Commissioner" shall mean the Commissioner of the Department of Labor or designee.

B . "Establishing a business" shall mean organizing the production, marketing and sale of products or services. This includes enterprises operated with the intention of creating a profit or of generating income for the owners if organized as a legal not-for profit venture.

C. "Full-time" shall mean forty hours per week.

D. "Worker profiling system" shall mean a system established by the Maine Department of Labor that attempts to predict the likelihood that an individual will exhaust his or her unemployment benefits. The characteristics of individuals who exhausted benefits in the past are analyzed to determine which of these characteristics were predictors of exhaustion for the group. These predictors are then combined into a "profile" and individuals who match the profile are deemed to be "likely to exhaust benefits." Individuals who are on recall status or who obtain employment through a union hiring hall agreement are deemed to not be likely to exhaust benefits. Other data elements to be studied (along with potentially others in the future) are: previous industry, total unemployment rate, declining industry code, separation reason, the individual's weekly benefit amount and maximum benefit amount, and job tenure.

E. "Allowable business activity" shall mean:

a) the proposed business shall have its principal place of business in Maine;

b) the proposed business, when established, shall meet all legal requirements involving licenses, taxes, zoning etc.;

c) the proposed business may be a sole proprietorship, partnership, corporation, franchise or pre-existing business provided that the applicant has both financial investment and decision-making authority in the business;

d) the proposed business shall be suitable for support by a public agency.

Examples of unsuitable businesses shall include but are not limited to: businesses that involve the speculative purchase and/ or sale of real estate, (though real estate development involving construction or renovation are permitted), gambling activities or pyramid selling (also known as multi-level marketing).

F. "Qualified business counselor" shall mean counselors approved by the commissioner to provide one-one assistance under the MEO self-employment assistance program.

G. "Local Enterprise Coordinator" shall mean the designated staff at each Department of Labor office responsible for coordinating Orientation and applications for MEO applicants.

H. "Self-employment Assistance Allowance" (SEA) shall mean an allowance payable in lieu of regular benefits, from the Unemployment Compensation Fund, to an individual who meets the requirements of and has been accepted into MEO.

I. "Approved Training" shall mean seminars, workshops and training approved by the commissioner for purposes of providing assistance to MEO participants.

2. Eligibility requirements for acceptance into MEO

A. Eligibility requirements. To be eligible for acceptance into the MEO, an applicant must meet the following criteria:

(1) be a resident of the state of Maine;

(2) have been identified as likely to exhaust regular benefits through a worker profiling system;

(3) have a balance of regular benefits equal to at least 18 times the applicant's weekly benefits amount at the time of application;

(4) have attended an "Orientation to the MEO" program;

(5) have completed and submitted to the Local Department of Labor Office a written application form containing information the commissioner may prescribe, including, but not limited to, the following:

(a) The type of business contemplated.

(b) Business location.

(c) Target market for product or service and plan for reaching the market

(d) Anticipated start-up expenses.

(e) Proposed sources of initial financing.

(f) Personal interest, experience or training in operating the type of business proposed;

(6) be willing and able to work full-time at self-employment assistance activities; and

(7) be proposing to enter a type of business which is an allowable business activity as defined in section 1(E).

B. Application review. Written applications will be reviewed by the Review Board to insure that the applicant meets all of the above eligibility requirements.

(1) During the interval between filing an application and notification of acceptance or non-acceptance, applicants shall continue to file for and meet the eligibility requirements for regular benefits.

C. Enrollment limitation. Enrollment into The MEO shall be carefully monitored by the Department of Labor on a monthly basis. Monthly notification shall be provided to the Review Board of the percentage of claimants receiving regular benefits who are enrolled in The MEO.

(1) When the Review Board determines that acceptance of additional participants is likely to cause enrollment to exceed 5% of the claimants receiving regular benefits, acceptance of applicants into The MEO shall be deferred. Applicants who do not meet the requirements for eligibility for The MEO, other than the 5% limitation, shall continue to receive notification of nonacceptance. Applicants who do meet the eligibility requirements shall be given written notification that acceptance into The MEO has been deferred until such acceptances would no longer be likely to cause the percentage to exceed 5%.

(2) Applicants who are deferred shall be placed on a waiting list in the order in which they applied, with the applicants who applied first and who are still on the waiting list being given the first openings for acceptance into The MEO. Applicants who are deferred shall remain on a waiting list until one of the following occurs: 1) they have been on the waiting list for five weeks following the week in which they submitted their application, or, 2) their remaining balance of regular benefits is less than 14 times the applicant's weekly benefits amount, or, 3) less than 14 weeks remain in their benefit year. Applicants shall be given written notification that their status has changed from deferral to not accepted.

D. Notice of eligibility to participate in MEO. Applicants must receive written notification of acceptance from the MEO Review Board prior to submitting a claim for a self-employment assistance allowance. Notice must be made within a reasonable time frame. Participation takes effect with the week following notification. Participants shall begin filing an SEA weekly claim form as of the week following notification of acceptance into MEO.

3. Standards for approval of self-employment assistance activities.

The following standards shall be used in determining which self-employment assistance programs will be approved:

A. The emphasis of training shall be of a practical, non-academic, nature.

B. A participant's training needs will be determined after an assessment of his or her application for the MEO. The program which is developed for the participant will provide training which will give the participant a reasonable opportunity of succeeding in self-employment.

4. Claims for self-employment assistance allowances

A. Requirements while filing weekly claims

To continue receiving a self-employment assistance allowance, MEO participants shall:

(1) File a weekly SEA claim form providing information on self-employment activities that include, but are not limited to:

(a) Participation in approved training.

(b) Technical assistance or counseling.

(c) Attendance at workshops and seminars.

(d) Market research.

(e) Product development.

(f) Inventory or equipment acquisition.

(g) Sales activity.

(h) Development of promotional and marketing materials.

(2) Be actively engaged on a full-time basis in self-employment assistance activities.

B. Failure to meet participation requirements. Having an unexcused absence from a training session, or failure to meet other requirements under Subsection 4, without good cause, shall result in the loss of benefits only for the week in which such absence or failure occurred.

(1) For purposes of this Rule, "good cause" shall have the same definition as is used in Maine Unemployment Insurance Commission Rules Governing the Administration of the Employment Security Law, Chapter 1(l)(T).

5. Program participation requirements.

To be eligible for continued participation in the MEO, participants shall meet the following requirements:

A. Attend an MEO approved "Introduction to Business" Seminar, as scheduled, after acceptance into the MEO. The introductory seminar is a three to five hour session that provides technical assistance and information on developing a business plan and information and referral to additional business assistance resources. As a minimum, this seminar shall cover the following topics: Developing a Business Mind Set - personal qualities required for business, personal financial requirements, setting long and short term goals for business; Forms of Business Organization - sole proprietorship, partnership, corporation; Overview and Review of the Business Plan - ­contents and purpose; Resources and Information on getting started -- next steps.

(1) If a participant does not attend an "Introduction to Business" Seminar as scheduled, he or she will be subject to possible denial of a self-employment assistance allowance for the week in which the Seminar was scheduled. If a participant fails to attend a second Seminar as scheduled, he or she will be subject to possible termination from the MEO; and

B. Meet at least two times with a qualified business counselor during the course of participation in MEO. Participants must meet initially within six weeks of acceptance into the program. This initial meeting is intended to assist MEO participants in setting out a "plan of action" for their self-employment assistance activities, and to guide the participant in developing a written business plan that includes at a minimum: Statement of purpose or mission; Business description; Marketing plan; One year cash flow projections; Operations plan.

(1) If the participant is unable to meet with a qualified business counselor within six weeks of acceptance, after having made a good faith effort to do so, and such failure to meet was due to factors beyond the participant's control, such failure shall not subject the participant to possible termination from the MEO; and

C. Participate in approved training as described in section 1(I). Attendance at training must be verified in writing by the instructor, the responsible training coordinator/attendant if training is delivered via ITV (Interactive television), or by the Local Enterprise Coordinator if training is received through self-directed video or other electronic delivery system; and

(1) If a participant does not attend a Business Training class as scheduled, he or she will be subject to possible denial of self-employment assistance allowance for the week in which the class was scheduled. If a participant fails to attend a second class as scheduled, he or she will be subject to possible termination from the MEO; and

NOTE: Business training for MEO participants should contain the following objectives and topic areas:

Marketing - how to develop a marketing plan, completion of first draft of a marketing plan

Personal Effectiveness and Selling - understanding the importance of effective selling and the key factors involved in selling; improving personal effectiveness, sustaining motivation and a positive outlook

Cash Flow Projections and Financial Statements - learning how to determine start-up capital needs, break even point, understanding financial terminology and evaluating financial return and feasibility

Financing - Examining sources of financing, understanding lending requirements and the relationship of business planning to financing

Record Keeping and Taxes - Understanding fundamentals of record keeping, establishing initial accounting system, understanding the types of taxes that pertain to small business

Legal and Insurance Issues - Understanding legal requirements for establishing a business, criteria for selecting legal forms of business ownership, understanding areas of liability and risk, developing an awareness of insurance requirements, understanding contracts

D. Participate in a periodic eligibility review process as scheduled by the Review Board. The purpose of the review is to assess progress towards business start-up and compliance with self-employment assistance activities and other MEO requirements; and

E. Demonstrate progress towards business start-up. Benchmarks indicative of progress include but are not limited to: established business bank account, developed record-keeping system, acquired necessary equipment, supplies or inventory, developed promotional materials, developed a written business plan, including financial projections, cash flow, break even analysis, profit and loss and balance sheet statements, established pricing structure, provided for insurance and other liability issues.

6. Termination from MEO program

A. Voluntary termination. MEO participation is voluntary and may be terminated at the request of the individual claimant at any time. To withdraw from the program, an individual shall indicate his or her desire to withdraw on the weekly self-employment assistance allowance claim form. Voluntary termination shall be effective with the Sunday of the week following the claim week on which voluntary termination is elected.

B. Termination by Review Board. An MEO participant may be removed from the MEO program if found to be in non-compliance with the program participation requirements contained in this Rule and in 26 M.R.S.A. Section 1197. Notification of termination shall be made in writing and shall be effective as of the week following the week in which such notification is mailed to the participant.

(1) The following may result in termination from the MEO program:

(a) Failure to attend two scheduled "Introduction to Business" or "Business Planning" Seminars.

(b) Having two or more unexcused absences from training sessions.

(c) Failure to attend two or more scheduled meetings with a business counselor.

(d) Failure to meet program participation requirements contained in Section 5.

(e) Failure to pursue self-employment assistance activities as defined in 26 M.R.S.A. Section 1197.

C. Continued eligibility for regular unemployment benefits. The eligibility for benefits of an individual who either withdraws voluntarily from the MEO program or who is terminated by the Review Board will be determined in accordance with the provisions of 26 M.R.S.A. Chapter 13 (other than Section 1197) effective with the week following either voluntary termination or the mailing of notification of termination.

7. Program operations

A. Review Board. The commissioner shall appoint a Review Board consisting of two members. The Review Board shall include a representative of the Department of Labor and a representative of a community based organization with knowledge and experience in small and micro‑enterprise development, or a representative of a private financial institution.

Review Board members shall serve without remuneration for three year terms renewable at the request of the commissioner. Duties of the Review Board include:

(1) to review individual applications for conformance with individual eligibility criteria contained in section 2(A) and criteria established for allowable business activity as defined in section 1 (E).

(2) to forward written notice of acceptance or non-acceptance into MEO to the applicant and to the Department of Labor.

(3) to conduct periodic reviews of MEO participants' progress towards establishing a business or becoming self-employed and compliance with program requirements for continued eligibility. Reviews shall be based in part on information supplied on the weekly claim form, but may include other information provided by the participant, such as elements of a business plan.

(4) to determine non-compliance on the part of MEO participants and to inform them in writing of the reasons for non-compliance and the effective date of their removal from the MEO program in accordance with section 6.

B. Self-Employment Assistance Program Services: The commissioner of the Department of Labor may contract for services that include all or part of the following components: coordination and management, outreach and orientation to MEO; Introduction to Business Planning Workshops; Business Training; individual business counseling; other workshops and seminars.

C. Local Enterprise Coordinators: Each local Department of Labor office shall have a staff representative designated and trained as the Local Enterprise Coordinator (LEC). The LEC at each office shall be responsible for presenting the MEO Orientation, and making the application and other information available to UI claimants who may meet the profiling requirements of the program. LEC's shall also serve as the local contact for program participants.

8. Appeal procedure

An individual who is not accepted into the MEO program can file an appeal. Such appeals shall be processed under the appeal procedures specified in 26 M.R.S.A. section 1197, sub-section 8-B. The commissioner may contract with the Division of Administrative Hearings or another qualified organization to hear appeals related to nonacceptance into the MEO.

9. Other appeals

Any other appeals under this Rule other than an appeal as described in Section 8 shall be processed under 26 M.R.S.A. Section 1194(2).

History

• STATUTORY AUTHORITY: 26 M.R.S.A. Section 1197
• EFFECTIVE DATE: March 28, 1995
• EFFECTIVE DATE (ELECTRONIC CONVERSION): December 25, 1996
• NON-SUBSTANTIVE CHANGES: August 28, 1997 - converted to Microsoft Word for Windows 2.0 format.
• NON-SUBSTANTIVE CHANGES: December 11, 1997 - 5(A)(2) and 7(A)(1).
• AMENDED: January 1, 2000
• AMENDED: APAO WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK: July 17, 2025

Chapter 50 Nondiscrimination Policy and Grievance Procedure

Code Me. R. 12-168 Ch. 50 Non-Discrimination Policy and Grievance Procedure {#sec-12-168-ch.-50 omnilex-key=us-me-regs-official--dept-labor--12-168 Ch. 50}

SECTION 1. POLICY

It shall be the policy of the State of Maine that no qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of the State of Maine or be subjected to discrimination by the State.

1. Protected individuals with disabilities

A. The protections in this non-discrimination policy and grievance procedure shall apply to individuals with disabilities as defined in Title II of the Americans with Disabilities Act and in Section 504 of the Rehabilitation Act, i.e., those persons who have a physical or mental impairment that substantially limits one or more of their major life activities, have a record of such an impairment, or are regarded as having such an impairment.

B. The protections in this policy and procedure shall apply, as well, to individuals with physical or mental disabilities as defined in the Maine Human Rights Act (MHRA), which is intended to be interpreted broadly to create greater coverage than under the Americans with Disabilities Act or Section 504. Individuals who have physical or mental impairments that substantially limit a major life activity, that significantly impair physical or mental health, or that require special education, vocational rehabilitation, or related services are protected by the MHRA. Individuals with specific disabilities listed in the MHRA are also protected. The MHRA also protects individuals who have a record of, are regarded as, or are likely to develop a physical or mental impairment or any of the specific disabilities under the MHRA.

2. These procedures apply to all programs, services, and activities of the State of Maine.

3. All programs, services, and activities, including grants and contracts, shall be available to individuals with disabilities in the same manner as accorded to all other persons in Maine.

4. Complaints from individuals with disabilities alleging discrimination with respect to access to State programs, services, and activities shall be processed quickly and fairly. At the same time, complainants should be informed that the Maine Human Rights Commission also will investigate claims of discrimination, if a complaint is filed with that office no later than 180 days after the alleged discriminatory action. Call the Commission at (207) 624-6050 (voice) or (888) 577-6690 (TTY) with any questions concerning their process.

5. The State of Maine designated employee with responsibility for coordinating State compliance with 45 C.F.R. § 84.7(a) and 28 C.F.R. § 35.107(a), the regulations implementing the ADA and Section 504 of the Rehabilitation Act with regard to programs, services, and activities, is the State Accessibility Coordinator. Pursuant to Executive Order 07 FY 04/05, each department or agency shall designate at least one accessibility coordinator.

SECTION 2. PROCEDURES

1. General

Any individual with a disability who believes he/she has been subjected to discrimination on the basis of disability may discuss the complaint with departmental staff and/or may file a grievance under this procedure.

It is unlawful for the State of Maine, its employees, contractors, or grantees to retaliate against anyone who files a grievance or cooperates in the investigation of a grievance.

2. Form for filing

A grievance may be made in writing or by tape recording. A grievance may be filed on the “Disability Discrimination Grievance” form attached to this policy (“Attachment 1”).

The grievance shall contain the name, address and telephone number of the person filing it (the grievant) and shall state the problem or action alleged to be discriminatory and any remedy or relief sought by the grievant.

3. Process

Grievances shall be processed in the following manner:

A. Step A – Discussion of complaint with department

Any individual with a disability (and/or representative of this person) may file a complaint with the departmental staff or the department head (or the department head’s designee) where the problem occurs, within 90 days of the alleged discriminatory action. The complaint at Step A may be verbal, written, or recorded.

Whenever possible, the staff will attempt to resolve complaints informally by discussing the matter with the individual and other relevant persons. The staff may consult with or may refer the complaint to the department’s Accessibility Coordinator or the State Accessibility Coordinator.

If the issue is not resolved within ten (10) working days from the date filed, the grievant may elect to move the grievance to Step B.

B. Step B – Filing of grievance

Any individual with a disability (and/or representative of this person) may file a formal grievance with the department’s Accessibility Coordinator or the State Accessibility Coordinator within 90 days of the alleged discriminatory action, or within 30 days of the departmental response or the completion of Step A, whichever is latest.

Any such grievance shall be in writing or tape recording identifying the specific complaint, together with the desired resolution, as well as the grievant’s name and contact information.

C. Step C – Investigation and decision

The State Accessibility Coordinator shall respond to any grievance that concerns Statewide matters. The State Accessibility Coordinator may assign responsibility to one or more departments for responding to the grievance or portion of a grievance.

The responsible Accessibility Coordinator (or his/her designee) shall conduct an investigation, if an investigation is warranted, of the grievance to determine its validity. The Accessibility Coordinator who is conducting the investigation shall prepare a draft written determination about the grievance and submit it to the responsible department head. The Accessibility Coordinator, after consultation with the department head or his/her designee, shall issue a written decision to the grievant within a reasonable time period.

The responsible Accessibility Coordinator’s written decision shall be the State’s final decision on the grievance.

4. Other remedies

The availability and use of this grievance procedure does not preclude a person with a disability from filing a complaint of discrimination with the Maine Human Rights Commission, the Civil Rights Division of the U.S. Department of Justice, or with any other appropriate court or government agency.

5. Accommodations

The State of Maine will make appropriate accommodations and modifications to ensure that individuals with disabilities can participate in or make use of these grievance procedures. Individuals who need auxiliary aids or services, or other reasonable modifications to rules, policies, or practices are invited to contact the agency Accessibility Coordinator or State Accessibility Coordinator.

6. Address and phone

The State Accessibility Coordinator may be reached at 150 State House Station, Augusta, ME 04333-0150 or at (207) 623-7950 (voice), (888) 577-6690 (TTY), or (207) 287-5292 (fax).

EFFECTIVE DATE: February 6, 2008 – filing 2008-67

Attachment 1

STATE OF MAINE

DISABILITY DISCRIMINATION GRIEVANCE

REGARDING PROGRAMS, SERVICES, ACTIVITIES

Procedures for filing a grievance are described in State of Maine’s “Non-Discrimination Policy and Grievance Procedure.” While we encourage you to use this grievance process, you also should be aware that the Maine Human Rights Commission is another avenue for investigating cases that are within its jurisdiction. You must file a complaint with that office no later than 180 days after the alleged discriminatory action. (If your grievance is resolved, you may withdraw your Commission complaint.) Call the Commission at (207) 624-6050 (voice) or (888) 577-6690 (TTY) with any questions concerning their process.

Please tell us if you need assistance in preparing this form, or if you need to submit your grievance in a different format.

Please fill in the following sections. Be specific and provide details to explain exactly what happened or what you are requesting. Feel free to attach additional pages if you need more room.

Name: ____________________________________________________

Address: ____________________________________________________

Contact Number(s) (telephone, TTY, pager): ______________________

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What is the State program, service, or activity that is the subject of your grievance or your request (for example, participating in a program or attending a public meeting)?

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Describe what happened (date, time, place, people involved, and why you believe the incident was discriminatory):

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What actions have you already taken to try to resolve this grievance?

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How would you like the State to resolve your grievance so that you may participate in the program, service, or activity without discrimination? Please list any alternatives, and let us know which you prefer. Potential solutions could include changes to policies, practices, or procedures; removing architectural, communication, or transportation barriers; and providing auxiliary aids and services.

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Please be advised that, in order to evaluate this grievance, the State may need to inquire as to the nature of your disability. If this information is provided to the State, it will be maintained in a confidential manner.

Please sign and date this form:

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Signature Date

Please give this form to the State employee running the program, or you may send it to: State Accessibility Coordinator, 150 State House Station, Augusta, ME 04333-0150.

Phone: (207) 623-7950 (voice), (888) 577-6690 (TTY), Fax: (207) 287-5292.

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For State employee use only:

Received by: _______________________________________________ Date: _____________________

This policy is adopted pursuant to the Americans with Disabilities Act of 1990, 42 U.S.C. §12101 et seq., (“ADA”); the Rehabilitation Act of 1973, 29 U.S.C. §701 et seq. (“Rehabilitation Act”); and the Maine Human Rights Act, Title 5 M.R.S.A. §4551, et seq.

12-168 Chapter 50 page 5

12-170 Bureau of Labor Standards

Chapter 3 Rules Governing Administration of the Maine Wage Assurance Fund

Code Me. R. 12-170 Ch. 3 Rules Governing Administration of the Maine Wage Assurance Fund {#sec-12-170-ch.-3 omnilex-key=us-me-regs-official--dept-labor--12-170 Ch. 3}

Summary: The purpose of this Chapter is to ensure consistent and fair administration of the Maine Wage Assurance Fund, 26 MRSA, Section 632, which was established by the Legislature to make payment of up to two weeks of earned wages owed an employee by an insolvent employer unable to make payment. These rules establish the following: the definition of terms used, the general administrative responsibilities of the Bureau of Labor Standards, the information needed to apply for payments, the process of determining the amount of earned wages, the information used to determine the insolvency of an employer, the process to be used in making disbursements, the process to be used when insufficient funds are available to make complete payments to all eligible employees, and the right to an administrative fair hearing.

1. Definitions

For the purpose of these regulations, the following terms will be construed as follows:

A. "Bureau" means the Bureau of Labor Standards within the Department of Labor.

B. "Director" means the director of the Bureau of Labor Standards or the director's designee.

C. "Fund" means the Maine Wage Assurance Fund.

D. "Wages" means compensation in the form of cash or check to be paid to employees for work performed. The term "wages" does not include fringe benefits, including, but not limited to, holiday pay, sick pay, vacation pay, insurance premiums, or severance pay benefits.

2. General Responsibilities

A. The Bureau has an affirmative responsibility, upon complaint, to investigate any complaint or other information related to business closings to determine whether all earned wages owed employees have been paid.

B. Former employees eligible for assistance under the Wage Assurance provisions of the law will be provided with or mailed a verification of eligibility as soon as administratively feasible following the completion of an investigation which determines potential eligibility.

C. The Director shall determine eligibility and payment must be made to all eligible former employees as soon as administratively feasible except as provided in Section 7.

3. Verification of Eligibility

A. Verification of eligibility from the Fund must be in writing and must include the following information:

1. The name, social security number, current address and telephone number of the employee claiming payment from the Fund;

2. The name and address of the employer;

3. The date the employer terminated business;

4. The employer's week-ending dates for pay weeks during which wages were earned but not paid and the amount of unpaid wages earned in each week.

5. Any information the employee may wish to provide which could be of assistance in securing payment of wages;

6. A statement of veracity and completeness of the information provided; and

7. The signature of the employee requesting payment.

B. Verification of eligibility forms must be printed and provided by the Bureau.

C. The Bureau may require completion of any Federal or State tax form it determines to be required. Forms required by the Bureau must be provided to the eligible employee(s) with the verification of eligibility forms.

4. Determination of Amount of Earned Wages.

A. The Director shall determine the amount of earned wages owed to each employee by the employer by examining payroll records, checks, or other reliable data.

B. Payments of earned wages by any third party shall be deducted from the total amount of wages determined to be earned.

C. If the Bureau determines that the employee is eligible for payment from the Fund, the amount of payment will be for the gross earned wages. If the gross amount cannot be determined, the payment will be the net amount due.

D. If payment is based on the gross earned wages, all payroll deductions including but not limited to federal and state taxes, insurance premiums, wage attachments and retirement plan payments will be the responsibility of the employee receiving payment.

E. The amount of earned wages determined by the director may not exceed the maximum of two weeks of wages as established in the law. In the event an eligible employee is owed more than two weeks of wages, payment must be made based on the two weeks for which the highest amount of wages are owed.

F. The amount of earned weekly wages paid by the Bureau may not exceed 150% of the average weekly wage determined by the Department of Labor, Bureau of Unemployment Compensation pursuant to Title 26 MRSA, § 1043, §§ 1-A and in effect during the period the unpaid wages to be compensated were earned.

5. Insolvency of Employer

The Director shall make a determination of insolvency and the date of termination of business upon receipt of any of the following documentation:

A. An affidavit from the employer or employer's representative stating that the employer has no assets from which earned wages may be paid;

B. A copy of the employer's petition in bankruptcy;

C. Information from financial institutions regarding the employer's assets and operations; or

D. Other reliable information.

6. Disbursements from the Fund

A. Following a determination by the Director of eligibility and amount of earned wages, the director shall inform the Office of the State Treasurer of the amount to be paid each eligible employee from the Fund.

B. Payments to eligible employees must be mailed to the current address supplied in the verification of eligibility.

C. If payment is returned to the Bureau for any reason, the Bureau shall attempt to contact the eligible employee or individuals who may have information regarding his or her whereabouts by mail and telephone.

D. If the Bureau is unable to ascertain the whereabouts of the eligible employee, the payment must be returned to the Office of the State Treasurer for redeposit in the Fund pursuant to appropriate financial procedures.

7. Insufficient Funds

In the event that insufficient funds or allotments are available to make complete payment to all former employees, the director may determine alternative payment methods, including, but not limited to, reduced payments and payment over time. In determining insufficient funds or allotment, the Director shall take into account any estimated or anticipated future liability of the Fund.

8. Appeals

A. Each individual who submits a verification of eligibility from the Fund shall receive written notice of the eligibility determination of the Bureau which must include notice of the opportunity for an administrative hearing.

B. Each individual who receives an eligibility determination from the Bureau shall have the right to an administrative hearing conducted by the Director in accordance with the provisions of the Administrative Procedure Act, Title 5 MRSA, § 8001 et seq.

History

• STATUTORY AUTHORITY: 26 MRSA, Section 632.
• EFFECTIVE DATE: September 9, 1986
• EFFECTIVE DATE (ELECTRONIC CONVERSION): December 25, 1996
• REPEALED AND REPLACED: July 5, 1998
• REPEALED AND REPLACED: 12-170 Chapter 3 page 1

Chapter 6 Rules Governing Sanitary Conditions on Certain Railroad Property

Code Me. R. 12-170 Ch. 6 Rules Governing Sanitary Conditions on Certain Railroad Property {#sec-12-170-ch.-6 omnilex-key=us-me-regs-official--dept-labor--12-170 Ch. 6}

Summary: The purpose of these rules is to provide reasonable sanitation standards in areas of railroad employment not covered by Federal or other State agencies.

1.0 DEFINITIONS

Bureau - Shall mean the Bureau of Labor Standards.

Commissioner - Shall mean the Commissioner of Labor or his/her designee.

Department - The Maine Department of Labor.

Director - Shall mean the Director of the Bureau of Labor Standards or his/her designee.

Federal Agency - Shall mean specifically the Occupational Safety and Health Administration (OSHA), the Federal Railroad Administration (FRA) and any other federal agency with specific health and sanitation standards relating to railroads that conflicts with these rules.

Railroad - Any railroad company or service that operates within the State of Maine.

2.0 COVERED AREAS

These rules shall apply to all locomotives, caboose cars, and other rolling stock, including camp cars, as well as any other work area in which sanitation is not governed by a federal agency or other state agency operating within the State. These rules do not apply to locomotives used only in yard switching services.

3.0 STANDARDS FOR COVERED AREAS

3.1 General Housekeeping

All covered areas shall be maintained in good order and repair and In a clean and sanitary condition at all tines.

3.2 First Aid Kit

A first aid kit suitable for the number of employees shall be maintained in each locomotive, caboose car and camp car, as well as at other covered defined work areas.

3.3 Drinking Water Supply

A. An adequate supply of sanitary drinking water shall be available and accessible to employees.

B. The use of common or shared drinking cups is prohibited. Individual single service paper cups may be used providing they are stored in a clean covered container.

C. When a drinking fountain Is provided, it shall be so constructed and maintained as to meet the requirements of the State of Maine Plumbing Code.

3.4 Washing Facilities

A wash basin, waterless hand soap, or other suitable cleansing facility for washing hands shall be provided. Soap or other suitable cleansing agent shall be supplied as well as a method to dry oneself. Water used for washing and other non-drinking purposes shall clearly be marked as non-drinkable.

3.5 Toilet Facilities

A. Shall be maintained to be free of dirt, sand, or water on floor.

B. Shall not be used for general storage unless materials are secured in a fixed position and do not otherwise inhibit an individuals use of the facilities.

C. Shall provide personal privacy.

D. Shall have a source of light.

E. Shall be ventilated by fan, vent, window, or other appropriate method.

F. Shall have heating facilities and adequate fuel to maintain comfortable temperature as weather conditions may require.

G. Shall have an adequate supply of toilet paper.

H. Shall have a covered waste receptacle.

I. Shall have a maintenance program for upkeep, repair, and reporting faulty equipment.

J. Shall have a regular schedule of disposal and cleaning of units that have holding tanks. Tanks should be emptied when they are 2/3 full.

K. Shall be cleaned when in use, at least daily, and more often as needed.

3.6 Eating facilities

No employee shall be permitted to eat or drink at any time where there is exposure to any industrial poison or other substances that may be harmful or hazardous to an employee's health.

4.0 INSPECTION

A. The Commissioner, Director, or designees will have the right to enter for the purpose of inspection any covered workplace in the State at any reasonable time upon the presentation of appropriate identification.

B. Unannounced inspections shall be made from time to time.

C. The Department will respond to written employee complaints as well as complaints of imminent danger.

D. Upon arriving at a site for an inspection, the Department representatives will notify management and labor officials of the purpose of their visit and will present to them a preliminary finding of their visit prior to their departure.

E. Management and labor representatives will be invited to participate In the inspection.

5.0 CITATIONS AND PENALTIES

A. The Director will issue in writing any citations and penalties resulting from an inspection.

B. Each citation shall describe the nature of the violation and have a specific time for abatement of the violation.

C. Citations are to be posted for employee review at or near the place of each violation accessible to employees.

D. A hearing may be requested in writing to the Director for any citation within 15 days of receiving the citation.

E. If a railroad can show that other federal or state agencies have applicable sanitation standards relating to a citation and that those standards have been met, the citation will be dropped.

F. The Director may issue penalties not to exceed $1,000 for each violation. Each day of violation after the abatement date shall constitute a separate violation.

6.0 COLLECTIVE BARGAINING

Although the employer has the ultimate responsibility to provide a safe and healthy workplace, nothing in these rules should be seen as infringing on the right of labor and management to collectively bargain the allocation of duties to promote and maintain healthful and sanitary workplace conditions.

History

• STATUTORY AUTHORITY: 1988 Public Law, Chapter 594 26 M.R.S.A. §§351-354
• EFFECTIVE DATE: July 26, 1989
• CONVERTED TO MS WORD: July 11, 2003
• CONVERTED TO MS WORD: 12-170 Chapter 6 page 4
• CONVERTED TO MS WORD: 4

Chapter 7 Rules Relating to Substance Abuse Testing

Code Me. R. 12-170 Ch. 7 Rules Relating to Substance Abuse Testing {#sec-12-170-ch.-7 omnilex-key=us-me-regs-official--dept-labor--12-170 Ch. 7}

SECTION 1. DEFINITIONS

A. Authorizing Statute - means 26 M.R.S.A. c.7, sub-c. III-A.

B. Department - means the Maine Department of Labor, Bureau of Labor Standards. (Note: Any correspondence should be directed to Director, Bureau of Labor Standards, State House Station #45, Augusta, Maine 04333-0045.)

C. Department of Human Services Rules - means rules adopted by the Department of Human Services under the authority of, or referenced in, 26 M.R.S.A. c. 7, sub-c. III-A.

D. Director - means the Director of the Bureau of Labor Standards, Maine Department of Labor or designee.

E. Employee Assistance Program (EAP) -- means an employee assistance program certified by the Department of Human Services or the Office of Substance Abuse.

F. Policy - means an employer's written substance abuse testing policy as it will be presented to the employees or applicants covered.

G. Random or Arbitrary - means a method of selecting those to be tested where all potential testees have an equal chance of selection by chance or where testing is based on criteria unrelated to substance abuse such as an anniversary or hiring.

H. Point of Collection Testing (POCT) ‑ means an initial screening test performed at the site where the sample is collected using a non‑instrumented testing device approved for that purpose by the federal Food & Drug Administration.

SECTION 2. EMPLOYEE CONSULTATION AND EMPLOYEE AND APPLICANT NOTIFICATION REQUIREMENTS

A. An employer shall consult with the employer's employees in the development of any section of a substance abuse testing policy and/or amendment which refers to employee testing. Consult means a two‑way communication between the employer and the employees regarding the proposed substance abuse testing policy. A committee formed to develop a random or arbitrary testing program under part 3 (CC) does not meet this requirement except as it regards the random or arbitrary program.

B. An employer shall give, at the time of its submission, individual written notice to employees that it has submitted a substance abuse testing policy and/or amendment to the Department for review. The notice must inform employees that they may submit written comments to the Department, as well as where and how an employee may review the proposed policy if not provided with the notice. The notice must inform employees of the manner and time frame in which they may comment to the Department and must display prominently the address of the Department. This requirement covers all policies even those which do not in any way pertain to employees.

C. An employer whose policy includes employee testing shall provide each employee with a copy of the written policy approved by the Department at least 30 days before the policy takes effect.

D. An employer whose amendment includes employee testing shall provide each employee with a copy of the written amendment approved by the Department at least 60 days before the amendment takes effect.

E. An employer shall provide a copy of the approved written policy to applicants before administering a substance abuse test. At a minimum, each applicant must be notified in writing at the time of application that they may be subject to a substance abuse test if selected for employment or placed on a roster, as well as where they may review the statute and the employer's written policy.

F. Nothing in this section is meant to inhibit additional methods of applicant and/or employee involvement.

SECTION 3. REQUIREMENTS FOR EMPLOYERS' WRITTEN SUBSTANCE ABUSE POLICY

A. Policy Format

1. Individual employer policies must be a single document) written in a manner that is understandable to a large majority of the employees and applicants. Provisions should be made within the policy for additional information or assistance to be made available to an employee or applicant, if requested.

2. To facilitate prompt review of and action on individually submitted employer policies, a specific format is requested. Failure to comply with the requested format may result in the submission being returned without Department approval.

3. The authorizing statute is very specific in many areas; therefore, it is required that the employer use both the statute and Department of Labor and Human Service's rules in developing a policy.

4. The following outline should be used in developing a policy as a minimum standard. Employers are encouraged to write the policy as a narrative. The sections concerning probable cause testing of employees, random or arbitrary testing of employees, and testing of applicants are optional, but must be included if they are to be a part of the employer's substance abuse testing policy.

a. Covered Establishment

i. Company name

AA. Location

BB. Mailing address

CC. Phone number

ii. Contact regarding substance abuse testing policy

AA. Location

BB. Phone number

b. Scope of Testing

i. Substances to be tested for:

AA. Specify substances and specify for each as allowed by statute and Department of Human Services rules,

1. test procedure to be used and cut-off limit for positive screening test,

2. test procedure to be used and cut-off limit for positive confirmation test.

ii. Probable Cause Testing of Employees:

AA. Classifications or position titles of employees that will be tested based on probable cause. An employer may elect to cover all employees under probable cause testing.

BB. Classifications or position titles that may make a determination of probable cause.

CC. Method by which determination will be communicated to the employee.

iii. Random or Arbitrary Testing of Employees:

AA. If the employer and the employees have negotiated an agreement covering random or arbitrary testing of employees, the policy shall so state that it is a product of a bargained agreement and Identify those classifications or position titles that are subject to random or arbitrary testing, as well as the procedure for selecting those individuals to be tested.

The collective bargaining agreement or appropriate sections; must be attached to the submission as an exhibit.

BB. If the employer does not have a collective bargaining agreement which covers random or arbitrary testing, the policy must show:

1. Those classifications or position titles which are subject to random or arbitrary testing.

a) The policy must include for each classification or position title a concise statement as to why the work is of a nature which would create an unreasonable threat to the health or safety of the public or co-workers if the employee were under the influence of a substance of abuse.

(NOTE: It is the stated statutory intent that this section be "narrowly construed.")

b) A more complete description of each position and a full justification for random or arbitrary testing must be submitted as an attachment provided with the policy.

2. The procedure for selecting those individuals to be tested.

CC. An employer having 50 or more employees who are not covered by a collective bargaining agreement may establish a random. or arbitrary testing program which applies to all employees. The written policy with respect to the parts of the policy addressing the random or arbitrary testing program must meet the standards below.

1. The employer shall appoint a committee of employees to develop the random or arbitrary testing program. The committee must consist of:

a) at least 10 of the employer's employees from a cross‑section of employees eligible to be tested; and

b) a medical professional trained in substance abuse testing procedures. If no such person is employed by the employer, the employer shall obtain the services of a person meeting these qualifications to serve on the committee.

2. Selection of employees to be tested under the random or arbitrary testing program must be done as follows:

a) Selection of employees to be tested must be performed by a person or entity not subject to influence by the employer, such as a Medical Review Officer.

b) Selection must be from a list of all subject employees provided by the employer. The list may not contain information that would identify the employees to the person or entity making the selection.

c) Employees covered under a collective bargaining agreement may not be included in the testing allowed pursuant to this paragraph unless they agree to be included under a collective bargaining agreement.

3. The policy developed by the committee must be approved by the Department of Labor. The employer may not change the policy regarding the random or arbitrary testing program without approval of the committee. The employer may choose not to submit the random or arbitrary testing program for approval and not to establish random or arbitrary testing program.

4. The employer may not discriminate against employees who participate or refuse to participate on the committee.

iv. Testing of Applicants:

AA. Classifications or position titles to be tested. An employer may elect to cover all applicants under applicant testing.

c. Consequences of Testing:

i. Action to be taken for refusal to submit to a test.

AA. Employee

BB. Applicant

ii. Action to be taken between a test and receipt of test results.

iii. Action to be taken based on confirmed positive result from a test of an employee.

AA. Opportunity for rehabilitation

BB. Action to be taken upon refusal to use rehabilitation resources.

CC. Procedures for returning the employee to the previously held job or position after rehabilitation.

iv. Action to be taken based on a subsequent confirmed positive test result.

v. Action to be taken based on a confirmed positive result from a test of an applicant.

vi. Action to be taken based on an employee's voluntary admission of a substance abuse problem and description of any available assistance and procedure for the employee.

d. Testing Procedures:

i. Identify sample collection facility or facilities.

ii. Method of sample collection.

a) Right of the testee to segregate a portion of the sample for testing at a laboratory of their choice.

b) Procedure regarding removal of clothing. (Note: This should describe the specific procedure to be used at the facility or facilities where sample collection takes place.)

c) Statement that the testee will not be observed, directly or indirectly.

d) Any actions that will be taken to ensure that the sample has not been substituted, adulterated, diluted or otherwise tampered with must be described. These actions must conform with the Department of Human Services Rules.

e) If and how the employer will use point of collect tests.

iii. Storage of sample.

iv. Chain of custody.

v. identify testing facility or facilities.

vi. Procedure for notifying employee or applicant of the result.

vii. Procedure for an employee or applicant to appeal and contest the accuracy of a confirmed positive result. At least one option for the appeal process must be at no cost to the employee or applicant.

e. Description of Rehabilitation Service

i. Description of employee assistance program services.

ii. Description of any additional rehabilitation services.

iii. Procedure to obtain services.

vii. Description of any possible employee payment for rehabilitation services allowed under 26 M.R.S.A. Section 685, 2., c.

SECTION 4. DEPARTMENT OF LABOR REVIEW PROCESS

A. Submission

1. Employers wishing to establish a substance abuse testing program after January 1, 1990 shall submit to the Director two copies of the following.

a. A signed letter of submission from an authorized company official.

b. A written policy in compliance with the authorizing statutes and applicable rules adopted by the Departments of Labor and Human Services.

c. Additional submissions which are not part of the policy, but which will assist the Department in reviewing the policy as applicable.

i. Description of the method the employer used in consulting with employees in the development of the policy, as well as the substance and impact of that consultation, if applicable.

ii. Description of the method the employer used to inform employees of the submission of the plan to the Department, manner and time frame that employees may comment to the Department.

iii. Description of the method to be used by the employer to notify employees following approval of the policy. At a minimum, this method must provide each employee with a copy of the approved policy, and a notice as to the effective date(s) on which testing may begin, if applicable.

iv. Blank samples of any and all forms, information sheets, or other materials used by the employer with their employees and applicants relating to the substance abuse testing program.

v. A copy of a collective bargaining agreement or appropriate sections must be included by those employers having a labor-management agreement concerning substance abuse testing.

vi. Any additional detailed information to support employer's rationale for determination of any specific classifications or position titles as appropriate for random or arbitrary testing.

vii. Certification by the Department of Human Services of compliance of testing laboratories and procedures with the authorizing statute and appropriate Department of Human Services rules.

viii. Certification by the Department of Human Services of compliance of the employee assistance program with the authorizing statute and appropriate Department of Human Services or Office of Substance Abuse rules.

ix. Signed employer certification that submittal complies with all applicable statutes and regulations including employee notification requirements.

(Note: This can be presented as a part of the transmittal letter in Section 4 A, 1 a.)

2. The Department shall notify the employer in writing of the date it has received the employer's submission.

B. Review Process

1. The Department review will be to assure compliance with the authorizing statute and applicable rules.

2. The Department shall allow a minimum of ten days to receive employees' written comments before a final approval determination is made. The ten days will start when the employer notifies employees that it has submitted a policy to the Department for consideration, and has made copies available to interested employees or their representative.

The comment period will not preclude the Department from starting its review, requesting additional information or clarification, or denying a part or all of a plan that is not in compliance.

3. The Department may consult with the Department of Human Services and/or the Office of Substance Abuse during a review to ensure compliance with their rules or the statute.

C. Notification

The employer will be notified at the earliest possible date of the need for additional information, clarification, and of the Departments final action.

1. Denial

a. The Department may deny approval of an entire policy if it is in noncompliance with the authorizing statute and applicable rules and/or is an incomplete submission.

b. A portion of a policy may be denied while other significant portions that are in compliance with the authorizing statutes and applicable rules are approved as long as that part denied is not basic to the whole. Whenever possible, the Department will seek to act on an employer's policy as a whole.

c. The Department shall notify the employer in writing of its decision and identify the area(s) where the policy was in noncompliance.

2. Approval

a. The Department shall notify the employer in writing as to the date of the approval.

b. The employer must wait a minimum of thirty (30) days after employees are notified as required by statute and these rules to start Initial testing. Testing of applicants may commence at any time after a policy has been approved.

SECTION 5. AMENDMENT OR DISCONTINUANCE OF APPROVED PROGRAM

A. Amendment

1. The same procedures that govern the establishment of a substance abuse testing policy will apply to amending an existing approved program except as provided for below.

2. The employer must wait a minimum of sixty (60) days after employees are notified as required by statute and these rules to start testing under the amendment. Testing of applicants may commence at any time after an amendment has been approved.

3. Approved policies will need to comply with statutory or regulatory changes prior to the effective dates of such changes through amendments as appropriate.

4. Employers with approved policies must notify the Department of any changes In EAP services, sample collection and/or testing facilities used. Notification must include certification of the new service provider(s) from the Department of Human Services. If the services, methods, or practices as described in the policy remain unchanged, the change of service provider(s) does not constitute an amendment. If described services, methods, or practices are changed, an amendment is needed.

5. Changes to job titles or classifications used in a policy which do not change the testing status of an employee do not constitute an amendment. Any changes which change the testing status of any employee will be considered an amendment.

6. Changes of address or of the company contact person(s) do not constitute an amendment, although policies must be revised and the Department notified.

B. Discontinuance

1. An employer shall notify the Department and employees In writing if it chooses to discontinue an approved substance abuse testing policy. The notice must include the effective date.

2. The Department shall withdraw approval for any discontinued policy.

3. Discontinuance of a portion of a policy will be treated as an amendment.

SECTION 6. ONGOING POLICY REVIEW AND DEPARTMENT RESPONSIBILITIES

A. The Department may review any approved policy at any time and may grant limited approval or withdraw approval from the policy, in whole or part, if it is found in noncompliance, or there is insufficient evidence to establish compliance.

B. The Department reserves the right to request additional information from an employer with an approved policy at any time.

C. The Department may establish a time period for regular review or re‑application of existing approved policies.

D. The Department shall notify all employers with approved policies and the Department of Human Services of any proposed amendments of these rules.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. c. 7, sub-c. III-A
• EFFECTIVE DATE: November 20, 1989
• AMENDED: April 2, 1995
• CONVERTED TO MS WORD: July 11, 2003
• AMENDED: September 26, 2004 - filing 2004-418
• AMENDED: APAO WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK: July 17, 2025

Chapter 8 Workplace Health and Safety Program for Employers with Modification Rate of 2 or More

Code Me. R. 12-170 Ch. 8 Rules Regarding Workplace Health and Safety Programs for Employers with Workers' Compensation Modification Rates of Two or More {#sec-12-170-ch.-8 omnilex-key=us-me-regs-official--dept-labor--12-170 Ch. 8}

SUMMARY: This chapter establishes standards for occupational health and safety programs required of employers with a workers' compensation insurance modification rate of two or more, pursuant to Title 39 MRSA Section 21-A, Subsection 4 as enacted by 1991 Public Law Chapter 615, Section A-22. Effective January 1, 1993, the authority for these rules will be transferred to Title 39-A Section 401, Subsection 5, as provided in 1991 Public Law Chapter 885.

A. DEFINITIONS

1. Bureau: "Bureau" means the Bureau of Labor Standards, Maine Department of Labor.

2. Commissioner's designee: "Commissioner's designee" means the Director of the Bureau of Labor Standards.

3. Director: "Director" means the Director of the Bureau of Labor Standards or the Director's designee.

4. mod rate: "Mod rate" means a workers' compensation insurance experience modification rate for an employer's establishments or operations in Maine.

B. NOTIFICATION OF EMPLOYERS

1. The Superintendent of Insurance shall communicate to the Director the names, Maine addresses, insurance carriers, policy term, and the mod rate of those employers that receive, in any policy year, an experience modification rating of 2 or more. Such communication must take place at the earliest possible time prior to the new mod rate taking effect. The mod rate reported must be the rate computed for those establishments or operations active in Maine.

2. The Director shall notify any such employer in writing of the requirement to undertake a workplace health and safety program, shall provide a statistical evaluation of the employer's workplace health and safety experience and shall enclose a set of workplace health and safety options for the employers information and consideration. Such options may include on-site consultation, education and training activities and technical assistance. A copy of the notice will be sent to the insurance carrier.

3. The employer shall submit a workplace health and safety plan to the Bureau within 90 calendar days of notification.

C. ELEMENTS OF AN EMPLOYER'S HEALTH AND SAFETY PLAN

1. The employer shall develop a written occupational health and safety plan which identifies the specific actions to be taken, the officials responsible for implementation and the dates by which the actions will be completed. If an appropriate plan already exists, a copy may be submitted. The plan must address the following five elements.

(a) Management commitment and employee involvement

(b) Worksite analysis and accident investigation

(c) Hazard prevention and control

(d) Safety and health training

(e) Medical management of injured or ill workers

2. The employer must describe what steps have and/or will be taken to improve workplace safety and health and to abate the documented hazards. If corrective action has recently been taken, those actions should be described. If implementation of a plan extends beyond the current policy year, each element should be described and the projected time frames for implementation specified.

3. The employer may describe any extenuating or unique circumstances that lead to the mod rating and how these problems have been addressed.

4. If the employer is unable to create a comprehensive program within the submittal deadline, the employer shall submit a preliminary plan which outlines the strategy and time tables within the current policy year. A final plan must be submitted prior to the end of the policy year.

5. The plan should involve employees to the greatest extent feasible to identify and correct possible hazards.

6. All individual employer submissions to the Bureau will be considered confidential under Title 26 MRSA Sections 3, 43, and 48.

7. If an employer has a mod rate of two or more in consecutive policy years, each succeeding plan must include a description of the results from previous plans and how the current plan has been refined using that experience. Repeated plan submissions should result in a more targeted and fully developed plans.

D. BUREAU'S REVIEW AND COMMENT

1. The Bureau will review each submission for relevance to the hazards identified, taking into account the experience and ability of the employer to identify and provide corrective action.

2. The Bureau will review and the Director will comment on all first submissions within 30 working days of receipt, unless further information is needed. The insurance carrier will receive copies of all review results.

3. The Bureau may wish to seek clarification of an employer's submission at any time during the review process. The Bureau may make on-site visits to evaluate the plan. If the Bureau does not receive clarification or is unable to have access to the site, the Director may choose to deem the submission incomplete.

4. The Director shall provide comments on the plan analyzing its strengths and weaknesses. If all, or part, of the plan is ruled to be incomplete or inappropriate, the problem areas will be identified and suggestions or options to address the problems will be included.

5. Employers who experience a mod rate of two or more and request Bureau consultation services shall be given a priority for those services.

6. Comments by the Bureau are advisory only and do not in any way release an employer from their legal obligation to provide safe and healthy working conditions.

E. EMPLOYER'S COMPLETION OF THE PROGRAM

1. The employer shall submit a final status report within 30 calendar days of the end of the term of the policy. If the employer is obligated to create another plan for the next policy term, the status report may be a part of the new plan.

F. BUREAU'S NOTIFICATION TO THE SUPERINTENDENT

1. The Director shall notify the Superintendent of Insurance of any employer that fails to submit a program as required above, submits one that is incomplete or inappropriate, or fails to complete the elements of the program. Copies of such notice must be sent to the employer and the employer's insurance carrier.

2. The Superintendent of Insurance shall assess a surcharge pursuant to the statute on that employer's workers' compensation insurance premium or the imputed premium of self-insurers, which must be paid to the Treasurer of the State who shall credit ½ of that amount to the Safety Education and Training Fund, as established by Title 26, Section 61, and ½ to the Occupational Safety Loan Fund, as established by Title 26, Section 62. Employers who fail to complete a required workplace health and safety program and who are assessed a surcharge prior to January 1, 1994, must be assessed a surcharge of 5%. Employers who fail to complete a required workplace health and safety program and who are assessed a surcharge after January 1, 1994, must be assessed a surcharge of 10%.*

*This section states the statutory requirements of the Superintendent of Insurance as expressed in 1991 Public Law Chapters 615 and 885. Chapter 885 has a general effective date of January 1, 1993 for this part. This information is included only for the information and convenience of readers, especially the regulated community. The Department of Labor has no regulatory authority over this part. This section marks the only change in the program as established by Chapter 615 and then transferred by Chapter 885 into a new Title of the Maine Revised Statutes Annotated.

History

• STATUTORY AUTHORITY: 39 MRSA Section 21-A, Subsection 4 as established in 1992 Public Law Chapter 615. Authority is transferred to 39-A MRSA Section 401 Subsection 5 effective January 1, 1993, pursuant to 1992 Public Law Chapter 885.
• EFFECTIVE DATE: March 28, 1993
• CONVERTED TO MS WORD: July 11, 2003
• CONVERTED TO MS WORD: APAO WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK: July 17, 2025

Chapter 9 Rules Governing Administrative Civil Money Penalties for Labor Law Violations

Code Me. R. 12-170 Ch. 9 Rules Governing Administrative Civil Money Penalties for Labor Law Violations {#sec-12-170-ch.-9 omnilex-key=us-me-regs-official--dept-labor--12-170 Ch. 9}

Summary: The purpose of this chapter is to provide parameters and procedures regarding the assessment of administrative civil money penalties for labor law violations, the procedure for appealing administrative civil money penalties and the requirement that the Bureau of Labor Standards effectively deploys its resources in an evidence-based manner.

Section I: Definitions

As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.

"Bureau" means the Bureau of Labor Standards, within the Department of Labor.

"Bureau Director" or “Director” means the Director of the Bureau or Director's designee(s).

C. “Business days” means calendar days excluding any Saturday, Sunday, or Maine state holiday.

D. “Commissioner” means the Commissioner of Labor or the Commissioner’s designee.

E. “Qualified hearing officer” means an individual with background or experience with adjudicatory proceedings under the Administrative Procedure Act; a Hearing Officer within the Division of Administrative Hearings within the Bureau of Unemployment Compensation, Department of Labor; or an attorney.

F. “Grave Violation” means a violation which relates to a hazardous occupation for minors as defined in 26 M.R.S. § 772, causes financial hardship for the employee, is likely to deter the exercise of legal rights, or which results in differential treatment of any employee within a protected class listed in 5 M.R.S. § 4571.

G. “Proactive Enforcement” means investigations, inspections, and enforcement actions which are initiated at the direction of the Director, rather than in reaction to a complaint. This includes expanding the scope of a complaint-based investigation to include potential violations by the same employer against other employees, whether at the same business location or otherwise.

H. “Probable Violation” means a set of facts which likely constitutes a violation, but which has not been determined as such by the Director nor adjudged as such by a court.

I. "Violation" means a single breach of the law as determined by the Director. For failure to respond to the survey and, where otherwise appropriate, each day may be considered a separate violation.

Section II: Penalty Calculation

This section applies to the assessment of administrative civil money penalties against employers determined to have violated Title 26, Chapter 7,subchapters I-IV.

A. Penalty Reductions

The number of violations will be multiplied by $1,000. The result will then be reduced in consideration ofthe applicable factors below. Either the reduced penalty or the statutory maximum penalty will apply, whichever is lower.

1. Size of Employer

Number of Employees Multiplier

1 - 20 .667

21 - 50 .850

51 - 100 .950

2. History of Previous Violations

The employer has never been adjudged in violation of Title 26, Chapter 7, Subchapters I-IV, has never entered into a settlement agreement or consent decree, and has never been penalized under these rules.

Multiplier – 0.8

If the employer is being penalized for multiple violations of the same statute, this multiplier is inapplicable.

If this multiplier is inapplicable for any reason, no further multipliers are applicable to the employer.

3. Gravity of the Violation

If the employer is being cited for a grave violation it is ineligible for this multiplier. If the employer is being cited for multiple violations, some of which are grave and others of which are not, the employer is ineligible for this multiplier. If the employer is being cited for a violation which is not grave, the employer is eligible for this multiplier.

Multiplier – 0.8

4. Good Faith

An employer demonstrates good faith if all of the below are applicable:

The employer complies in a timely manner with all of the Director’s requests for information and records. The employer's failure to comply with a reasonable and lawful request by the Director will render the employer ineligible for this multiplier;

If any wages are owed, the employer pays to the worker all wages owed, including applicable interest and all liquidated damages which would be recoverable in court under the statute;

The employer makes policy changes, institutes training, and/or modifies administrative procedures so as to satisfy the Director that a repeat violation is highly unlikely to occur; and

The employer demonstrates remorse for its actions, including by posting a notice in the workplace, in a location visible to workers, stating that the employer was found by the Bureau to be in violation of the law, stating which statutes it violated, and explaining any changes that were made pursuant to paragraph iii. The notice must remain in place for a period of not less than 90 days.

Multiplier - 0.8

B. Combining or grouping penalties for multiple violations

Where the penalty provision of the statutes allow, the Director may combine or group the penalty amounts for multiple violations of the statute.

Section III: Appeals

This section applies to appeals of assessments of administrative civil money penalties against employers determined to have violated Title 26, Chapter 7.

Notice of Penalty Assessment and Right to Appeal

The Director shall issue a Notice of Penalty Assessment in writing. Such notice must be sent by at least one of the following methods:

U.S. mail;

By hand; or

By email if the Bureaupreviously communicated with the employer by email.

The Notice of Penalty Assessment must state that the penalty may be appealed by making a written request for an appeal to the Commissioner. The employer may request the appeal by U.S mail, hand delivery or email. The request for an appeal must be received by the Commissioner within fifteen (15) business days from the date the Notice of Penalty Assessment was mailed or otherwise delivered.

Conduct of Hearing on Appeal to the Commissioner

The Commissionermay serve as the hearing officer or may assign the appeal to a qualified Hearing Officer.

The Hearing Officer may call upon the parties to appear telephonically or by remote video for a pre-hearing conference to identify issues, witnesses, exhibits and such other matters that may aid in the conduct of the hearing.

The Hearing Officer shall establish a hearing date and provide notice to the parties at least 10 days in advance of the hearing.

A party’s failure to participate in a pre-hearing conference and/or to comply with requirements of a pre-hearing order, such as providing witness and exhibit lists, may result in a default in accordance with 5 M.R.S. §9053(3).

The hearing will be conducted pursuant to the provisions of the Administrative Procedure Act governing adjudicatory proceedings, 5 M.R.S. §§ 9051-9064.

The hearing will be at the headquarters of the Bureau or at a place mutually agreeable to the parties. The hearing may be held telephonically or by remote video, at the discretion of the Commissioner.

The Hearing Officer may sequester witnesses, except a representative of the employer, the Director of the Bureau, and the Director of the Division of Wage and Hour. A party who is represented by counsel may have a representative in addition to counsel present throughout the hearing. The parties may agree not to sequester witnesses.

Evidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious business.

All witnesses shall be sworn by the Hearing Officer.

The parties will have an opportunity to present evidence. Cross-examination of all witnesses shall be allowed.

The Hearing Officer decides the Order of Proceedings. The Director has the burden of production. The appellant has the burden of proof.

Within 30 days of the close of evidence, including any written closing statements or legal briefs, if allowed, the Hearing Officer shall issue a written Recommended Decision to the parties. The Recommended Decision may be issued by U.S. mail, hand delivery or by email. The Recommended Decision shall include findings of fact sufficient to apprise the parties of the basis for the recommendation.

The parties may submit written objections or other comments on the Recommended Decision to the Hearing Officerby U.S. mail, hand delivery or email within ten (10) business days after the Recommended Decision was issued.

Final Decision

The Hearing Officershall issue a Final Decision , setting out the reasoning for the decision. The Final Decisionis final agency action within the meaning of 5 M.R.S. §11001. The Final Decision will be sent by U.S. mail, hand delivery or by email to all parties. The Final Decision of the Hearing Officershall be subject to review by the Superior Court, pursuant to 5 M.R.S. §11001.

Section IV. Collections

Payment of any penalty is due to the Department of Labor within 30 business days after the issuance of the Notice of Penalty Assessment by the Director. Payment of the penalty is stayed during any appeal.

Section V: Annual Evaluation of Enforcement Effectiveness

By no later than April 1 of each legislative session, the Director shall produce a report evaluating the extent of labor law violations and probable violations in the state, the effectiveness of the Bureau’s enforcement measures, and setting out an enforcement strategy for the forthcoming year. The report shall be supplied to the Joint Standing Committee on Labor and Housing as well as made available to the public.

The Director may partner with external individuals and/or organizations with relevant expertise for the purpose of developing a methodology to study the level of labor law violations and probable violations. The methodology shall be academically rigorous and aim to provide an overview of which types of violations and probable violations are occurring, in which economic sectors, and in which geographic areas. The study shall be capable of replication such that the first year provides a baseline against which subsequent years’ studies can be compared.

The Director may partner with external organizations in administering the study if the Director reasonably believes that the organizations meet the following criteria:

1. They possess relevant academic expertise or are likely to facilitate broader or more thorough participation of workers in the study; and
2. Their involvement will not bias the results of the study towards a predetermined outcome.

When measuring the effectiveness of the enforcement regime, the Director shall consider in particular whether the fines and civil forfeitures provide enough of a deterrent effect to induce compliance with the law. The Director shall also consider the Bureau’s strategy for the past year and assess which aspects of the strategy could be improved so as to generate further compliance.

When setting out an enforcement strategy for the forthcoming year, the Director shall focus in particular on how to most effectively use the Bureau’s resources to ensure that the maximum number of employers are complying with labor laws and the maximum number of workers are benefitting from the employment rights to which they are legally entitled. In designing such a strategy, the Director shall, among other considerations, take into account:

1. Which sectors of the economy have the highest number of violations and probable violations;
2. Which workers are least likely to exercise a private right of action or make a complaint to the Bureau; and
3. Which workers are most vulnerable and in need of protection, for instance because of low pay, speaking English as a second language, multiple forms of discrimination, the inability to exercise a private right of action due to mandatory arbitration clauses, dependency on an employer for housing, transportation, or visa status, the use of subcontracting or misclassification, or the gravity of the violations to which they have been subjected, among others.

The enforcement strategy shall set out a target for the proportion of enforcement resources allocated to proactive enforcement. The targeted proportion shall never be less than 40%.

Nothing in this rule prevents the Director from modifying the enforcement strategy before the following year’s annual report is due. The modified strategy shall be made publicly available.

The first of these reports shall be due by April 1 of the 132^nd Legislature.

History

• STATUTORY AUTHORITY: 26 M.R.S. §§ 42 and 53
• EFFECTIVE DATE: February 2, 2000 – filing 2000-79
• EFFECTIVE DATE: May 24, 2002 – filing 2002-122 (Major substantive)
• EFFECTIVE DATE: September 21, 2022 – filing 2022-177 (Major substantive)
• EFFECTIVE DATE: September 19, 2024 – filing 2024-190 (Major substantive)
• EFFECTIVE DATE: APAO WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK: July 17, 2025

Chapter 10 Rules Governing Employment Leave for Victims of Violence

Code Me. R. 12-170 Ch. 10 Rules Governing Employment Leave for Victims of Violence {#sec-12-170-ch.-10 omnilex-key=us-me-regs-official--dept-labor--12-170 Ch. 10}

Summary: The purpose of this chapter is to provide definitions and procedural guidance regarding required employment leave for victims of violence, assault, domestic violence, sexual assault, or stalking.

Section I: Application

These rules apply to employers of employees who are victims of violence, assault, domestic violence, sexual assault, or stalking who may need leave from employment to prepare for and attend court proceedings, receive medical treatment, or obtain other necessary services to remedy a crisis caused by domestic violence, sexual assault, or stalking.

Section II: Definitions

As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.

A. "Abuse" means:

1. Attempting to cause or causing bodily injury or offensive physical contact, including sexual assault;

2. Attempting to place or placing another in fear of bodily injury through any course of conduct, including, but not limited to, threatening, harassing or tormenting behavior;

3. Compelling a person by force, threat of force or intimidation to engage in conduct from which the person has a right or privilege to abstain or to abstain from conduct in which the person has a right to engage;

4. Knowingly restricting substantially the movements of another person without that person's consent or other lawful authority by:

a. Removing that person from that person's residence, place of business or school;

b. Moving that person a substantial distance from the vicinity where that person was found; or

c. Confining that person for a substantial period either in the place where the restriction commences or in a place to which that person has been moved; or

5. Communicating to a person a threat to commit, or to cause to be committed, a crime of violence dangerous to human life against the person to whom the communication is made or another, and the natural and probable consequence of the threat, whether or not that consequence in fact occurs, is to place the person to whom the threat is communicated, or the person against whom the threat is made, in reasonable fear that the crime will be committed.

B. "Assault" means intentionally, knowingly, or recklessly causing bodily injury or offensive contact to another.

C. "Bureau" means the Bureau of Labor Standards, within the Department of Labor, which is assigned responsibility for the regulation and enforcement of the law and rules for the Department.

D. "Compulsion" means the use of physical force, a threat to use physical force or a combination thereof that makes a person unable to physically repel the actor or produces in that person a reasonable fear that death, serious bodily injury or kidnapping might be imminently inflicted upon that person or another human being. "Compulsion" as defined in this paragraph places no duty upon the victim to resist the actor.

E. "Crisis" means an environment or situation where there is a clear and immediate threat to the victim's physical or mental health.

F. "Director" means the Director of the Bureau or Director's designee(s).

G. "Domestic Violence" means abuse or assault by a family or household member.

H. "Employer" means the corporation or entity that controls the employee's work assignments, including managers and supervisors with direct control of the affected employee.

I. "Family or Household Member" means spouses or former spouses, individuals presently or formerly living together as spouses, natural parents of the same child, adult household members related by consanguinity or affinity, and individuals presently or formerly living together and individuals who are or were sexual partners.

J. "Medical Treatment" means care necessitated by domestic violence, sexual assault, or stalking provided or prescribed by a licensed or certified medical professional, including psychiatric assistance or counseling.

K. "Sexual Assault" means the following when the victim submits under compulsion:

1. Any act between two persons involving direct physical contact between the genitals of one and the mouth or anus of the other, or direct physical contact between the genitals of one and the genitals of the other;

2. Any act between a person and an animal being used by another person which act involves direct physical contact between the genitals of one and the mouth or anus of the other, or direct physical contact between the genitals of one and the genitals of the other;

3. Any act involving direct physical contact between the genitals or anus of one and an instrument or device manipulated by another person when that act is done for the purpose of arousing or gratifying sexual desire or for the purpose of causing bodily injury or offensive physical contact; or

4. Any touching of the genitals or anus, directly or through clothing, other than as would constitute a sexual act, for the purpose of arousing or gratifying sexual desire or for the purpose of causing bodily injury or offensive physical contact.

A sexual assault may have occurred without allegation or proof of penetration.

L. "Stalking" means repeatedly following the victim or being at or in the vicinity of the victim's home, school, business or place of employment without reasonable cause.

M. "Undue hardship" means significant difficulty or expense considering the following factors:

1. The nature and cost of the action(s) requested or required to accommodate the victim;

2. The overall financial resources of the employer and the effect of the action(s) requested or required on expenses and resources;

3. The number of persons employed at the establishment and the effect of the requested or required action(s) on the staffing of the establishment;

4. The safety and health of the employees, customers, and the public and the effect of the requested or required action(s) on meeting those safety and health requirements; and

5. The assessment of undue hardship includes the fiscal, operational, and geographic relationship of other establishments owned or operated by the employer or by any parent corporation or entity of the employer.

Section III: Employer Requirements

A. An employer must grant reasonable and necessary leave from work for an employee who is a victim of violence, assault, domestic violence, sexual assault or stalking to:

1. Prepare for and attend court proceedings;

2. Receive medical treatment;

3. Obtain necessary services to remedy a crisis caused by domestic violence, sexual assault, or stalking.

B. The leave may be without pay except that an employee who has earned leave time that would otherwise be applicable to the leave requested may use this earned leave at their option.

C. An employer may seek a modification to or deny a request if:

1. The employer would sustain undue hardship from the employee's absence;

2. The request for leave is not communicated to the employer within a reasonable period of time under the circumstances; or

3. The requested leave is impractical, unreasonable, or unnecessary based on the facts then made known to the employer.

D. An employer may not sanction or deprive an employee of pay or benefits by reason of any action taken by such employee to invoke or assist in any manner the enforcement of this chapter.

Section IV: Employee Requirements

A. An employee who is a victim of violence, assault, domestic violence, sexual assault, or stalking who needs leave to address as listed in Section III A. must:

1. Communicate the request for leave as soon as possible after learning of the need; and

2. Provide the employer in a timely manner with the information necessary for the employer to make an informed decision on the request.

Section V. Complaint Process

A. Any aggrieved party who believes that they have been unreasonably denied leave under 26 MRSA Section 850 who contacts the Bureau will be provided a copy of these rules, a copy of 26 MRSA Section 850 and a complaint form.

B. Based on a written complaint by the aggrieved party, the Bureau will investigate in accordance with the procedures used in investigation of wage complaints, including, but not limited to, accessing employer records. The investigation of any complaint may be conducted with the cooperation any other agencies the Bureau deems appropriate.

C. Any communication with or information provided to the Department under this section will be considered confidential in accordance with MRSA 26 §3 and may not be divulged to any other person or agency except in so far as may be necessary for the enforcement of this chapter. Provided however that the Department may disclose such information:

1. When the aggrieved party and the employer consent to its release;

2. To any party involved in litigation under this chapter when the information is relevant to the claim;

3. to other government agencies when the Director believes that the information will further the protection of the public or assist in the enforcement of local, state, and federal laws.

Section VI: Penalties

A. For denial of leave in violation of this section, a fine of up to $1,000 for each violation of this section may be assessed. A fine assessed under this paragraph must be paid to the Treasurer of State. Additionally, the employer shall pay liquidated damages to the affected individual in an amount equal to 3 times the amount of total assessed fines; and,

B. For termination in connection with an individual exercising a right granted by this section, the affected individual may elect to receive:

1. Liquidated damages pursuant to paragraph A; or,

2. Reemployment with the employer with back wages.

C. The aggrieved party must provide notice of the violation to the Bureau and the employer within six months of the occurrence to warrant the penalties above.

History

• STATUTORY AUTHORITY: 26 MRSA §850
• EFFECTIVE DATE: May 14, 2001
• AMENDED: June 12, 2017 – Section VI, filing 2017-087

Chapter 11 Rules Governing Hazardous Occupations for Minors under the Age of Eighteen in Non-Agricultural Employment

Code Me. R. 12-170 Ch. 11 Rules Governing Hazardous Occupations for Minors Under the Age of Eighteen in Non-Agricultural Employment {#sec-12-170-ch.-11 omnilex-key=us-me-regs-official--dept-labor--12-170 Ch. 11}

Summary : The purpose of this Chapter is to prevent the exploitation of Minors through hazardous working conditions in non‑agricultural employment. These rules do not supersede Sections 771 and 773 of 26 M.R.S.A. which set minimum wages for employment in specific industries. Sec. 772 of 26 M.R.S.A. was amended to allow the Bureau of Labor Standards to adopt rules to develop and maintain a list of occupations not suitable for employment of minors. The rules must conform as far as practicable to the child labor provisions of the federal Fair Labor Standards Act of 1938 , 29 United States Code , Section 212 and any associated regulations.

1. Definitions

For the purpose of these regulations, the following terms will be construed as follows:

A. "Bureau" means the Bureau of Labor Standards within the Department of Labor.

B. "Director" means the director of the Bureau of Labor Standards or the director's designee in the Wage & Hour Division.

C. "Hazardous Occupation" means a State prohibited occupation for any minor under the age of sixteen or under the age of eighteen in non‑agricultural employment.

D. "Student Learner" means a student enrolled in a course of study and training in a CTE cooperative or vocational training program under a recognized State or local educational authority or in a course of study in a substantially similar program conducted by a private school.

E. "Apprentice" means a person who is employed in a craft recognized as an apprenticeable trade and is registered by the Bureau of Apprenticeship and Training of the U.S. Department of Labor as employed in accordance with the standards established by that Bureau, or is registered by a State agency as employed in accordance with the standards of the State apprenticeship agency recognized by the Bureau of Apprenticeship and Training, or is employed under a written apprenticeship agreement and conditions which are found by the Secretary of Labor to conform substantially with such Federal or State standards.

F. "Nude Entertainment" means any amusement, performance, exhibition or diversion which includes the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernibly turgid state. This does not include incidental nudity in a theatre or film performance or exhibition.

G. "Outside Helper" means an individual, other than a driver, whose work includes riding on a motor vehicle outside the cab for the purpose of assisting in transporting or delivering goods.

H. “CTE-Student” (Career Technical Education) mean a student enrolled in an approved CTE program offered from a CTE center or region as defined in 20-A M.R.S.A §§ 8301‑A, 8306-B, 8401, and 8451.

“Power driven hoisting apparatus” does not include grease rack lifts used in gasoline service stations, tire stores, and other establishments servicing automobiles.

2. Enforcement Responsibilities

A. The Director has the responsibility to ensure the protection of young workers from dangerous work and may, and upon written complaint shall, enter any establishment for the enforcement of laws that regulate the occupations of minors under the age of eighteen.

B. The Director has the responsibility of providing an updated printed list of hazardous occupations, determined by the Director, and shall make the same available to the public upon request.

3. State Prohibited Occupations

A. Minors Under Sixteen Years of Age

Minors under the age of sixteen may not be employed in the following occupations:

1. Any manufacturing occupation;

2. Any mining occupation;

3. Any processing occupation (except those allowed in retail, food service and gasoline service stations, and all other venues not prohibited by federal law);

4. Motor vehicle driving of any kind and outside helper;

5. Operation or tending of hoisting apparatus or of any power‑driven machinery other than non‑hazardous office machines or machines in retail, food service and gasoline service establishments that are allowed by federal law;

6. Construction occupations involving:

a. Maintenance and repair of public highways;

b. All roofing occupations;

c. All trenching and excavation operations;

7. All work in boiler or engine rooms;

8. Outside window washing that involves working from window sills and all work involving the use of ladders, scaffolds or their substitutes;

9. Cooking (except at soda fountains, lunch counters, snack bars or cafeteria serving counters and other venues allowed by federal law) and baking;

10. Occupations which involve operating, setting up, adjusting, cleaning, oiling, or repairing power‑driven food slicers and grinders, food choppers and cutters and bakery‑type mixers;

11. All work in freezers and meat coolers;

12. Occupations involving the use of power‑driven mowers or cutters, including the use of chain saws;

13. All warehousing occupations, including the loading and unloading of trucks and use of conveyers;

14. All welding, brazing or soldering occupations;

15. Occupations involving the use of toxic chemicals and paints;

16. Selling door‑to‑door (except when the minor is selling candy or merchandise as a fund‑raiser for school or for an organization to which the minor belongs, such as Girl Scouts of America) or work in a traveling youth crew;

17. All occupations on amusement rides, including ticket collection or sales;

18. Any placement at the scene of a fire, explosion or other emergency response situation: and

19. All occupations that are expressly prohibited for sixteen and seventeen‑year‑old minors;

B. Minors Sixteen and Seventeen Years of Age

Minors who are sixteen and seventeen years of age may not be employed in the following occupations:

1. Manufacturing and storing explosives;

2. Motor vehicle driving on public roadways and outside helper;

3. All mining occupations;

*4. Power‑driven woodworking machines;

5. Power‑driven hoisting apparatus;

*6. Power‑driven metal forming, punching and shearing machines;

*7. Slaughtering or meat packing, processing or rendering occupations (this includes meat slicers, grinders and choppers);

*8. Power‑driven paper products machines;

9. Manufacturing brick, tile, and kindred products;

*10. Power‑driven circular saws, band saws, and guillotine shears;

11. Wrecking and demolition occupations;

*12. Roofing operations;

*13. Excavation operations;

14. All occupations in places having nude entertainment;

15 Placement at the scene of a fire, explosion or other emergency except as provided in part 4(C) & 4(E);

*16. Gas or electric welding, brazing, burning or cutting if done in conjunction with other hazardous occupation such as wrecking, demolition and shipbreaking operations;

17. Work that involves entry into a confined space where the U.S. Occupational Safety and Health Administration regulations require a permit entry system under 29 CFR 1910.146 as amended August 1, 2003; and

18. Working at heights where the U. S. Occupational Safety and Health Administration regulations require special precautions or personal protective equipment:

a. Walking working surfaces more than 4 feet above the next closest surface without a standard railing as required under 29 CFR 1910.23 as amended August 1, 2003.

b. Fixed ladders of more than 20 feet in height; and

c. Scaffolding work performed more than 10 feet above the working surface supporting the scaffold where railings or fall protection is required under the U.S. Occupational Safety and Health Administration 29 CRF 1910.28 as amended August 1, 2003.

19. All occupations in registered dispensaries of marijuana for medical use authorized under Title 22, chapter 558-C and in establishments that cultivate, produce or sell marijuana or products in which marijuana is an ingredient or in recreational marijuana social clubs authorized under Title 7, chapter 417.

20. Limited Exemption for 17 Year Old Employees

Seventeen-year-olds, but no one under 17 years of age, may drive automobiles and trucks on public roads as part of their employment on an occasional and incidental basis if all the following requirements are met:

1. The automobile or truck does not exceed 6,000 pounds gross vehicle weight;
2. The driving is limited to daylight hours;
3. The 17-year-old holds a state license valid for the type of driving involved;
4. The 17-year-old has successfully completed a state-approved driver education course and has no record of any moving violations at the time of hire;
5. The driving takes place within a thirty (30) mile radius of the minor’s place of employment;
6. The automobile or truck is equipped with a seat belt for the driver and any passengers and the employer has instructed the youth that the seat belts must be used when driving the vehicle;
7. The driving may not involve: towing vehicles; route deliveries or route sales; transportation for hire of property, goods, or passengers; urgent, time-sensitive deliveries; transporting more than three passengers, including employees or the employer; more than two trips away from the primary place of employment in any single day to deliver the employer’s goods to a customer (other than urgent, time-sensitive deliveries which are prohibited); more than two trips away from the primary place of employment in a single day to transport passengers, other than employees of the employer.

The following definitions shall apply to Section 4 of these Rules:

1. “Motor vehicle” shall mean any automobile, truck, truck tractor, trailer, semitrailer, motorcycle, or similar vehicle propelled or drawn by mechanical power and designed for use as a means of transportation but shall not include any vehicle operated exclusively on rails.
2. “Driver” shall mean any individual who in the course of employment, drives a motor vehicle at any time.
3. “Outside helper” shall mean any individual, other than a driver, whose work includes riding on a motor vehicle outside the cab for the purpose of assisting in transporting or delivering goods.
4. “Gross vehicle weight” includes the truck chassis with lubricants, water, and full tank or tanks of fuel, plus the weight of the cab or driver’s compartment, body, and special chassis and body equipment, and payload.
5. “Urgent, time-sensitive deliveries” shall mean trips which, because of such factors as customer satisfaction, the rapid deterioration of the quality or change in temperature of the product, and/or economic incentives, are subject to timeliness, schedules, and/or turnaround times which might impel the driver to hurry in the completion of the delivery. Prohibited trips would include, but are not limited to, the delivery of pizzas and prepared foods to the customer, the delivery of materials under a deadline (such as deposits to a bank at closing), and the shuttling of passengers to and from transportation depots to meet transport schedules. “Urgent, time-sensitive deliveries” do not depend on the delivery’s points of origin and termination, an include the delivery of people and things to the employer’s place of business as well as from that business to come other location.
6. “Occasional and incidental” shall mean not more than one-third of the 17-year-old driver’s worktime in any workday and no more than 20 percent of the 17-year-old driver’s worktime in any workweek.

5. Clarification of Hazardous Occupation Definitions and Special Exemptions

A. The Director shall be guided by the definitions and special exemptions contained in Subpart C of Part 570 of Title 29 of the Code of Federal Regulations for minors under sixteen and Subpart E of Part 570 of Title 29 of the Code of Federal Regulations for minors who are sixteen and seventeen years of age in interpreting and enforcing these rules.

B. Apprentices, CTE-Students, and Student‑Learners

Exemptions from certain hazardous occupations may be made for apprentices and student learners under the following conditions:

1. The work of the apprentice, CTE-student, or student-learner in the occupations declared particularly hazardous is incidental to minor's training.

2. The work is intermittent and for short periods of time and is under the direct and close supervision or a journeyman (for an apprentice) or a fully-qualified and experienced adult (for a CTE-student or student-learner). "Intermittent" and "short periods of time" mean that the minor may not be the principal operator of prohibited machinery and the duties may not be such that the minor is constantly operating the prohibited machinery or working in the occupation declared as hazardous during the work shift, but only doing so as part of the training experience. Direct and close supervision is met when there is one journeyman or experienced adult working with the first apprentice or student-learner onside, and at least three journeymen or experienced adults working alongside each additional apprentice or student-learner during the periods when the apprentice or student-learner is performing work that would otherwise be prohibited by the rules. Direct and close supervision for CTE-students is met when 2 or fewer CTE-students are assigned to an experienced adult, the experienced adult has direct line of sight and within the student’s audio hearing range.

3. The employer shall provide workplace safety and health training along with the on-the-job training. CTE Program will provide basic safety training for the CTE-Student related to the selected program and field of work prior of CTE student performing work that would otherwise be prohibited by the rules. In the case of a CTE Cooperative Education program, the CTE Cooperative Education program instructor may arrange with job site supervisor for delivery of any required safety instruction. CTE program shall create any required schedule of work, educational performance deliverables and additional educational component found during live work field experiences as part of the written agreement.

4. There must be a written agreement providing a description of the job, processes, expectations, schedule of work and name of the apprentice, CTE-student, or student-learner. The employer and school coordinator or principal shall sign the agreement. CTE-students shall have a signed agreement between the student, CTE Instructor, CTE Coordinator (if any) and CTE Director. Copies of the agreement must be kept on file by both the school where the principal or director resides and the employer.

5. CTE Instructor, Coordinator and/or Director have direct control of CTE-student’s work, grade, attendance and overall program’s involvement within this educational component.

6. A high school graduate may be employed in an occupation in which training under an apprentice or student-learner program has been completed as provided in this section, even though the youth is not yet 18 years of age.

The restrictions that may be exempted under this sub-section are those listed in Section 3(B) that are marked by an asterisk.

C. Junior Firefighters

Paid and volunteer junior firefighters who are sixteen and seventeen years of age may:

1. Attend and take part in supervised training;

2. Participate in fire department functions within the rehabilitation area;

3. Pick up hose and clean up at the fire scene after the On-Scene Commander has declared the scene safe;

4. Enter a structure that has been on fire when deemed safe by the On-Scene Commander and accompanied by a firefighter;

5. With proper training, fight grass fires not involving standing timber; and

6. Perform search and rescue activities, other than structural firefighting.

They may not:

1. Perform fire suppression involving structures, vehicles, or wildland fires, except grass fires not involving standing timber;

2. Operate a fire department vehicle;

3. Respond with red lights;

4. Perform firefighting "overhaul" activities;

5. Respond to hazardous material events;

6. Perform any activity, except training, that involves the use of self‑contained breathing equipment.

7. Respond to any accident involving fire or extraction activities (1055's);

8. Respond to "ice rescue" activities, except within the rehabilitation area; or

9. Perform traffic control activities.

D. Junior Emergency Medical Services (EMS) Persons

Paid and volunteer junior emergency medical services persons who are sixteen and seventeen years of age may:

1. Attend and take part in supervised training;

2. Provide, under supervision, emergency medical treatment in accordance with the Maine Emergency Medical Service Act of 1982 (32 M.R.S.A. Chapter 2-B) and the Maine EMS Rules.

They may not:

1. Be first on scene of a medical emergency to which the EMS service has been summonsed;

2. Respond to any call that may be psychologically or physically traumatic to the junior EMS person, as determined by the senior member in charge of the welfare and actions of the junior EMS person during the call;

3. Operate a vehicle defined as an authorized emergency vehicle by 29-A M.R.S.A §2054;

4. Operate a privately-owned vehicle that is responding with one or more red lights;

5. Participate in any patient extrication, except in a support role in an area away from the scene of the extrication;

6. Perform traffic control activities.

E. Career-Oriented Law Enforcement Programs

1. Traffic control duties permitted. Notwithstanding any other provision of this article, a minor who is 14 years of age or older and is a volunteer participant in a career-oriented law enforcement program may perform traffic control duties in accordance with this section.

2. Training. A minor may not perform traffic control duties under this section until the minor has received traffic control training in accordance with the requirements of the supervising law enforcement agency. Proof of the minor's successful completion of the training must be maintained by the law enforcement agency.

3. Supervision. A minor may perform traffic control duties only under direct supervision of a law enforcement officer as part of a career-oriented law enforcement program. This supervision must:

a. Be from a close distance so that the officer does not become distracted or perform other duties; and

b. Include means of radio contact in the event that the minor needs to contact another officer for assistance.

4. Limitations on events. A minor may perform traffic control duties only at civic events, fair parking lots, parades, walks, foot races, car shows and charity events.

5. Limitations on locations. A minor may not:

a. Direct traffic or pedestrians on busy roadways or thoroughfares;

b. Assist in traffic control at places of heightened danger such as traffic stops or roadblocks;

c. Direct traffic in conjunction with crowd control or riot control;

d. Collect donations at a traffic light;

e. Direct traffic at funeral processions; or

f. Direct traffic at the scene of an emergency.

6. Night activities prohibited. A minor may perform the activities authorized under this section only during the period from sunrise to sunset.

F. Exception to the prohibitions on working in confined spaces (Sec. 3B(19)) and working at heights (Sec. 3B(20)) may be made for work of an emergency nature that affects the public’s health and safety. Such situations may include, but are not limited to, police, fire, emergency medical services and National Guard duty. All other restrictions in these rules still apply in such situations.

6. Coverage

These rules apply to all employment and nonemployment situations. Non-employment situations include but are not limited to legitimate training and volunteer programs that ensure the safety and well‑being of minors. These rules do not apply to minors in public and approved private schools where mechanical equipment is installed and operated primarily for the purpose of instruction.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. §772 (as amended by 2003 PL c. 59), and §773
• EFFECTIVE DATE: May 14, 2001 – filing 2001-153
• AMENDED: May 17, 2004 - filing 2004-158 (EMERGENCY)
• AMENDED: September 26, 2004 - filing 2004-419
• AMENDED: December 22, 2014 – filing 2014-288
• AMENDED: August 19, 2018 – filing 2018-147
• AMENDED: APAO WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK: July 17, 2025

Chapter 12 Rules Relating to Equal Pay

Code Me. R. 12-170 Ch. 12 Rules Relating to Equal Pay {#sec-12-170-ch.-12 omnilex-key=us-me-regs-official--dept-labor--12-170 Ch. 12}

I. Definitions.

As used in this chapter and in interpreting 26 MRSA §628, unless the context clearly requires otherwise, the following terms have the following meanings:

A. "Aggrieved party" means any individual, group, or organization, including current or former employees, or a labor union, who has been injured, or whose members have been injured, by a practice alleged to violate 26 MRSA §628 and these rules.

B. "Bureau" means the Department of Labor, Bureau of Labor Standards.

C. "Director" means the Director of the Bureau of Labor Standards.

D. "Effort" means the physical or mental exertion required for the performance of a job. Effort encompasses the total requirements of a job. Working conditions must be considered in making a determination of the degree of effort necessary to do a job to the extent reasonable and necessary.

E. "Employee" means every person who may be permitted, required, or directed by any employer to engage in any employment in consideration of direct or indirect gain or profit.

F. "Employer" means an individual, partnership, association, corporation, legal representative, political subdivision of the State, trustee, receiver, trustee in bankruptcy, and any express company or common carrier by rail, motor, water, or air doing business or operating within the State.

G. "Establishment" means an industrial or commercial facility or place of business. An entity operated by the same employer shall be considered a single establishment for purpose of this chapter even though it may operate at different physical locations, where employees at these separate locations are engaged in functionally similar operations and there is a substantial degree of central authority for establishing personnel rules and approving wage rates.

H. “Health care employer” means an employer who operates a health care facility as defined in 22 MRSA § 328.

I. "Job classification" means one or more positions sufficiently similar with respect to duties and responsibilities so that the same descriptive title may be used with clarity to designate each position allocated to the class; the same general qualifications are needed for performance of the duties of the class; the same tests of fitness may be used to recruit employees; and the same schedule of pay can be applied with equity to all positions in the classification under the same or substantially the same employment conditions.

J. "Merit increase system" means an established, bona fide, uniform, and objective system which rewards an employee with promotion, pay increases, or other advantages on the basis of competence.

K. "Responsibility" means the degree of accountability and reliability required in the performance of a job, with emphasis on the importance of the job obligation, including but not limited to, coordination of information, organization, and the well being of individuals.

L. "Salary schedule" means "a system used by an employer to determine how much an employee must be paid for their work, based on factors like the knowledge, skills, and qualifications required for the position; complexity of the job duties; scope of responsibilities of the role; and the employee’s education, experience, or seniority." A salary schedule can be referred to as a pay scale, compensation structure, or other title.

M. "Seniority system" means a system that gives preference to workers based on years of service. For example, a worker with more years of service may be paid more for performing a particular job than an employee with fewer years of service in that same job. A health care employer may be considered to offer a valid seniority system even if that system considers both years of service and/or relevant education and work experience for new hires, as long as consideration of relevant education and work experience does not result in another employee who has similar or greater years of service or relevant educational and work experience being paid less than a new hire performing comparable work.

N. "Skill" means the performance requirements of the job including, but not limited to, such factors as experience, training, education, ability, human relations, and communication. In reviewing the skill level of a position class, the efficiency of any individual employee's performance in the job is not, in itself, a factor in evaluating skill.

O. "Wages" means all payments made to or on behalf of an employee as remuneration for employment. The term wages includes all forms of compensation irrespective of the time of payment, whether paid periodically or deferred until a later date, and whether called wages, salary, or profit sharing. An expense account, monthly minimum, bonus, uniform cleaning allowance, board or lodging, use of company car, gasoline allowance, vacation and holiday pay and premium pay for work on weekends, holidays or other days, or hours in excess or outside of the employee's regular days or hours of work are also considered remuneration for employment under this chapter.

II. Equal Pay for Jobs with Comparable Requirements.

A. An employer shall not discriminate between employees within the same establishment on the basis of gender by paying wages to any employee in any occupation at a rate less than the rate paid to an employee of the opposite gender for comparable work on jobs with comparable requirements related to skill, effort, and responsibility.

B. Nothing in subsection A shall prohibit the payment of different wages to employees where such payment is made pursuant to any of the following:

1. A seniority system;

2. A merit increase system; or

3. A difference in the shift or time of day worked.

C. Nothing in paragraph A shall prohibit a health care employer from paying different wages to employees where such payment is made according to a salary schedule adopted based on the county in which the place of employment is located.

A health care employer must pay all employees performing comparable work on jobs that have comparable requirements relating to skill, effort, and responsibility in the same health care facility according to the requirements of 26 MRSA § 628.

For example, a health care employer operating health care facilities in Kennebec

County and Penobscot County may adopt a unique salary schedule for each

county.

D. Nonetheless, the preceding systems or circumstances must not be found to discriminate on the basis of gender.

III. Complaint Process

A. Any aggrieved party who believes that he or she has been discriminated against in violation of 26 MRSA §628 may file a complaint with the Bureau of Labor Standards. The Bureau must provide the aggrieved party with a complaint form on which the aggrieved party shall state in writing the facts upon which the complaint is based and the harm suffered. The aggrieved party stating that the facts presented are true to the best of her or his knowledge must sign this form. The form should be sent to the Bureau's Wage and Hour Division. [Note: the address of the Wage and Hour Division is 45 State House Station, Augusta, ME 04333‑0045.]

B. If the Bureau determines that the facts provided by the aggrieved party do not state a claim upon which relief can be granted under this chapter, it may dismiss the complaint but must keep confidential the name of the aggrieved party and employer involved. Written notice of any such dismissal must be given to the aggrieved party. The notice must also advise the aggrieved party of his or her right to bring a civil action under 26 MRSA §628, how such action may be brought, the deadlines for filing such action, and any available attorney fees, should the aggrieved party prevail. The Bureau will not pursue an investigation following such dismissal unless new evidence is presented which, on review, supports the merits of the claim. The Bureau will not accept a new case nor reopen a previously reviewed case that is the subject of a civil action.

C. As soon as practicable, the Bureau must, except in those complaints dismissed under subsection B, provide written notice to the employer against whom allegations have been made that a complaint has been filed, along with such information as is reasonably sufficient for the employer to understand and respond to the complaint. Where an aggrieved party requests confidentiality, the Bureau must make every effort to prevent the identity of the aggrieved party from becoming known to the employer except when doing so might compromise the Bureau's ability to conduct its investigation. In such cases, the Bureau will advise the aggrieved party of its need to reveal his or her identity and, thereafter, allow that party an opportunity to withdraw the complaint before notification is given to the employer.

D. With respect to all complaints, except those dismissed under subsection B, the Bureau must conduct an investigation and determine if reasonable cause exists to believe that discrimination has occurred in violation of this chapter. The investigation shall include a request that the employer respond to the complaint, a review of the employer's self-evaluation, if any, including a determination of whether the self‑evaluation meets the requirements of this chapter, and any relevant wage and personnel information. The investigation may include the examination of evidence probative of unlawful wage differentials such as a showing of pay differentials between employees with comparable skill, effort, and responsibility; and/or a showing that jobs within the employer's workforce are segregated by gender. As part of the investigation, the Bureau may hold fact‑finding hearings as it deems necessary. Such hearings will be limited in scope to those issues which the Bureau believes to be in question. The Bureau has the right to subpoena the records of the employer and to interview witnesses under oath in the same manner as provided for under the Maine Administrative Procedure Act (5 MRSA §8001 et seq .). The hearings may include an opportunity for both sides to present evidence and witnesses. If a party presents witnesses, a cross‑examination will be allowed. Any follow up examination, if allowed, will be solely at the discretion of the hearing officer.

E. In the course of any investigation pursuant to this chapter, the Bureau will consider as confidential any and all information received, and may not divulge such information except as allowed in 26 MRSA §3. Unless the parties agree otherwise, any negotiated settlement will be confidential.

F. At the conclusion of its investigation, the Bureau must make one of the following findings:

1. Reasonable Cause found. If the Bureau determines that there is reasonable cause to believe that discrimination has occurred under this chapter it may:

a. Seek a voluntary compliance agreement signed by the employer that eliminates the unlawful practice and provides appropriate relief to the aggrieved party; or

b. Refer the complaint to the Attorney General, informing the Attorney General of the relevant facts and recommending the commencement of a civil enforcement action.

2. No Reasonable Cause found. If the Bureau determines that there is no reasonable cause to believe that discrimination has occurred under this chapter the complaint will be dismissed.

Whenever a determination is made under this subsection, a written notice must be provided to the parties stating the action taken, the findings of fact, and the conclusions of law supporting that action. The notice must also advise the aggrieved party of his or her right to bring a civil action under 26 MRSA §628, how such action may be brought, the deadlines for filing such action, and any available attorney fees should the aggrieved party prevail.

G. Prior to the issuance of a reasonable cause determination made under subsection F, the parties may settle the complaint on mutually agreeable terms. Such an agreement will not affect the processing of a complaint made by any other aggrieved party, the allegations of which are like or related to the individual allegations settled.

Nothing in this subsection prevents the parties and the Bureau from agreeing to class‑wide relief, provided that the Bureau determines that:

1. The aggrieved party is an adequate representative of the class; and

2. The proposed settlement fairly compensates the class as a whole and remedies the discrimination.

All members of the class must be notified in advance of, and be given an opportunity to comment on, the proposed settlement. Any member may withdraw from the class and continue to pursue relief in a private action.

H. Any person affected by a determination of the Director may appeal that determination to the Commissioner of Labor by filing a written notice with the Commissioner stating the specific grounds of that person's objection within 15 working days from the issuance of the determination. After the 15 working days the determination is a final agency action.

IV. Presumption of Compliance.

A. Where an employer, charged under this chapter with unlawful discrimination, has completed a self evaluation which meets the standards set forth in Section V and can also make an affirmative showing that progress is being made towards removing or preventing wage differentials based on gender, in accordance with that evaluation, including implementing any required remediation plan, the Bureau will then presume that the employer has not engaged in gender discrimination in violation of this chapter.

B. In such cases, the Bureau must give the aggrieved party an opportunity to rebut this presumption through evidence which reasonably demonstrates that, notwithstanding the employer's self‑evaluation, the employer has violated this chapter. In meeting the burden of overcoming this presumption the aggrieved party may provide all relevant information including, but not limited to, evidence that:

1. The employer's job analysis devalues attributes associated with jobs occupied predominantly by members of one gender and/or over‑values attributes associated with jobs occupied predominantly by members of the other gender;

2. Notwithstanding non‑discriminatory basic pay rates, periodic raises, bonuses, incentive payments, or other forms of remuneration differ between jobs occupied predominantly by members of one gender; or

3. The job the aggrieved party occupies was not adequately evaluated.

4. A job evaluation process has been completed and, if necessary, a remediation process is in progress or has been completed, but the self‑evaluation has not been reviewed and updated at reasonable intervals to adjust for changes in the work environment over time.

C. An employer wishing to avail themselves of this presumption must produce documentation describing the self‑evaluation process in the detail necessary to show that they have met the standards under Section V, subsection A.

V. Employer Self‑Evaluation.

A. In order to be eligible for the presumption of compliance in accordance with Section IV, the self‑evaluation must:

1. Clearly define the establishment in accordance with Section I, subsection G;

2. Analyze the employee population to identify possible areas of pay discrimination;

3. Establish a job evaluation plan as a means of determining the value of jobs within the establishment. The plan must:

a. Be free of any gender bias;

b. Allow for the comparison of all jobs; and

c. Fully and accurately measure the skill, effort, and responsibility of each job based on the actual work performance requirements of the jobs evaluated;

4. Apply the job evaluation plan to all or a significant sample of jobs, focusing on those that are predominately occupied by one gender;

5. Create a job classification structure where jobs of equal value are placed in the same level or grouping;

6. Determine the base pay differential between jobs that are predominately occupied by one gender to those predominately occupied by the other gender, in order to identify any wage rate discrimination; and

7. Remedy any base pay differential identified in subsection 6. In order to meet this standard, such remediation may not reduce the pay of any employee or class of employees.

B. The presumption of compliance may be strengthened where, throughout the self‑evaluation, including any needed remediation, the employer maintains communication with and keeps employees apprised of the established process. The method and procedure for that communication may vary according to the size and organizational structure of the establishment. However, any method or procedure chosen should be adequate to reach all employees at the establishment.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. §42 and 1997 Resolves c.43
• EFFECTIVE DATE: November 19, 2001
• AMENDED: February 9, 2026 – filing 2026-042
• APAO ACCESSIBILITY CHECK: February 10, 2026 (no issues detected)

Chapter 13 Rules Governing the Establishment and Use of Fair Minimum Wage Rates on State Construction Projects

Code Me. R. 12-170 Ch. 13 Rules Governing the Establishment and Use of Fair Minimum Wage Rates on State Construction Projects {#sec-12-170-ch.-13 omnilex-key=us-me-regs-official--dept-labor--12-170 Ch. 13}

Summary: The purpose of this Chapter is to establish definitions and procedures to ensure the consistent and fair administration of the Minimum Wage Rates on State Construction Projects Law as presented in 26 MRSA Chapter 15.

Section I: Definitions

For purposes of the law and these rules, the following words have these meanings:

"Advisory Board" means the Minimum Wage and Benefit Rate on Construction Projects Advisory Board as established in 26 MRSA §1307‑A and constituted in this chapter.

"Benefits" means payments, other than wages, made to a worker or to a third party on behalf of the worker, such as a deferred contribution plan. The definition of benefits in 26 MRSA §1308 is expanded to include registered apprenticeship training and education and Earned Paid Leave if applicable. Benefits do not include Unemployment Compensation, Workers' Compensation, Paid Family Medical Leave, or other contributions required by law except for Earned Paid Leave. Benefits also do not include general training, use of a company vehicle, or other provisions of goods or services which benefit or convenience the employer.

"Bureau" means the Bureau of Labor Standards within the Department of Labor.

“Certified Payroll Survey” or “CP Survey” means a survey conducted as described in 26 MRSA §1308-1 paragraph B.

“Collection Period” means the timeframe when the Bureau can accept new wage data from survey respondents. This period immediately follows the observation period. This is currently set by statute to end after the second week of October.

"Contractor" means an owner, executive, or manager of a company performing work in the construction industry.

“Construction Classification” or “Construction Class” refers to one of four types of construction project. These are:

Residential – construction activities in NAICS Industry Group 2361 (Residential Construction), or specialty trade construction work specific to single-family and two-family dwellings.

Building – all construction activities in NAICS Subsector 236 (Construction of Buildings), except those specified in (1) above.

Highway and Earthwork – Construction activities listed in NAICS Industry Groups 2372 (Land Subdivision) and 2373 (Highway, Street, and Bridge Construction), except the construction of bridges, elevated highways and overpasses which are classified in (4) below.

Heavy and Bridge – all construction activities in NAICS Subsector 237 (Heavy and Civil Engineering Construction), except those in (3) above.

“Davis-Bacon Survey” or “DB Survey” means a survey conducted as described in 26 MRSA §1308-1 paragraph C.

"Director" means the Director of the Bureau of Labor Standards.

"Filing date" means the day a public agency or its representative receives an official wage determination.

“Mailed Survey” means a survey conducted as described in 26 MRSA §1308-1 paragraph A.

“Median” means a geometric median calculated using hourly wage rates and hourly benefit rates. This pair of rates forms a total compensation package

“NAICS” stands for North American Industry Classification System. A NAICS code is a 6-digit industry identifier based on the primary economic activity of a business. NAICS codes used are those published by the U. S. Office of Management and Budget in 2022. The U.S. Bureau of Labor Statistics' “BLS-Only NAICS Codes” addendum are also used. This addendum separates residential and non-residential specialty trade contractors.

“Observation Period” means a timeframe of work performed to be reported to the Bureau for calculating wage determinations. This is currently set by statute to be the second and third weeks of July.

" Per diem in lieu of wages" means an allowance paid to a worker to cover personal expenses such as meals, travel, lodging, and incidental expenses.

“Region” means a group of adjoining counties with at least one metropolitan county, defined by the federal Davis-Bacon program in the 2022 Building survey as: Androscoggin, Cumberland, Kennebec, Penobscot, Sagadahoc, and York. Regions will be identical between all the surveys which the Bureau conducts. The Bureau will not combine data between regions when calculating local rates.

"Registered Apprentice", is a person participating in a registered apprenticeship program as defined in 26 MRS, §1314. The holder of an apprentice license issued by the Maine Department of Professional and Financial Regulation is not a registered apprentice.

"Temporary or Emergency Repairs" means unplanned construction activities necessary to perform as soon as an issue is found.

“Total Compensation Package” means the hourly wage rate and the hourly benefit rate for a trade.

"Trade" means a construction work activity engaged in by an individual worker. The Bureau will use the US Office of Management and Budget's 2018 version of the Standard Occupational Classification (SOC) Manual to categorize individual trades.

“Wages” means payment(s) made to the worker in exchange for work performed. This includes all payments made based on an hourly rate, such as overtime, stipends, shift differential, or longevity.

“Week” used in relation to the start and end times for the survey, means a 7-day period starting on Sunday and running through Saturday (e.g. the second week of the month begins on the Sunday between the 8^th and the 14^th and ends on the Saturday between the 14^th and 20^th).

"Worker" means a person engaged in a construction trade that is eligible for coverage under a rate determination. It includes work leaders who primarily perform trades work, even if they have some supervisory responsibilities. It excludes owner-operators who qualify as bona fide independent contractors.

Section II: Advisory Board of Minimum Wage and Benefit Rates on Construction Projects

The Advisory Board will consist of eight members to be appointed by the Director as follows:

A worker, not covered by a collective bargaining agreement, engaged in a building construction trade;

A worker, covered by a collective bargaining agreement, engaged in a building construction trade or the representative of a union covering a building construction trade;

A worker, not covered by a collective bargaining agreement, engaged in a highway or heavy and bridge construction trade;

A worker, covered by a collective bargaining agreement, engaged in a highway or heavy and bridge construction trade or the representative of a union covering a highway or heavy and bridge construction trade;

A building contractor that is not a signatory to a collective bargaining agreement;

A building contractor that is a signatory to a collective bargaining agreement;

A highway or heavy and bridge contractor that is not a signatory to a collective bargaining agreement; and

A highway or heavy and bridge contractor that is a signatory to a collective bargaining agreement.

The Director serves as chair of the Advisory Board. The Director may designate a person from the Bureau staff to preside as chair in the Director's absence.

The Director may designate a person from the Bureau staff to serve as Secretary to the Advisory Board.

The Director shall call meetings as deemed necessary. The Director or their designee will set the agenda for each meeting.

The Advisory Board will provide advice through discussion and consensus.

Section III: Overview of Process

The Bureau will design survey methods to govern the collection, processing, and reporting of wage and benefit information. The Standards and Guidelines for Statistical Surveys, published in 2006 by the federal Office of Management and Budget, is used as guidance.

Section IV lists general methods used in all surveys the Bureau conducts. This includes the target population for all surveys.

Section V lists methods specific to each individual survey. This includes the sampling frame for each survey.

Section VI lists the Bureau’s requirements for survey respondents to comply with 26 MRSA §1308 1-A.It includes guidance forreporting the appropriate trade, wage, benefit, county, or construction classification for workers.

Section VII describes how the Bureau will calculate and compare the median wage and benefit rates for each survey.

Part A lists rules which apply to the calculation of rates and comparison of results for all surveys.

Part B details how the results of the mailed survey are compared against the results of the certified payroll survey. This includes an order of precedence for selecting the highest rates.

Part C describes how trades in the Davis-Bacon wage determinations convert to SOC codes. It also describes how to compare the median total compensation packages to the results from Part B.

Section VIII lists how the Bureau will make rate determinations available. This includes a 30-day notice period where rate determinations are publicly available before going into effect. This section also lists requirements the Bureau has for contractors and subcontractors to comply with 26 MRSA §1309 and §1310.

Section IX describes enforcement of the law and rules. It describes the requirements the Bureau has for employers to keep payroll records and classify and compensate workers appropriately.

Section IV: General Survey Procedure

The design of the surveys is as follows:

The target population are workers whose Standard Occupational Classification (SOC) code

1. Is in the Minor Group 472 (Construction Trades Workers); 474 (Other Construction and Related Workers); or 475 (Extraction Workers), excluding trades specific to Oil and Gas, or Underground Mining; or
2. Has a corresponding labor classification recognized by the federal Wage and Hour Division as being subject to Davis-Bacon wage determinations; or
3. Is a trade for which the Bureau has historically published Prevailing Rates; or
4. Is determined to be related to construction trades and in a category as defined in §1308 (1)(B).

If Prevailing Rates are not determined for a trade for 5 years, or if there is no survey data for a trade for 3 years, the Bureau will remove that trade from the target population. The Bureau may also remove trades from the target population if it believes there will not be 10 or more workers in Maine during the observation period.

The Bureau will make a reasonable effort to ascertain the wage and benefit rates in collective bargaining agreements for trades in the target population. If a collective bargaining agreement covers 10 or more trade workers in every region, the Bureau may use those wage and benefit rates instead of including the trade in a survey.

The Bureau may make minor changes to the survey design as part of a pilot study to gauge the effect on received data quality and response rate. Pilot studies cannot be undertaken with the intent of affecting Prevailing Rates.

The collection and processing of data for the surveys is as follows:

The Bureau will make a reasonable number of attempts to solicit respondents for wage and benefit information.

The Bureau will accept new data through the end of the collection period. If a respondent does not submit complete information before the end of the collection period, the Bureau will provide notice of an additional 15 business days from the date of the notice to complete their submission before calculating rates.

Survey data will be used for statistical purposes only.

The Bureau will classify data from residential construction projects as building construction.

Section V: Specialized Survey Procedures

For the Mailed Survey only:

The Bureau will update the sampling frame annually, comprised of the following:

1. Businesses in the Department's Enhanced Quarterly Unemployment Information (EQUI) file with a NAICS code in the 23 (Construction) sector, excluding Residential Construction.
2. Temporary help and business support servicers known to supply workers to construction sites, such as flagging services.
3. Businesses who have previously volunteered data under Part iii(a) below.

The Bureau will conduct a census of businesses in the sampling frame who employ 5 or more workers. The Bureau may use weighting methods to sample a subset of this group. The Bureau may also develop methods to exclude employers from the sampling frame if they are likely to be exempt from data collection.

The Bureau may include additional sets of data generated during the observation period from the following sources:

1. Survey submissions made by Maine businesses not part of the sampling frame who employ workers in the target population.
2. Certified payroll submissions made to State letting agencies under 26 §1311 by Maine businesses not part of the sampling frame.
3. Payroll submissions made to the federal Department of Labor for the Davis-Bacon Wage Survey by Maine businesses not part of the sampling frame.
4. Wage and benefit rates established under collective bargaining agreements for Maine workers whose data was not recorded in the mailed survey.

For the Certified Payroll Survey only:

The sampling frame are State letting agencies who collect certified payroll records for public works construction.

The Bureau will not collect or consider certified payroll records from public works projects subject to the federal Davis-Bacon Act.

For the Davis-Bacon Survey only:

The sampling frame are Davis-Bacon rates published by the federal Department of Labor’s Wage and Hour Division’s Branch of Wage Surveys, or the successor division which conducts the federal Davis-Bacon Wage Survey.

All Davis-Bacon wage determinations are assumed to be calculated using data from 10 or more workers. The Federal Wage and Hour Division may provide data to negate this assumption.

The Bureau will not adopt Davis-Bacon wage determinations for trades which cannot reasonably be compared to the results of the mailed survey or certified payroll survey, or are based on data from less than 10 workers

Section VI: Collection of Wage and Benefit Information

Employers and letting agencies surveyed by the Bureau for wage and benefit information will report for all workers during the observation period.

Workers who have no hours worked during the observation period (e.g. vacation, sick leave, etc.) will be reported according to their regular work schedule

Workers with more than one trade, wage rate, benefit rate, county, or construction classification will be reported once as how they spend most of their work hours. Workers who spend an equal or unknown amount of time with more than one trade, wage rate, benefit rate, county, or construction classification will be reported as follows:

• 1. Trades and construction classifications will be reported as whichever is closest to the primary economic activity of the employer. 2. Wage and benefit rates will be reported at the highest rate earned during the observation period. 3. County will be reported as the county where work was performed which is closest to the employer’s physical location.

Construction trades will be classified as work performed, or the skills, education, or training needed to perform the work.

Apprentices and trainees are classified with the journeymen and masters of the trades they receive training in.

Helpers and aides not in formal training for the trade they are assisting are classified as Construction Laborers.

Welders are classified as the trade to which the welding is incidental.

Construction classifications will be reported as the project on which the work is being performed, e.g. workers on a building project would be classified in building construction classification. If working on a sewerage treatment plant project, these same workers would be classified in the heavy and bridge construction classification.

The Bureau may request that respondents provide data as:

The hourly wage and benefit rates which workers are compensated for; or

The total wages and benefits earned, either through working or the use of accrued time off, and the total number of hours compensated.

The Bureau may request that respondents convert the total benefits paid to an hourly rate. The conversion will be accomplished using the following formula:

(C/H) x F = Hourly Benefit Rate, where

C equals the cost or value of the benefit for some period.

H equals the yearly hours worked by the worker.

F is the time adjustment factor:

If C is the annual cost, F equals 1.

If C is the quarterly cost, F equals 4.

If C is the monthly cost, F equals 12.

If C is the biweekly cost, F equals 26.

If C is the weekly cost, F equals 52.

Section VII: Calculation of Fair Minimum Wage and Benefit Rates

General Provisions

When performing calculations, the Bureau will not combine data from two or more surveys.

Calculations of all-industry, statewide, and local rates will only be compared at the same levels of locality (e.g. statewide rates will not be compared against local rates, and local rates will not be compared across different regions).

If a trade has two or more total compensation packages as the median, the Bureau will use the total compensation package with the highest wage component.

If two total compensation packages being compared are equal, the total compensation package with the higher wage component will be chosen.

Comparing results of the Mailed Survey and the Certified Payroll Survey

The Bureau will calculate a median total compensation package for every trade with 10 or more workers at the all-industry, statewide, and region levels.

1. The Bureau will not determine or enforce a Prevailing Rate for trades with fewer than 10 workers in both the mailed survey and the certified payroll survey.

When comparing the results of the all-industry rates, the Bureau will select the highest total compensation package for a given trade.

When comparing the results of both the statewide and the local rates in each region, the following order of precedence is used:

1. If both surveys report 10 or more trade workers in the region, the Bureau will choose the highest total compensation package for the trade;
2. If only one survey reports 10 or more trade workers in a region, the Bureau will choose that survey’s total compensation package for the trade:
3. If neither survey reports 10 or more workers for a trade in a locality, the Bureau will use the all-industry rate for the trade if it exists.

Comparing Results Against the Davis-Bacon Survey

Once the comparison in part B is complete, the Bureau will obtain the Davis-Bacon wage determinations for the building, highway, and heavy construction classifications for a given county, using the most recent wage determinations as of the date when the comparison in part B was completed. The residential construction classification rates will not be used.

Every trade in a Davis-Bacon wage determination will be converted to the single, most comparable SOC code based on the Bureau’s knowledge and expertise. The Bureau may consider information available from U.S. DOL about the trade when making the conversion. The Bureau will not consider any SOC codes if a corresponding all-industry rate was not found as part of the calculation in Part B.

When comparing the Davis-Bacon wage determinations of the converted SOC trades against the rates chosen from Part B, the highest total compensation package will be the final Prevailing Wage and Benefit Rates for the given county.

Section VIII: Issuance of Determinations

Wage determinations will be published to the Bureau’s website for a 30-day notice period, after which these rates go into effect.

• 1. The Bureau may correct clerical errors found in wage determinations without a 30-day notice period.

Wage determinations have no expiration date. Wage determinations will list the effective date of the prior set of determinations they replace.

Requests for determinations must use the process and web page specified by the Bureau.

The Bureau will assign building construction wage determinations to residential construction projects.

If a wage determination request involves construction from more than one category, the Bureau will issue separate wage determinations for each category.

A public agency or its representative must include a statement in any bid notice that a wage determination is in effect for the duration of the project. The bid package must contain the wage determination(s) for the project. The contract must stipulate the winning bidder provides the included wage determination(s) to all subcontractors.

Section IX: Enforcement

• 1. The Bureau and its Director will enforce these rules and laws they are based on. 2. Contractors and subcontractors will keep a copy of the project wage determination(s) at the work site. Wage determinations must be posted in a prominent location, easily accessible by their workers.

Contractors and subcontractors on projects without a static work site (e.g. a rural road resurfacing project) may meet this requirement by giving each worker a copy of the wage determination. Wage determinations must be provided within the first full day that the worker is on the project. The contractor or subcontractor must be able to document that each worker has received a copy of the wage determination.

• 1. Employers must keep a record for each payroll period of every worker who worked on the job site. These records must be current to within three days of the latest pay period paid, and be retained, preserved, and open to inspection by a Bureau representative for at least three years after completion of the project. These records must contain the name, trade or job title, hourly wage and benefit rate(s), and total wages and benefit(s) paid.

The trade listed on these records is not binding on the Bureau. The trade for which a worker should be paid may be determined through job site inspections or interviews with the affected worker(s), any co‑workers, or any supervisors who are working or have worked on the site.

• 1. Each day a worker is not paid in accordance with the law and these rules is a separate violation. 2. Workers on covered projects must receive wages at a rate greater than or equal to the Prevailing Wage determined by the Bureau. 3. Workers on covered projects must receive a combination of wages and benefits at a rate greater than or equal to the total compensation package determined by the Bureau.

Contractors may increase the hourly wage component of a worker's total compensation package as a substitute to providing the Prevailing Benefit rate.

• 1. Records of employee benefits paid must be recorded on a per hour basis as presented in Section VI. 2. An employer who violates 26 MRS sections 1301-1307 will be issued a Notice of Violation in writing. Employers will have 15 business days from the date of issuance to request an appeal in writing, which may include email. Appeals will be governed by the appeals process set out in 12-170 C.M.R. ch 9, section III.

History

• STATUTORY AUTHORITY: 26 MRSA §42
• EFFECTIVE DATE: October 7, 2001 – filing 2001-421
• EFFECTIVE DATE: October 9, 2007 – filing 2007-426
• EFFECTIVE DATE: May 4, 2022 – filing 2022-081
• EFFECTIVE DATE: APAO WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK: July 17, 2025
• REPEALED AND REPLACED: November 23, 2025 – filing 2025-225

Chapter 15 Rules Relating to Severance Pay

Code Me. R. 12-170 Ch. 15 Rules Relating to Severance Pay {#sec-12-170-ch.-15 omnilex-key=us-me-regs-official--dept-labor--12-170 Ch. 15}

1. Definitions

As used in this chapter and in interpreting 26 MRSA §625-B, unless the context clearly requires otherwise, the following terms have the following meanings:

A. "Continuously employed" means the employee has worked for the covered employer without a break of employment. Absence from the workplace while on paid or unpaid leave, including but not limited to vacation, sick, or family medical leave, or workers' compensation, is not considered a break in service.

B. "Date of termination or relocation" means the date on which there was a substantial cessation of operations as determined in accordance with section II.

C. “Date of mass layoff” means the effective date on which a layoff was determined to meet the criteria of a mass layoff, as determined in accordance with section III.

D. "Eligible employee" means an individual who is qualified to receive severance pay as determined in accordance with section IV.

E. “Facility” means one or more locations of employment that are geographically proximate and that share staff or equipment.

F.

“Gross earnings” includes all pay for regular hours, shift differentials, premiums, overtime, floating holidays, holidays, funeral leave, jury duty pay, sick pay and vacation pay earned within the last 12 months prior to the closing or mass layoff. "Gross earnings" does not include payments made under a 3rd-party benefit program, such as disability payments. “Gross earnings” also does not include payments unrelated to hours worked or use of leave time, such as taxable fringe benefits (e.g. group term life insurance or a health insurance opt-out program).

II. Determination of the Date of Termination or Relocation

If the Director determines that a termination or relocation of a covered establishment has occurred or will occur, the Director shall determine the date of termination or relocation in accordance with this section.

A. In doing so, the Director shall consider the following factors:

1. The date of the decision to close or relocate the establishment;

2. The date of any announcement to the employees that the establishment will be closed or relocated;

3. The point at which the number of employees employed at the establishment is less than 50% of the number of employees for the same time period one year earlier;

4. The point at which the number of hours worked at the establishment is less than 50% of the number of hours worked for the same time period one year earlier; and

5. The point at which any production or output measure is less than 50% compared to the production or output for the same time period one year earlier.

B. The Director may, in addition to the foregoing, consider other factors particular or unique to the operation of the establishment that affect the date of termination or relocation.

C. No one factor is presumed to be controlling. In determining the date of termination or relocation, the complete operations of the establishment may be considered. If the director's determination of a covered establishment's date of termination or relocation is based primarily on the fact that the covered establishment has on that date reduced its number of employees, number of work hours or production to less than 50% of that of the same time period one year earlier, as described in factors 3, 4 and 5 of subsection A, the director's determination is a presumption that may be overcome by evidence that the covered establishment's operations did not substantially cease on that date.

D. Layoffs that are of a seasonal nature whereby it is customary for the establishment to operate only during a regularly recurring period or periods of less than 26 weeks in a calendar year will not be primary evidence of a termination or relocation.

E. In the event that eligible employees continue to be employed for some period after the date determined by the Director, the employer is liable for severance pay calculated as of the date determined by the Director but the employer may pay the severance within one regular pay period after the eligible employee's last full day of work, notwithstanding any other provisions of law.

III. Determination of the Date of Mass Layoff

When a layoff of any duration occurs that results in an employment loss of at least (1) thirty-three percent of the employees and at least 50 employees or (2) five hundred employees, the person or persons initiating the layoff must notify the Director consistent with section IV, below, and §625-B (6).

If the Director determines that a mass layoff at a covered establishment has occurred, the Director shall determine the effective date of mass layoff in accordance with this section.

A. In doing so, the Director shall consider the following factors:

The expected length of the layoff and the basis for that expectation;

The earliest effective date of any layoff within the last 12 months;

Whether employees have been recalled and how many have been recalled 6 months after the last date on which laid off employees worked;

The number of employees laid off and the percentage of employees laid off and retained;

B. The Director may, in addition to the foregoing, consider other factors particular or unique to the operation of the establishment that affect the date of mass layoff.

C. No one factor is presumed to be controlling.

D. Layoffs that are of a seasonal nature whereby it is customary for the establishment to operate only during a regularly recurring period or periods of less than 26 weeks in a calendar year will not be primary evidence of a mass layoff.

E. Employees employed by a temporary or staffing agency which does not directly or indirectly operate the covered establishment do not experience an employment loss at a covered establishment as long as the employee remains employed by the temporary or staffing agency.

F. If the Director determines that a mass layoff has occurred at a covered establishment, an employer is liable to eligible employees of the covered establishment for severance pay at the rate of one week's pay for each year, and partial pay for any partial year, from the last full month of employment by the employee in that establishment. The severance pay to eligible employees is in addition to any final wage payment to the employee and must be paid within one regular pay period after the employee's last full day of work, notwithstanding any other provisions of law. Failure to provide severance pay constitutes a violation of §625-B, and pursuant to §625-B(9), may subject a person to penalties as established in that section.

IV. Notice

All notices required by 26 MRSA §625-B must be provided to the Director. Notice to other MDOL employees, even if required by state or federal statute, does not constitute sufficient notice under §625-B. Employers may provide the Director a copy of any WARN notice, but all employers must also provide sufficient notice under §625-B and this section.

Notice of a mass layoff, including notice provided pursuant to section III of these rules, or a closure must include the following:

The name of each affected employee;

Contact information for each affected employee, including phone number, email address and home address, to the extent known;

Each affected employee’s job title, date of hire, length of employment, work location, and most recent rate of pay;

The anticipated last date of work for each affected employee;

The work location or locations affected by the mass layoff or closure; and

The total number of employees employed at the covered establishment during the 12 months prior to the notice.

If more than 90 days’ notice is provided and the mass layoff or closure occurs prior to the original date in the notice but more than 90 days after notice was provided, additional formal notice is not required.

If more than 90 days have elapsed since the original date in the notice and the mass layoff or closure has not occurred, a new notice is required for any subsequent mass layoff or closure.

Employers are encouraged to notify the Director, informally, of any revised dates.

Failure to provide required notice constitutes a violation of §625-B, and pursuant to §625-B(9), may subject a person to penalties as established in that section.

V. Determination of Employee Eligibility

A. To be eligible for severance pay for the termination or relocation of a covered establishment, an employee must have worked at the establishment at some time during the 12-month period prior to the date of termination or relocation and must;

Not be covered by an express contract providing for severance pay that is equal to or greater than the severance pay under 26 MRSA §625-B;

2. Not have accepted employment at the new location;

3. Have been continuously employed at the establishment for at least three consecutive years under the current ownership;

4. Not have been terminated for cause; or

5. Not have voluntarily quit prior to the date set for cessation of activities in the initial notice by the employer.

B. An otherwise eligible employee that has been disqualified due to a termination for cause may appeal this disqualification to the Bureau. The Department of Labor, Division of Administrative Hearings will make a determination of the validity of a termination for cause under the standards for unemployment compensation set in 26 MRSA §1403, sub-§23. The employee must have exhausted all other internal or administrative appeal processes prior to filing such an appeal with the Bureau. A written appeal must be filed with the Bureau no later than 90 days following the termination for cause or 30 days after the date of termination or relocation, whichever is later.

VI. Calculation of Severance Pay

An employer terminating or relocating a covered establishment shall pay each eligible employee one-week's pay for each full year that the eligible employee has worked at the establishment regardless of prior ownership of the establishment.

In determining an employee’s “week’s pay” pursuant to §625-B(1)(H), a week may not be included in “the number of weeks in which the employee received gross earnings” if the employee’s compensation for that week consisted only of items excluded from gross earnings (see section I(F)).

C. The years worked will be calculated from the most recent date of hire or date of rehire, in case of a break in employment, to the last date the eligible employee worked at the covered establishment.

D. The employer may only discount the severance pay by any voluntary and unconditional payments made to the eligible employee, except that premiums or bonuses offered to encourage employees to maintain employment through the termination or relocation period may not be used to discount severance. The employer may discount the severance pay by any payments made under a contract that provides for severance pay.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. §625-B(8); 26 M.R.S.A. § 42.
• EFFECTIVE DATE: November 5, 2005 – filing 2005-408, major substantive
• AMENDED: March 18, 2024 – filing 2024-061
• AMENDED: 12-170 Chapter 15 page 3

Chapter 16 Rules Governing Definitions for Executive, Administrative, and Professional Exemptions from Minimum Wage and Overtime

Code Me. R. 12-170 Ch. 16 Rules Governing Definitions for Executive, Administrative, and Professional Exemptions from Minimum Wage and Overtime {#sec-12-170-ch.-16 omnilex-key=us-me-regs-official--dept-labor--12-170 Ch. 16}

Summary: The purpose of this Chapter is to define the "executive", "administrative" and "professional" minimum wage and overtime exemptions allowed for individuals who are paid on a salary basis pursuant to 26 MRSA Sec. 663 (K) and to preserve permissible deductions from salary, safe harbor, window of correction provisions and special provisions for public employees provided in federal regulations promulgated under the Fair Labor Standards Act.

I. Intent and Interpretation

A. It is the intent of these rules that any employee in a position who had the right to overtime under the U. S. Department of Labor regulations at 29 C. F. R. Part 541 in effect on August 22, 2004 will maintain that right under these rules.

B. Unless expressly provided herein, the Department, in interpreting and enforcing 26 M.R.S.A. § 664(3), will be guided by the federal regulations (29 C.F.R. Part 541 in effect on August 22, 2004) and any interpretive materials produced or used by the U.S. Department of Labor in association with these regulations. To the extent these rules conflict with the federal regulations referenced above, these rules govern.

II. Definitions

For the purpose of these regulations, the following terms will be construed as follows:

A. "Administrative": In order for an individual to be considered a bona fide administrative worker, the employee’s primary duty must consist of either (1) the performance of office or nonmanual work directly related to management policies or general business operations of the employer or the employer’s customers, or (2) the performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein, and (3) where the performance of such primary duty customarily and regularly includes the exercise of discretion and independent judgment.

B. "Bona fide" means authentic or genuine.

C. "Executive": In order for an individual to be considered a bona fide executive, the employee’s primary duty must consist of the management of the enterprise in which employed or of a customarily recognized department or subdivision thereof and includes the customary and regular direction of the work of two or more other full-time (or equivalent) employees therein.

D. “Primary Duty” means, as a general rule, the activities in which an employee spends the major part, or over 50 percent of his or her time. A determination of whether an employee has exempting activities as his or her primary duty must be based on all the facts in a particular case. The amount of time spent in the performance of those duties is a useful guide in determining the primary duty of an employee. [As an example, an employee who spends over 50 percent of his or her time in management would have management as his or her primary duty.] Time alone, however, is not the sole test. Some other pertinent factors are the relative importance of the exempting duties as compared with other types of duties, the frequency with which the employee exercises discretionary powers, the relative freedom from supervision, and the relationship between the employee’s salary and the wages paid other employees for the kind of nonexempt work performed.

E. "Professional" In order for an individual to be considered a bona fide professional, the employee’s primary duty must consist of the performance of work (1) requiring knowledge of an advanced type in a field of science or learning, or (2) work as a teacher in the activity of imparting knowledge, or (3) requiring invention, imagination, or talent in a recognized field of artistic endeavor, where the performance of such primary duty customarily and regularly includes the exercise of discretion and independent judgment.

F. "Salaried employee" means an employee who receives a predetermined fixed amount of wages that is no less than the amount required by 26 MRSA Sec. 663 (K) which is paid on a weekly or less frequent basis. Commissions or bonuses may not be used in determining the individual's predetermined amount of wages. Subject to the following exceptions, a salaried employee must receive his or her full salary for any week in which the employee performs any work without regard to the number of days or hours worked. The prohibition against deductions from pay for a salaried employee is subject to the following exceptions:

1. Deductions from pay may be made when a salaried employee is absent from work for one or more full days for personal reasons, other than sickness or disability. [Example: if an employee is absent for two full days to handle personal affairs, the employee's salaried status will not be affected if deductions are made from the salary for two full-day absences. However, if an exempt employee is absent for one and a half days for personal reasons, the employer can deduct only for the one full-day absence.]

2. Deductions from pay may be made for absences of one or more full days occasioned by sickness or disability (including work-related accidents) if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by such sickness or disability. The employer is not required to pay any portion of the employee’s salary for full-day absences for which the employee receives compensation under the plan, policy or practice. Deductions for such full-day absences also may be made before the employee has qualified under the plan, policy or practice, and after the employee has exhausted the leave allowance thereunder. [Example: if an employer maintains a short-term disability insurance plan providing salary replacement for 12 weeks starting on the fourth day of absence, the employer may make deductions from pay for the three days of absence before the employee qualifies for benefits under the plan; for the twelve weeks in which the employee receives salary replacement benefits under the plan; and for absences after the employee has exhausted the 12 weeks of salary replacement benefits. Similarly, an employer may make deductions from pay for absences of one or more full days if salary replacement benefits are provided in accordance with State workers’ compensation law.]

3. An employer may not make deductions from pay for absences of a salaried employee occasioned by jury duty, attendance as a witness or temporary military leave. However, the employer may offset any amounts received by an employee as jury fees, witness fees or military pay for a particular week against the salary due for that particular week without loss of the exemption.

4. Deductions from pay of salaried employees may be made for penalties imposed in good faith for infractions of safety rules of major significance. Safety rules of major significance include those relating to the prevention of serious danger in the workplace or to other employees, such as rules prohibiting smoking in explosive plants, oil refineries and coal mines.

5. Deductions from pay of salaried employees may be made for unpaid disciplinary suspensions of one or more full days imposed in good faith for infractions of workplace conduct rules. Such suspensions must be imposed pursuant to a written policy applicable to all employees. [Example: an employer may suspend a salaried employee without pay for three days for violating a generally applicable written policy prohibiting sexual harassment. Similarly, an employer may suspend a salaried employee without pay for twelve days for violating a generally applicable written policy prohibiting workplace violence.]

6. An employer is not required to pay the full salary in the initial or terminal week of employment. Rather, an employer may pay a proportionate part of an employee's full salary for the time actually worked in the first and last week of employment. In such weeks, the payment of an hourly or daily equivalent of the employee's full salary for the time actually worked will meet the requirement. Employees are not paid on a salary basis within the meaning of these regulations if they are employed occasionally for a few days, and the employer pays them a proportionate part of the weekly salary when so employed.

7. An employer is not required to pay the full salary for weeks in which a salaried employee takes unpaid leave under the Family and Medical Leave Act. Rather, when an exempt employee takes unpaid leave under the Family and Medical Leave Act, an employer may pay a proportionate part of the full salary for time actually worked. [Example: if an employee who normally works 40 hours per week uses four hours of unpaid leave under the Family and Medical Leave Act, the employer could deduct 10 percent of the employee's normal salary that week.]

8. When calculating the amount of a deduction from pay allowed under paragraph (1)-(7) above, the employer may use the hourly or daily equivalent of the employee's full weekly salary or any other amount proportional to the time actually missed by the employee. A deduction from pay as a penalty for violations of major safety rules under paragraph (4) may be made in any amount.

A salaried employee will be considered to be paid on a "salary basis." Additional compensation besides the salary (minimum guarantee plus extras) is not inconsistent with the salary basis of payment. Such arrangements are subject to the exceptions in paragraphs 1 through 8 above.

III. Fee Basis Payment

The requirements for exemption as a professional or administrative employee may be met by an employee who is compensated on a fee basis as well as by one who is paid on a salary basis. Such arrangements are characterized by the payment of an agreed sum for a single job regardless of the time required for its completion. These payments resemble piecework payments with the important distinction that generally speaking a fee payment is made for the kind of job which is unique rather than for a series of jobs which are repeated an indefinite number of times and for which payment on an identical basis is made over and over again. Payments based on the number of hours or days worked and not on the accomplishment of a given single task are not considered payments on a fee basis.

A. The adequacy of a fee payment. In determining whether payment is at the rate consistent with these rules, the amount paid to the employee will be tested by reference to a standard workweek of 40 hours. Thus compliance will be tested in each case of a fee payment by determining whether the payment is at a rate that would amount to at least that set in 26 MRSA Sec. 663 (K) if 40 hours were worked.

IV. Effect of Improper Deductions from Salary

An employer who makes improper deductions from salary shall lose the exemption if the facts demonstrate that the employer did not intend to pay employees on a salary basis. An actual practice of making improper deductions demonstrates that the employer did not intend to pay employees on a salary basis. The factors to consider when determining whether an employer has an actual practice of making improper deductions include, but are not limited to: the number of improper deductions, particularly as compared to the number of employee infractions warranting discipline; the time period during which the employer made improper deductions; the number and geographic location of employees whose salary was improperly reduced; the number and geographic location of managers responsible for taking the improper deductions; and whether the employer has a clearly communicated policy permitting or prohibiting improper deductions.

A. If the facts demonstrate that the employer has an actual practice of making improper deductions, then the exemption is lost during the time period in which the improper deductions were made for employees in the same job classification working for the same managers responsible for the actual improper deductions. Employees in different job classifications or who work for different managers do not lose their status as exempt employees. [Example: if a manager at a company facility routinely docks the pay of engineers at that facility for partial-day absences, then all engineers at that facility whose pay could have been improperly docked by the manager would lose the exemption; engineers at other facilities or working for other managers, however, would remain exempt.]

B. Improper deductions that are either isolated or inadvertent will not result in loss of the exemption for any employees subject to such improper deductions, if the employer reimburses the employees for such improper deductions.

C. If an employer has a clearly communicated policy that prohibits the improper pay deductions specified in paragraph IV (A) and includes a complaint mechanism, reimburses employees for any improper deductions and makes a good faith commitment to comply in the future, then such employer will not lose the exemption for any employees unless the employer willfully violates the policy by continuing to make improper deductions after receiving employee complaints. If an employer fails to reimburse employees for any improper deductions or continues to make improper deductions after receiving employee complaints, then the exemption is lost during the time period in which the improper deductions were made for employees in the same job classifications working for the same managers responsible for the actual improper deductions. The best evidence of a clearly communicated policy is a written policy that was distributed to employees prior to the improper pay deductions by, for example, providing a copy of the policy to employees at the time of hire, publishing the policy in an employee handbook or publishing the policy on the employer's Intranet.

This section shall not be construed in an unduly technical manner so as to defeat the exemption.

V. Employees of Public Agencies

An employee of a public agency who otherwise meets the salary basis requirements of sections II and III of these rules shall not be disqualified from exemption as an administrative, executive, professional or computer professional employee on the basis that such employee is paid according to a pay system established by statute, ordinance or regulation, or by a policy or practice established pursuant to principles of accountability, under which the employee accrues personal leave and sick leave and which requires the public agency employee's pay to be reduced or such employee to be placed on leave without pay for absences for personal reasons or because of illness or injury of less than one work-day when accrued leave is not used by an employee because:

A. Permission for its use has not been sought or has been sought and denied;

B. Accrued leave has been exhausted; or

C. The employee chooses to use leave without pay.

Deductions from the pay of an employee of a public agency for absences due to a budget-required furlough shall not disqualify the employee from being paid on a salary basis except in the workweek in which the furlough occurs and for which the employee's pay is accordingly reduced.

VI. Special Cases

A. Highly Skilled Computer Employees. Highly skilled employees who have achieved a level of proficiency in the theoretical and practical application of a body of highly-specialized knowledge in computer systems analysis, programming, and software engineering are exempt as professionals where the employee’s primary duty involves;

1. The application of systems analysis techniques and procedures, including consulting with users, to determine software, hardware, or system functional specifications,

2. The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on or related to user or system design specifications,

3. The design, documentation, testing, creation or modification of computer programs related to machine operating systems, or

4. A combination of the aforementioned duties, the performance of which requires the same level of skills.

B. Teachers. An employee whose primary duty consists of work as a teacher in the activity of imparting knowledge is exempted if the individual is both employed and engaged as a teacher. The primary duty of an employee exempted as a teacher must be that of activity in the field of teaching. Mere certification by the State or employment in a school will not suffice to qualify an individual for exemption within the scope these rules if the individual is not in fact both employed and engaged as a teacher.

C. Licensed Practical Nurses. Licensed practical nurses do not qualify as exempt learned professionals because possession of a specialized advanced academic degree is not a standard prerequisite for entry into the occupation.

D. Trainees. The executive, administrative, professional, and computer employee exemptions do not apply to employees training for employment in an executive, administrative, professional, or computer employee capacity who are not actually performing the duties of an executive, administrative, professional, or computer employee.

E. Public Safety & Health Workers. Exemptions in this chapter do not apply to police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees, regardless of rank or pay level, who’s primary duty consists of work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. §663(K)
• EFFECTIVE DATE: June 29, 2005 – filing 2005-252
• CORRECTIONS: September 27, 2005 – Section VI(A)
• CORRECTIONS: APAO WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK: July 17, 2025

Chapter 17 Rules Regarding Proof of Ownership by Employers Employing Foreign Laborers to Operate Logging Equipment

Code Me. R. 12-170 Ch. 17 Rules Regarding Proof of Ownership by Employers Employing Foreign Laborers to Operate Logging Equipment {#sec-12-170-ch.-17 omnilex-key=us-me-regs-official--dept-labor--12-170 Ch. 17}

SUMMARY: The purpose of this Chapter is to provide standards and a reporting methodology for employers engaged in logging that hire foreign laborers under the H2-B program to show compliance with the ownership requirements under 26 MRSA §872.

SECTION I. DEFINITIONS

A. Authorizing statute means 26 MRSA §872.

B. Covered equipment means logging equipment used by a foreign laborer in the course of their employment for which there is no prevailing rate established by the U. S. Department of Labor.

C. Covered employer means an employer that hires a foreign laborer in a logging occupation.

D. Department means the Maine Department of Labor, Bureau of Labor Standards.

E. Director means the Director of the Bureau of Labor Standards, Maine Department of Labor or the director’s designee.

F. Foreign laborer means a worker granted permission to enter the United States and work temporarily in a logging occupation under the provisions of 8 U. S. Code, Section 1101(a)(15)(H)(ii)(b). [Note: otherwise known as H2-B]

G. Logging equipment means equipment used directly in the cutting and transporting of logs to the roadside and the production of wood chips in the field. Equipment used solely for construction of logging roads, for transporting logs or other wood products off-site or on roadways or in ancillary activities such as recordkeeping, equipment repair, etc. is not logging equipment as used in these rules.

H. Proof of ownership means a receipt or other documentation of the purchase or lease of covered equipment and documentation of the payment of any tax assessed on the covered equipment under 36 MRSA, chapter 105 for the year in which any foreign laborer is employed to operate the covered equipment. (see Section IV)

SECTION II. NOTICE OF CERTIFICATION

A covered employer receiving certification from the U. S. Department of Labor (US DoL) to hire foreign laborers to operate logging equipment shall notify the Director of such approval within seven days of receipt. The notice must include a copy of the US DoL certification document(s). (Note: Correspondence should be directed to Foreign Labor Certification, ME Department of Labor, Bureau of Labor Standards, State House Station #45, Augusta, Maine 04333-0045.)

SECTION III. NOTICE OF HIRE AND PROOF OF OWNERSHIP

A. A covered employer shall notify the Director of the hiring of any foreign laborer within 21 days of the commitment to hire the worker.

B. The notice must be provided on a form furnished by the Department. The form will, at a minimum, include the following information:

1. Name of worker

2. Occupation of worker

3. Date of hire

4. Date employment started or is to start

5. Date employment is scheduled to end (employer may estimate)

6. List by serial number each piece of covered equipment the worker will operate, and

7. Ownership status of each piece of covered equipment so listed.

C. The form will require that the employer or a representative of the employer certify that any information provided on the form and any additional documents provided are true and accurate. The failure to provide full and accurate disclosure constitutes a civil violation pursuant to 26 MRSA §872. A false statement may also be subject to criminal prosecution under applicable statutes, including but not limited to 17-A MRSA §453, which governs unsworn falsification.

D. For each piece of covered equipment listed in part 7 above which the employer claims ownership, the employer shall provide proof of ownership.

E. In accordance with the authorizing statute, a covered employer must claim ownership for at least one piece of covered equipment for every two foreign workers employed to operate such equipment.

F. In calculating the number of proofs of ownership to be provided when an odd number of foreign workers are employed to operate the covered equipment, that number must be one-half the number of relevant foreign workers plus 0.5. [Example: A covered employer hiring five foreign laborers as feller-buncher operators will need to provide proof of ownership for at least three feller-buncher machines.]

G. The covered equipment listed in accordance with B(6) above should include all equipment that the worker will use for more than one-third of the worker’s employment.

SECTION IV. LEASING AND TAX CONSIDERATIONS

A. A lease with a business entity engaged in the business of providing logging equipment under lease will be considered ownership under these rules.

1. A rental agreement of less than three weeks to accommodate short-term needs such as maintenance or repair of covered equipment reported under Section III (B) is allowed and the employer does not need to report such agreements to the department. Use of a rental agreement beyond three weeks must be reported.

2. Any lease, rent or pay-for-use agreement with an owner-operator will not be considered a lease as described under sub-Section A above.

B. If at the time the notice outlined in Section III is filed the employer has not paid the tax for the current tax year because the tax had not been assessed or was not yet due, the employer shall provide documentation that demonstrates that the employer has paid the tax in the past and will pay any taxes due on the subject equipment. This documentation may include proof of taxes paid in a prior period, reports filed with the taxing authority, and assessments received for the current period. The employer shall provide proof of payment of the taxes when such taxes are paid.

---

EFFECTIVE DATE: October 1, 2006 covering all new hires made based on applications for alien labor certification filed through the department on or after that date.

FILED WITH THE SECRETARY OF STATE:

May 23, 2006 – filing 2006-226

12-170 Chapter 17 page 3

Chapter 18 Rules Governing Earned Paid Leave

Code Me. R. 12-170 Ch. 18 Rules Governing Earned Paid Leave {#sec-12-170-ch.-18 omnilex-key=us-me-regs-official--dept-labor--12-170 Ch. 18}

Summary: The purpose of this chapter is to provide definitions and procedures for implementing earned paid leave for certain employees pursuant to 26 MRS §637.

Section I: Application

These rules apply to employers that employ more than 10 employees in the usual and regular course of business for more than 120 days in any calendar year, with certain exceptions. Covered employers shall permit each employee to accrue earned paid leave based on the employee's base rate of pay as defined in Section II.

Section II: Definitions

As set forth in 26 MRS §637 or in this chapter, the following terms have the following meanings.

“120 days” for purposes of 26 MRS §637(2) and (3) means 120 calendar days (not business days).

“Base rate of pay.” The base rate of pay for purposes of earned paid leave required by this statute is identical to the regular rate of pay defined in section 26 MRS §664(3). The base rate will be calculated by reference to the week immediately prior to the leave taken.

"Bureau" means the Bureau of Labor Standards, within the Department of Labor.

“Calendar year” means January 1 through December 31 of any year.

“Covered Employee.” A covered employee is a person engaged in employment as defined in the Employment Security Act , 26 MRS §1043(11) for an employer as defined by 26 MRS §1043(9), except as otherwise set forth herein or in the Act Authorizing Earned Employee Leave. A covered employee may include a person who is employed full-time, part-time or per diem.

“Covered Employer.” A covered employer is an employer as defined by 26 MRS §1043(9) who employs more than 10 covered employees in the usual and regular course of business for more than 120 days in any calendar year.

“Emergency” and “sudden necessity,” which terms may be used interchangeably herein, mean a situation in which the need for leave is not reasonably foreseeable.

"Employer" has the same meaning as in 26 MRS §1043(9).

"Employment" has the same meaning as in 26 MRS §1043(11), but does not include employment in a seasonal industry as defined in 26 MRS §1251.

“Employment in a seasonal industry” means employment in an industry determined by the Unemployment Insurance Commission to be seasonal pursuant to 26 MRS §1251 and employment for an employer who has submitted the required report to the Bureau of Unemployment Compensation setting forth the seasonal period for the applicable year.

“Hours Worked.” For purposes of 26 MRS §637(3), for covered employees defined as exempt by federal regulations (29 CFR §541), in the absence of any other record, the presumption is that hours worked by such employees are 40 hours per week.

“One-year period” means any period of 365 (366 in a leap year) consecutive days.

“Start of Employment” means the first day the employee performed work for the employer.

“Year of employment” means a period of 365 (366 in a leap year) consecutive days beginning with the employee’s start of employment , or any subsequent period of 365 (366 in a leap year) consecutive days beginning on one of the following:

i. the anniversary date of the employee’s start of employment; or

ii. such date as the employer may assign, provided that no loss of earned paid leave results for any employee not using the date identified in i. above.

Section III: Accrual

An employee is entitled to earn one hour of earned paid leave from a single employer for every 40 hours worked, up to 40 hours in one year of employment.

Accrual of earned paid leave begins at the start of employment, but the employer is not required to permit use of the leave before the employee has been employed by that employer for 120 days during a one-year period.

No more than forty hours of earned paid leave is required to be available for use by a covered employee during any one year period as established by section II. L. herein.

Covered Employees with accrued and unused hours of earned paid leave from the previous year of employment will have those hours available for use by the employee in the current year of employment, up to a maximum of forty hours. Hours are only required to continue to accrue up to forty hours in the current year of employment.

Whenever the terms of employment or the employer’s established practice includes provisions to pay the balance of unused earned paid leave at the time of separation, earned paid leave on cessation of employment has the same status as wages earned in accordance with 26 MRS §626.

An employee who returns to work within a one-year period of the last date of previous employment with the same employer is entitled to any unused balance of earned paid leave that was not paid out at the time of separation of employment.

For the sole purpose of determining the accrual of earned paid leave for construction workers, the term “employer” includes all covered employers bound by a collective bargaining agreement negotiated by a multiemployer bargaining unit.

Section IV: Greater Benefits and Exception

A. Nothing in this chapter may be construed to affect an employer’s obligation to comply with any collective bargaining agreement or employee benefit plan that provides greater earned paid leave rights to employees than the rights provided by 26 MRS §637.

B. 26 MRS §637 does not apply to an employee covered by a collective bargaining agreement during the period between January 1, 2021 and the expiration of the agreement.

Section V: Notice and Use of Leave

Reasonable Notice. Absent an emergency, illness or other sudden necessity for taking earned paid leave, the employer may have a written policy requiring up to 4 weeks’ notice to the employer of the employee’s intent to use earned leave.

Notice required for an emergency, illness or other sudden necessity must be reasonable under the circumstances, recognizing that advance notice may not be feasible. In such circumstances, a covered employee shall make a good faith effort to provide as much notice as is feasible under the circumstances to the employer of the employee’s intent to use earned paid leave.

Scheduling of Leave. The Employer may place reasonable limits on the scheduling of earned paid leave for reasons other than emergency, illness or other sudden necessity, to prevent undue hardship on the employer as reasonably determined by the employer. Undue hardship means a significant impact on the operation of the business or significant expenses, considering the financial resources of the employer, the size of the workforce, and the nature of the industry.

Employees may use earned paid leave in increments of at least one hour, unless the employer chooses to allow smaller increments.

The employer cannot require the employee to use accrued earned paid leave when the employer causes the employee to be unable to perform their job, such as by closing the business or cancelling a shift.

An employer shall not deny an employee the right to use paid leave available for use by that employee in accordance with the conditions of this section.

Section VI: Penalties

A. Penalties for violations of this section are the same as those provided in section 26 MRS §53. Each denial of paid leave for each affected covered employee in violation of 26 MRS §637 and this Rule is a separate violation.

History

• STATUTORY AUTHORITY: 26 MRS §42 and §637
• EFFECTIVE DATE: January 1, 2021- filing 2020-203

Chapter 19 Rules Governing Apprenticeship in Construction of Energy Generation Facilities

Code Me. R. 12-170 Ch. 19 Rules Governing Apprenticeship in Construction of Energy Generation Facilities {#sec-12-170-ch.-19 omnilex-key=us-me-regs-official--dept-labor--12-170 Ch. 19}

Summary: The purpose of this chapter is to provide definitions and procedures for implementing apprenticeship standards in the construction of certain energy generation facilities persuant to 26 MRS ch. 43 §3501 and §3502.

Section I: Application

These rules apply to construction employers who are engaged in the construction of a generation facility as defined in Section II.

Section II: Definitions

As set forth in 26 MRS §3501 or in this chapter, the following terms have the following meanings.

“Qualified Apprentice.” Qualified Apprentice means a person in an apprentice program recognized by the United States Department of Labor or by the Maine Department of Labor and directly related to the work being performed.

“Apprenticeable Occupation.” Apprenticeable Occupation has the same meaning as in 26 MRS §3201(2).

“Available.” Available means either otherwise not fully employed or willing to consider an offer of employment during the phase of construction of a generation facility in which the relevant occupational skills are needed.

“Bureau.” Bureau means the Bureau of Labor Standards within the Department of Labor.

“Construction of a generation facility.” Construction of a generation facility means every phase of an operation to physically construct a facility and includes preparation of the site, erecting fencing and other protective structures to secure the site, maintenance and transport of materials on the site, and removal of equipment and debris when the operation is completed.

“Director.” Director means the Director of the Bureau of Labor Standards.

“Person constructing a generation facility.” Person constructing a generation facility means a general contractor or subcontractor, or other entity who has a significant measure of control over the construction of a generation facility .

“Persons employed in the construction.” Persons Employed in the Construction means all persons employed in an apprenticeable occupation during any phase or time period of an operation to construct a generation facility, or during the entire duration of such an operation, or during some combination of those periods of time. A phase or time period of the operation may include an employer’s established pay period.

Section III: Availability of Apprentices

In order to claim that an insufficient number of qualified apprentices were available to meet the required percentage, an employer must show that it made reasonable efforts to find and employ them. This may include evidence of having contacted or attempted to contact the Maine Apprenticeship Program, sponsors of apprenticeship training programs such as labor organizations and employers with a presence in Maine, or other appropriate sources.

i. A worker’s apparent or actual disability may not be offered as a reason for determining that a sufficient number of qualified apprentices were not available.

Section IV: Employer Self-Monitoring and Reporting

A construction employer must demonstrate compliance with the statute by submitting to the Bureau a plan for locating and employing a sufficient number of qualified apprentices.

The plan must be submitted prior to starting the construction project or prior to starting each phase of the construction project.

When each phase of the construction project is completed, the employer must submit to the Bureau an interim report disclosing the results of its efforts to employ qualified apprentices including a clear explanation if they failed to hire a sufficient number of qualified apprentices during that phase of the project.

When the entire project is completed, the employer must submit a final report also including a clear explanation if they failed to hire a sufficient number of qualified apprentices during the entire project.

Section V: Enforcement

Enforcement of these rules and the laws upon which the rules are based will be the responsibility of the Bureau, under the direction of the Director.

Each contractor and sub‑contractor shall have payroll records available to a Bureau representative on each site covered by this statute.

i. The records must be current to within three days of the latest pay period that was paid by the contractor or sub‑contractor.

ii. The records must contain the name, trade or job title, and classification as an apprentice or otherwise, for each of that employer's workers that worked on the site for each payroll period.

iii. A contractor or subcontractor may comply with this provision by keeping the records for a site at a location within 10 miles of the site while the project is active, and reasonably accessible thereafter.

iv. These records must be retained, preserved, and open to inspection by the Bureau for at least three years following the completion of the project.

Each day a sufficient number of apprentices are not employed in accordance with the law and these rules is a separate violation.

History

• STATUTORY AUTHORITY: 26 MRS §42 and §3502
• EFFECTIVE DATE: January 15, 2022 – filing 2022-006

12-172 Bureau of Unemployment Compensation

Chapter 1 Definitions

Code Me. R. 12-172 Ch. 1 Definitions {#sec-12-172-ch.-1 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 1}

SUMMARY: This chapter contains definitions of certain terms as used in the Employment Security Law.

1. Meaning of Terms. Unless the context otherwise requires, terms used in regulations, interpretations, forms, and other official pronouncements issued by the commission or bureau shall be construed in the sense in which they are defined in the law, or in this or other regulations of the commission.

A. "Pay period" means that period of time during which wages payable on any day were earned.

B. "Wages payable" means wages earned, including wages earned and paid as well as wages earned and unpaid.

C. 1. With respect to determinations made under section 1191, subsections 1, 2, 3, 5, 6, 6-A, 6-B, 6-C, 6-D, 8, 9, and 11 of section 1192, and subsection 6 of section 1193 of the Employment Security Law, "interested party" means the claimant and, where appropriate, the deputy.

2. For the purposes of all other determinations made under sections 1192, 1193, and 1194 of the Employment Security Law, "interested party" means the claimant, the claimant's most recent employer, the most recent chargeable employer prior to the claimant's filing of a claim for benefits, and the deputy, as appropriate.

3. With respect to employer liability and assessment determinations made under the Employment Security Law, "interested party" means the employing unit (including predecessors under Chapter 2 (13)(I), the employer, the Unemployment Compensation Tax Division of the Maine Department of Labor, and, where appropriate, the claimant(s) and/or putative employee(s).

D. "Week" means the calendar week commencing with Sunday and ending with the following Saturday. A week occurring partly within and partly without a benefit year or seasonal period shall be deemed to be entirely in the benefit year or seasonal period in which there are 4 or more days of such week.

E. "Public employment office" is prescribed to mean any office or approved itinerant station of the bureau.

F. For the purpose of administration of section 1221, subsection 3, paragraph C, of the Employment Security Law, 5 consecutive weeks for any worker shall be deemed to be the 5 consecutive calendar weeks starting with the first week in which services were performed by such worker and during which the worker's employment relationship with the employer is not affirmatively terminated.

G. For the purpose of subsection 5 of section 1193 of the Employment Security Law, monthly payments will be converted to a weekly amount by obtaining 23% of the monthly payment.

H. For the purpose of subsections 1, 2, and 3 of section 1193 of the Employment Security Law, "weekly benefit amount" means that in effect at the time a claimant files his or her first continued claim subsequent to the action which resulted in disqualification.

I. For the purpose of subsection 3 of section 1193 of the Employment Security Law "the acceptance of a referral to a suitable job opportunity" means that an individual receiving such referral shall contact the employing unit to whom he or she is referred for an interview with respect to a job opening.

J. For the purposes of section 1043, subsection 17, paragraphs A and B, and section 1191, subsection 3, of the Employment Security Law remuneration for services performed on a holiday shall not be deemed to be "holiday pay".

K. For the purpose of paragraph C of subsection 4 of section 1193 of the Employment Security Law a "full week" of employment means the normal work period scheduled during the week for the employing unit.

L. For the purpose of paragraph J of subsection 1 of section 1195 of the Employment Security Law "regular benefits" does not include "additional benefits."

M. "Additional benefits" means benefits payable to exhaustees by reason of conditions of high unemployment or by reason of other special factors under the provision of any state law.

N. 1. For the purpose of administration of subsection 3 of section 1192 and subsection 3 of section 1193 of the Employment Security Law, "prorated benefits" means, for individuals who are able to work full time, 1/7 of the claimant's weekly benefit amount, for each day during the week that he or she is able and available, the sum of which, if not a whole dollar amount, shall be rounded to the next lower full dollar amount.

2. For the purpose of administration of subsection 3 of section 1192 and subsection 3 of section 1193 of the Employment Security Law, "prorated benefits" means, for individuals who are not able to work full time, that portion of the claimant's weekly benefit amount which bears the same ratio to the full weekly benefit amount as the amount of the work week during which the claimant is able and available for work bears to the normal or standard work week for the claimant's occupation.

O. For the purpose of paragraph A of subsection 1 of section 1193 of the Employment Security Law, "permanent full-time" means the number of hours or days per week currently established by schedule, custom, or otherwise as constituting a week of full-time work for the kind of service an individual performs for an employing unit.

P. For the purpose of paragraph A (1) of subsection 1 of section 1193 and paragraph B (5) of subsection 3 of section 1193 of the Employment Security Law, immediate family" means the claimant's spouse, children, parents, step-parents, brothers or sisters, or relatives who have been acting in the capacity of a parent of either the claimant or spouse.

Q. For all purposes, except subsection 6 of section 1191, of the Employment Security Law, "full-time work" signifies the normal or standard period of labor per day or per week of the employing unit for the kind of work performed, but in any case means work of not less than 35 hours per week. For the purposes of paragraph B of subsection 17 of Section 1043, "full-time work" includes any one or more holidays for which remuneration at the individual's average rate of pay has been received by him or her.

R. For the purpose of subsection 29 of section 1043 of the Employment Security Law, "licensed by the state" means the institution is approved, licensed or issued a permit to operate as a school by the Maine Department of Education or government agency that is authorized within the State to approve, license or issue a permit for the operation of a school.

S. Approved Training.

For the purposes of subsections 6, 6-A, 6-B, 6-C, and 6-D, of section 1192 of the Employment Security Law, "approved training" shall mean:

1. Training opportunities by eligible individuals pursuant to Section 302 of the Job Training Partnership Act;

2. Training received by otherwise eligible individuals which training is approved under United States Trade Act of 1974, Section 236(a)(1);

3. Training opportunities available through United States Public Law 97-300; and

4. Training received by otherwise eligible individuals, including dislocated workers as defined in section 1196 of the Employment Security Law, which training is or has been approved by the Commission under Chapter 24 of these rules.

T. Good Cause. For the purposes of the Employment Security Law and regulations, the Commission determines that "good cause" shall be when the unemployed individual is ill, or when illness of the unemployed individual's spouse or children, or parents, or stepparents, brothers or sisters, or relatives who have been acting in the capacity of a parent of either the claimant or spouse, require his or her presence; or he or she is in attendance at a funeral of such relative; or required by religious conviction to observe a religious holiday; or required by law to perform either a military or civil duty; or other cause of a necessitous and compelling nature. Incarceration as a result of a conviction for a felony or misdemeanor is excluded from the definition of "good cause."

U. For the purposes of Subsection 3 of Section 1193 of the Employment Security Law, the Bureau shall apply the same standards for "necessitous and compelling nature" as it applies under the definition of "good cause" defined in Chapter 1, Section l(T), of these rules.

V. For the purposes of Chapter 3 Section 1(I) of these rules and subsection 2 of section 1192 of the Employment Security Law, "register for work" means the completion of a form approved by the bureau on which is furnished information which will enable the bureau to provide the individual referrals to potential job opportunities.

W. For the purposes of paragraph A of subsection 1 of section 1193 of the Employment Security Law, "domestic abuse" shall be as determined under paragraph 7-B of section 1043 of that law by a preponderance of the evidence and shall not require that a civil or criminal complaint be filed by the claimant or that a criminal conviction be made by a court.

X. Misconduct. For the purposes of subsection 2 of section 1193 and subsection 3 of section 1221 of the Employment Security Law and of Chapter 18 of these rules, when a claimant has been discharged either for conviction of a felony or misdemeanor in connection with his or her work or for absence from work for more than 2 workdays due to incarceration for conviction of a criminal offense, proof of such conviction or such absence shall be deemed proof of misconduct.

Y. For the purposes of subsection 3 of section 1192 and paragraph B (5) of subsection 3 of section 1193 of the Employment Security Law, "parental obligation" means the obligation to care for the claimant's children.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. Sec. 1082
• EFFECTIVE DATE: July 2, 1978 (Filed 10-6-78)
• AMENDED: October 8, 1979 - Sec. 1.1(N), 1.1(Q), 1.l(R)
• AMENDED: August 10, 1981 - Sec.1.1, 1.1(E), 1.1(S)
• AMENDED: March 14, 1983 - Sec. 1.1 (S) (EMERGENCY)
• AMENDED: August 2, 1983 - Sec. 1.1 (S)
• AMENDED: November 20, 1984 Sec. 1.1 (T & U)
• AMENDED: March 27, 1987 Sec. 1.1 (P)(T)(V)
• AMENDED: October 2, 1989 - Sec. 1 (N)(S)
• AMENDED: September 6, 1993
• AMENDED: May 30, 2000
• NON-SUBSTANTIVE CORRECTIONS: December 14, 2000 - punctuation only
• NON-SUBSTANTIVE EDIT: October 30, 2024 – Rule header on page 1 amended to identify the agency unit of jurisdiction
• NON-SUBSTANTIVE EDIT: 12-172 Chapter 1 page 5

Chapter 2 Employer Notices, Records, Contributions and Reimbursement Payments and Reports

Code Me. R. 12-172 Ch. 2 Employer Notices, Records, Contribution and Reimbursement Payments and Reports {#sec-12-172-ch.-2 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 2}

SUMMARY: This chapter establishes procedures to be followed by employers in: posting required notices; maintaining records; payment of monies due, including cash value of board and lodging; submitting required reports including contributions, payrolls, change in employer status, separation information on former employees; and details on refusal of job offers and recalls to employment.

1. Posting notices to workers. Every employer shall post and maintain such notices to its workers as the Commissioner shall from time to time require. Such notices shall be of such form and design and in such numbers as the Bureau may determine to be necessary and shall be posted in conspicuous places near the actual locations where workers' services are performed. No such notices shall be posted by any person or employing unit to whom an employer number has not been assigned by the Bureau or who has ceased to be an employer subject to the Employment Security Law.

2. Records

A. Each employing unit shall preserve existing records (which indicate date hereinafter set forth) with respect to employment performed in its service and shall establish, maintain and preserve records that show the information hereinafter set forth with respect to workers in employment on and after the effective date of this rule:

1. For each pay period:

a. The beginning and ending dates of such periods,

b. The total wages paid for employment in such pay period,

c. The week during which, on any part of a day, there were one (1) or more workers in employment.

2. For each worker: his or her given name, middle name or initial, surname and Social Security Number, wages, salary and basis of pay during period, and period of employment.

3. Special payments of any kind, including but not limited to annual bonuses, gifts, prizes, and other awards, should show separately:

a. Money payments,

b. Reasonable cash value of other remuneration,

c. The nature of such payments,

d. The calendar quarter during which such services were performed.

4. Each employer shall keep payroll records that provide information for each of its workers including but not limited to the following:

a. Wages earned weekly,

b. Wages earned quarterly,

c. Whether any week was, in fact, a week of less than full-time work,

d. Time lost, if any, by each worker due to his or her unavailability for work.

B. The records required by this section shall be maintained for a period of at least four (4) years after the calendar year for which the contributions to which they relate become due, or the date upon which the contributions were paid, whichever is the later.

3. Contributions

A. Contributions shall be due and shall be paid on or before the last day of the month following the close of the quarter for which contributions have been accrued. If the last day of such month falls on a non-work day for the Bureau, then any contribution reaching the office of the Bureau, or any duly constituted agent of the Bureau, on the next working day shall be deemed to have been received timely.

Payments made by mail shall be deemed to have been made timely if postmarked not later than midnight of the due date. If the due date falls on a Sunday or a legal holiday, payment shall be deemed to have been made timely if postmarked not later than midnight of the next business day.

B. Each quarterly payment shall include contributions with respect to wages for employment paid within the calendar quarter. For purposes of calculating the amount of contributions due, "wages for employment" shall not include any amounts received by proprietors or partners but shall include amounts received by corporate officers, including officers of subchapter "S" corporations, as remuneration for services, as provided in section 14 of this chapter.

C. The first contribution payment of any employing unit becoming an employer during the calendar year shall become due and be paid on or before the last day of the month following the close of the calendar quarter in which such employing unit becomes an employer and shall include contributions with respect to all wages for employment paid on and after January 1 of such year up to and including all pay days within the calendar quarter in which the employer became subject. Contribu­tions paid under this section shall be subject to the same time limits as are provided in subsection (A).

D. Employer payments will be applied in the following way:

1. Payments submitted with the employer’s contribution and wage report will be applied to the amounts due for that quarter in the following order: Competitive Skills Scholarship Fund contribution first, contributions second, interest third, payroll penalty fourth, and contribution penalty last.

2. All other payments received will be applied in the following way:

a. Beginning with the oldest quarter for which any amount remains outstanding, the outstanding contributions shall be liquidated first.

b. The balance remaining will be applied next to any interest on past due contributions imposed under subsection 3 of Section 1225 of the Employment Security Law for such quarter.

c. After the conditions of (a) and (b) above have been met, any remaining balance shall be applied for such quarter to any payroll penalty assessed under subsection 13 of Section 1082 and penalties on past due contributions imposed under subsection 4 of Section 1225, respectively.

d. Any balance thereafter remaining shall be applied in a like manner proceeding chrono­logically from the oldest to the most recent quarter for which any amounts remain outstanding.

3. The payment of interest on past due contributions, penalties on past due contributions, or payroll penalties does not preclude the employer from requesting and obtaining a waiver, abatement or refund under the provisions of subsections 3, 4, 5, and 8 of Section 1225 or subsection 13 of Section 1082 of the Employment Security Law.

4. Exceptions to this payment application may be made when it is deemed necessary for the successful collection of the contributions due and more of the payment received is applied to contributions and less to penalties and/or interest.

E. Under subsections 3 and 4 of Section 1225 and subsection 13 of Section 1082 of the Employment Security Law, decisions by the Bureau denying requests for the waiver of interest and penalties must include a written explanation as to why the legal standard for waiver has not been met. Denial of a waiver is a decision that is appealable to the Division of Administrative Hearings, in accordance with subsection 1 of Section 1226 of the Employment Security Law.

F. [Repealed]

G. [Repealed]

H. For the purpose of annually computing contribution rates under subsection 4 of Section 1221 of the Employment Security Law, all contribution payments made up to and including July 31st of the preceding year, including contributions assessed and paid late from the period when employment began, will be included in the formula for determining the employer's contribution rate. In calculating an employer's average annual payroll for the 36-consecutive month period ending June 30th of the preceding year, the divisor shall in all cases be 3 regardless of whether an employer paid wages during any July to June period.

I. For the purposes of subsection 9 of Section 1221 and subsection 12 of Section 1082, contributions erroneously paid by an employer to another state and subsequently refunded, in whole or in part, to such employer shall be due and payable to the State of Maine in an amount based on the amount of taxable wages paid in employment multiplied by the employer's Maine tax rate and reduced by any amount paid by such other state as unemployment compensa­tion benefits attributable to the employer. The amount of such reduction shall be charged against the employer's experience rating record, as required under subsection 3 of Section 1221.

4. Payments in lieu of contributions

A. Following the end of each calendar month the Bureau shall notify each employer of the amount of benefits paid and chargeable to the employer and shall assess the cumulative amount due, under paragraph A of subsection 11 of Section 1221 of the Employment Security Law. No such assessment shall be issued for a cumulative amount less than $10.00.

B. Payments shall be due 30 days after the date of mailing to the last known address of the employer unless an application for redetermination of an assessment is duly filed. If such due date falls on a Sunday or a legal holiday, or on a day which the Governor or the Commissioner of Administrative and Financial Services of the State of Maine or a designee has determined to be a non-work day for the Bureau, then any payment reaching the office of the Bureau, or any duly constituted agent of the Bureau, on the next work day shall be deemed to have been received timely. Due date for payment in the case of a redetermination shall be determined in the same manner as for the original determination.

B-1. After receiving an application for redetermination, in accordance with paragraph D of subsection 11 of Section 1221 of the Employment Security Law, the Bureau shall review the calculation of the amount assessed only with respect to whether such amount bears the same ratio to total benefits paid to the claimant during the period as the claimant's base period wages paid by the employer bear to the claimant's total base period wages paid by all employers. Employers liable for payments in lieu of contributions shall pay all amounts assessed when due without regard to the pendency or result of any appeal as to the claimant's eligibility or qualification for benefits. If the result of any such appeal establishes an overpayment to the claimant's benefit account, such overpayment shall be credited to the employer's account only at the time recovery from the claimant is effected. In no event shall an employer liable for payments in lieu of contributions be released from the liability to reimburse its proportionate share of benefits erroneously paid.

C. Payments made by mail shall be deemed to have been made timely if postmarked not later than midnight of the due date. If the due date falls on a Saturday, Sunday or a legal holiday, payment shall be deemed to have been made timely if postmarked not later than midnight of the next business day.

D. Within 60 days after the effective date of its election, each employer electing to make payments in lieu of contributions, if so required by the Commissioner, shall file a surety bond, or deposit money, or securities, as approved by the Commissioner, in the amount equal to five percent (5%) of the taxable wages paid by such employer for the four completed calendar quarters immediately preceding such effective date, or the four completed calendar quarters immediately preceding any renewal of the bond. If the employer has not paid wages for four completed calendar quarters, the amount of the bond, or deposit of money or securities shall be in the amount fixed by the Commissioner which would most nearly represent a four-calendar quarter period based on the employer's actual payment of wages.

The obligation under the bond shall render the surety liable, as though the surety was such employer, to the extent of the bond for any failure of the bonded employer to pay the full amount of payments in lieu of contribution when due, together with any applicable interest and penalties provided for in subsections 3 and 4 of Section 1225 of the Employment Security Law. The bond or other instrument of security shall remain in effect for the entire period of time during which unemployment benefits may be paid to the former employees of the employer, which extends for a minimum of 30 months beyond the date that employment ceased. The amount secured may be increased or renewed at such times as the Commissioner prescribes, as long as the employer continues liable for payments in lieu of contributions.

If the instrument of security is in the form of a deposit account to which the employer has access, the deposit account must specify that it is for the benefit of the Treasurer, State of Maine, as custodian for the Maine Department of Labor. The account must be established in a manner that prohibits the employer from making withdrawals from the account without approval from the Bureau.

5. Payments by the State, any political subdivisions or instrumentalities

A. Following the end of each calendar month, the Bureau shall notify the State or any political subdivision or instrumentality thereof of the amount of benefits paid and chargeable to the reimbursement account of such governmental entity and shall assess the cumulative amount due under the provisions of subsection 13 of Section 1221 of the Employment Security Law. However, no such assessment shall be issued for a cumulative amount less than $10.00.

B. Payment of the amount determined to be due shall be made within 30 days after notice of assessment is mailed, unless a request for redetermination is filed within 30 days of such mailing. If such due date falls on a non-work day for the Bureau, then any payment reaching the office of the Bureau, or any duly constituted agent of the Bureau, on the next work day shall be deemed to have been received timely.

Payments made by mail shall be deemed to have been made timely if postmarked not later than midnight of the due date. If the due date falls on a Saturday, Sunday or a legal holiday, payment shall be deemed to have been made timely if postmarked not later than midnight of the next business day.

Due date for payment in case of a redetermination shall be determined in the same manner as for the original determination.

C. The provisions of paragraph B-1 of section 4 of this chapter shall apply with equal force to assessments of amounts due from the State and any political subdivision and any of their instrumentalities.

6. Group accounts

A. For the purpose of subsection 15 of Section 1221 of the Employment Security Law, two or more eligible employers may file a joint application, on the form prescribed by the Bureau, for establishment of a group account. The application shall identify a group representative, authorized to act as agent of the group. When the application is approved, the Bureau shall establish the group account effective as of the beginning of the calendar quarter in which it receives the application, to remain in effect in accordance with the provisions of such sub­section 15.

B. New members may be added to, and active members may withdraw from such group account, with approval of the Commissioner, upon application duly filed.

C. The representative, acting as agent for the members of such group account, shall be responsible for dealing with the Bureau relative to obligations of each member under law, and all notices from the Bureau as required in the law sent to the representative shall be deemed to have been sent to any member of the group to which it relates.

D. Any bond, money or securities furnished under the provisions of subsection 12 of Section 1221 of the Employment Security Law shall be for the group and the amount thereof shall be determined in the same manner provided in section 4(D) of this chapter.

7. Reports

A. Every employer subject to payment of contributions or liable for payments in lieu of contributions, as provided in sections 3, 4, 5, and 6 of this chapter, shall execute and return to the Bureau quarterly, a contribution report.

B. Each employer shall submit, in accordance with subsection 13 of Section 1082 of the Employment Security Law, quarterly payroll reports showing the name, Social Security Number of, and total wages paid to each person employed by it. Quarterly reports shall be due in the office of the Bureau, or any agent of the Bureau, on or before the last day of the month following the close of the calendar quarter for which the reports relate and shall be on such forms as the Bureau may prescribe. If the due date falls on a non-work day for the Bureau, then quarterly reports reaching the office of the Bureau, or any duly constituted agent of the Bureau, on the next work day shall be deemed to have been received timely.

Quarterly reports made by mail shall be deemed to have been made timely if postmarked not later than midnight of the due date. If the due date falls on a Saturday, Sunday or a legal holiday, the report shall be deemed to have been made timely if postmarked not later than midnight of the next business day.

Employers, payroll service providers and group account agents are required to file reports electronically as directed by the Bureau unless they obtain a waiver from the Bureau. Waivers shall only be issued upon a determination that it is not possible for the reporting employer, payroll service provider, or group account agent to file reports electronically.

C. Each employing unit shall make reports as required by the Bureau on the prescribed forms. Instructions accompanying any report shall have the same force and effect as regulations.

D. Employers and agents of employers, including payroll providers and third-party agents, may use e-signatures to sign their reports. The use of e-signatures must be consistent with Maine statutes governing such use.

E. All employers exempt from the weekly payment of wages as provided in Section 1224 of the Employment Security Law shall submit quarterly payroll reports including all accrued wages payable for employment during the calendar quarter.

F. When an employing unit receives a request for information from the Bureau, including but not limited to a request for information with respect to separation of an alleged former employee, the employing unit shall complete the form and return the same within 10 days from the date the request was mailed. An employer that has established a pattern of failing to respond timely or adequately to requests from the Bureau for information relating to claims for unemployment compensation may not be relieved of charges relating to an erroneous payment made to a claimant due to a failure to receive the information prior to payment of the benefits pursuant to Section 1221(3)(E) of the Employment Security Law. Subsection 6(R) of Section 1221 defines a “pattern of failing” to mean “repeated documented instances of failure on the part of the employer or agent of the employer to respond timely or adequately to a written or electronic request from the Bureau for information relating to a claim for unemployment compensation, taking into consideration the number of instances of failure in relation to the total number of requests. An employer or agent of the employer that fails to respond timely or adequately to a written or electronic request from the Bureau for information relating to a claim for unemployment compensation may not be determined to have engaged in a pattern of failing if the number of instances of failure during the year prior to a request is fewer than 2 or less than 2% of requests, whichever is greater.”

G. Whenever an employing unit offers employment to an individual and such offer is refused, or when an employer is unable to contact a former employee at last known or given address or telephone number for purpose of recall to suitable employment, the employing unit shall immediately notify the Bureau as to the details of the offer and refusal or attempted recall.

8. Identification of workers. Each employer shall ascertain the Social Security Number of each worker employed by it.

9. Change in employer status or entity

A. Every employer shall immediately notify the Bureau of any change to its contact information, such as address, telephone number or any other form of contact. The Bureau will rely on last known or given address for the employer for purposes of notice to the employer of all matters pertaining to unemployment. The Bureau is entitled to the presumption of receipt by the employer of any notice or correspondence sent to the employer’s last known or given address.

B. Every employer who transfers any part of the assets of the employer's business by sale, lease, merger, consolidation, reorganization or otherwise, shall immediately in writing report such transfer to the Bureau.

C. Every employing unit which is the transferee of a part of the assets of any business formerly owned by an employer shall report such transfer to the Bureau.

D. Every executor or administrator of the estate of a deceased individual who, at the time of death, was an employer under the Employment Security Law shall notify the Bureau as to the date of death of such employer and the date upon which such executor or administrator qualified.

E. Every custodian, guardian, receiver, conservator, trustee in bankruptcy and any other person assuming control of the assets of an employer by court order shall notify the Bureau of the date and provisions of such order.

10. Cash value of meals and lodging. The cash value of meals and lodging, including those furnished at a bargain charge to the employee, shall also be included in the wages for computing contributions due under Section 1221 of the Employment Security Law. The cash value of meals and lodging may be excluded from wages if three conditions are met: such meals and lodging are (1) furnished for the employer's convenience; (2) on the employer's premises; and (3) furnished as a condition of employment.

If the value of meals and lodging is included in wages the Bureau reserves the right to determine, in individual cases, the cash value of such remuneration pursuant to subsection 19 of Section 1043 of the Employment Security Law. Where a cash value for meals and lodging is agreed upon in any contract of hire, the amount so agreed upon shall, if more than the rates prescribed herein, be deemed to be the value of such meals and lodging. Where a cash value for meals and lodging is not agreed upon by the employer and the employee, the Bureau will determine the fair market value of the meals and lodging on the basis of the facts and circumstances presented. In no circumstance shall the cash value of meals and lodging be determined to be more than: the State of Maine standard Federal per diem rates as established annually by the US General Services Administration.

11. Field Investigations

A. Investigations of Potentially Subject Employers. Whenever a claimant reports that he or she performed services with an individual or employing unit which has not previously been determined to be an "employer" as defined in subsection 9 of Section 1043 of the Employment Security Law, and that individual or employing unit should be or might be an "employer," then a field examination shall be initiated.

B. Investigations of Potentially Subject Employment. Whenever a claimant reports that he or she performed services for an "employer," as defined in subsection 9 of Section 1043 of the Employment Security Law, and it is found that the Bureau does not have a record of wages for those services, and such services should be or might be subject to the Employment Security Law, then a field examination shall be initiated. If it is determined that such services are "employment" as defined in subsection 11 of Section 1043 of the Employment Security Law, and if the Bureau does not have a record of the amount of wages paid, then a statement will be taken from the claimant. The claimant will be required to furnish any payroll check stubs or other reliable information required by the Bureau in support of the statement.

C. Continued Filing of Claims. While a field investigation, as described in subsections (A) or (B) of this section, is being conducted, the claimant shall be advised both orally and in writing to continue to file weekly claims.

12. Severance Pay

A. Severance pay is considered remuneration for personal services, and as such, is defined as wages in accordance with subsection 19 of Section 1043 of the Employment Security Law.

B. Contributions on severance pay, including payments made pursuant to Section 625-B of Title 26, shall be due on or before the last day of the month following the close of the calendar quarter in which the severance pay was paid to the individual. The contribution rate shall be based on the employer's experience rating record and determined from this reserve ratio in accordance with subsection 4 of Section 1221, of the Employment Security Law.

C. The severance pay will be exempt from contributions if the remuneration paid to the individual, in the form of wages, during the same calendar year exceeded the amount of wages specified in paragraph A of subsection 19 of Section 1043 of the Employment Security Law.

13. Successorship

A. Under Section 1228 of the Employment Security Law, the Bureau may determine, in accordance with paragraph (B) of subsection 9 of Section 1043, that an individual or organization is liable as a successor for contributions and interest due and unpaid by a predecessor employer as of the date that the successor employer acquired the predecessor's business. This determination must be made in writing and is appealable. A copy of such determination with notice of appeal rights must be retained by the Bureau. The factors to be used in determining whether a successorship has occurred are as follows:

1. The extent to which the successor’s enterprise retains its pre-transfer identity;

2. The successor’s capacity to produce similar goods and services;

3. Continuity of management;

4. Similarity in methods of production and distribution;

5. Identity of the employment force; and

6. The amount of assets, particularly employment producing or income producing assets, transferred.

The Bureau will take into account the combination of factors to determine the extent to which the successor has the capacity to perpetuate the business of the predecessor; no single factor is determinative of the issue.

B. The successor is liable for contributions owed by the predecessor in an amount not to exceed the reasonable value of the business acquired. The Bureau will assess the full amount of contributions owed on the presumption that the value of the business exceeds the amount of the debt for contributions. The successor may rebut the presumption by presenting evidence to demonstrate a reasonable value of the business at the time of acquisition. The Bureau’s determination of the value of the business may be appealed.

C. Assessments for contributions owed by the predecessor must be mailed to the successor employer in accordance with the time periods established by subsection 6 of Section 1225 of the Employment Security Law.

D. Prior to making an assessment against the successor for contributions and interest that were not paid by the predecessor, the Bureau shall make every effort to collect the amount owed from the predecessor, including but not limited to the following:

1. Documented attempts to contact the predecessor by telephone, by mail and in person;

2. Establishing responsible individual liability against the predecessor in accordance with Section 1225(1-A) of the Employment Security Law;

3. Establishing liens against property owned by the predecessor; and

4. Disclosing the assets of the predecessor when appropriate.

E. Under Section 1228 of the Employment Security Law, interest on the amount of contributions owed and unpaid by the predecessor shall not continue to accrue against the successor after the date of acquisition of the predecessor's assets.

F. If the predecessor makes payments on its debt to the Bureau after the successor has also so paid the Bureau, the amounts so paid by the successor with respect to the successorship shall first be applied to delinquent amounts owed by the successor, if any, and any amount remaining shall be reimbursed to the successor in full.

G. If the successor pays the entire amount owed by the predecessor, the debt will be considered paid in full. No further interest or penalties may be assessed against the predecessor for nonpayment of the debt with respect to the successorship, and all existing liens against the predecessor's property, which relate only to that debt, must be removed. Filing fees for removal of the liens must be paid in advance by the predecessor. If the predecessor will not pay the fees, the successor must pay the filing fees.

H. For purposes of rate determination under paragraph A of subsection 5 of Section 1221 of the Employment Security Law, the assignment of or rates and transfers of experience in successor purchases when there is substantially no common ownership, management or control between the transferor and transferee, is as follows:

A new employer who acquires the business of the predecessor employer in toto may acquire the experience rate of the employer or may be assigned the state average contribution rate, whichever is lower. Upon notification of the transfer, the Bureau will determine whether there is substantially no common ownership, management or control, relying on the criteria set forth in paragraph K below. If the Bureau determines that there is no common ownership, the Bureau will notify the new employer of the option of acquiring the predecessor’s experience rate, or being assigned the new employer rate. The new employer will have 30 days to notify the Bureau of its choice. Failure to notify the Bureau will result in the Bureau assigning the employer the lower of the two rates.

An existing employer with an established experience rate who acquires the business of the predecessor employer in toto may acquire the experience rate of that predecessor employer, which is then blended with the successor’s established experience rate to form a new rate, or retain the established experience rate of the successor, whichever is lower. Upon notification of the transfer, the Bureau will notify the existing employer of the option of blending the rate or retaining its established rate. The existing employer will have 30 days to notify the Bureau of its choice. Failure to notify the Bureau will result in the Bureau assigning the employer the lower of the two rates.

The acquisition in toto of a business accrues to the ultimate successor. An ultimate successor is the entity which has the capacity to continue the predecessor's business even though such successor may have acquired the predecessor's business or assets through an intermediate party or by other than a purchase/sale transaction. Where the intermediary acts only as a straw party and does not operate the business as its own, or have the capacity to do so for all practical purposes, the predecessor's experience rating record shall be transferred to the ultimate successor.

J. Under subsection 5 of Section 1221 of the Employment Security Law, only a successor employer that acquires the business of a predecessor employer in toto will be entitled to the predecessor's experience rating record. A successor that acquires only a severable portion of the predecessor's business, in accordance with paragraph G of subsection 9 of Section 1043, will be assigned the rate of a new employer pursuant to paragraph A of subsection 4 of Section 1221 of the Employment Security Law. A severable portion means a part of a business that is separable from the preceding business but which is capable of maintaining a complete and independent existence. If the successor that is acquiring the severable portion of the predecessor’s business is an existing employer, the successor will retain its own rate.

K. SUTA Dumping. Under Section 1221(5-A), when an employer who transfers its trade or business, or a portion to its trade or business, to another employer with which there is substantially common ownership, the Bureau may determine that the parties have engaged in SUTA dumping, which is a transfer that has been entered into for the purpose of obtaining a lower unemployment rate. For purposes of identifying such a transfer, the Bureau will consider the following factors:

Substantially common ownership exists when the transferor and transferee have a relationship that pre-exists the date of the transfer. This can include but is not limited to a family relationship, employment relationship, investor relationship or other relationship that suggests the parties shared a common interest in the economic success of the transferred business.

Substantially common management or control exists when the transferor and transferee have an intertwined or dependent relationship such that both parties are involved in the day-to-day operation of the transferred business.

14. Proprietorship/Partnership Income; Corporate Officers

A. In making assessments for contributions and determinations with respect to employment status under the Employment Security Law, remuneration received for services performed by proprietors or partners of a business is personal income and is not subject to taxation. The existence of a proprietorship or partnership negates the applicability of the employment standards test set forth in paragraph E of subsection 11 of Section 1043 of the Employment Security Law with respect to the services performed by proprietors or partners. In determining whether a partnership exists, the factors to be considered by the Bureau include but are not limited to the following:

1. A written partnership agreement is not necessary for a business to qualify as a partnership.

2. A partnership may be established by the agreement of the parties to pool their resources to jointly seek profits and share in the losses.

3. The entire arrangement between the parties must be analyzed under the totality of the circumstances in order to discern the true intent of the parties.

B. For all purposes of the Employment Security Law and these rules, services performed for any corpora­tion, including a subchapter "S" corporation, by its corporate officers shall be deemed to be "employment", and remuneration received by corporate officers for such services shall be treated as "wages".

15. Responsible Individual Assessment

For purposes of assessing liability of an officer, director or member of the employer pursuant to Section 1225(1-B), the Bureau will rely on the factors set forth in the case of Prescott v. State Tax Assessor , 1998 ME 250, 721 A.2d 169, as follows:

It is the assessed person’s burden to show that he or she is not a responsible person;

The term “responsible” is given a broad interpretation, focusing on the individual’s status, duty and authority to determine whether bills should, or should not, be paid and when, including the ultimate decision whether the unemployment contributions should be paid when due;

Responsibility is imposed on all individuals who had the authority and responsibility to avoid the default in paying the contributions when due; each individual is jointly and severally liable for the total amount due;

Responsibility is based on the function of the individual in the business, not the title or level of office held;

The individual assessed must have exercised authority over the financial affairs or general management of the business, or must have had a duty to do so; this control does not have to be exclusive to the individual being assessed;

Indicia of responsibility to pay the contributions include, but are not limited to, the holding of corporate office, the authority to disburse corporate funds and stock ownership, the ability to hire and fire employees, check-signing authority, and managing of day-to-day responsibilities;

A superior’s instructions to another to not pay the contributions will not relieve that individual of the responsibility; delegating responsibility for financial matters will also not relieve the individual of responsibility;

The existence of authority in the general management and fiscal decisionmaking of the business, regardless of whether it is exercised, is determinative of the responsibility.

16. Localization of Service

For purposes of determining whether an individual’s service is localized in the state of Maine pursuant to Section 1043(11)(A), the Bureau will look at the employer’s intent or expectation at the time of hire as to which state where the individual will perform the services. If the individual is performing services in a state other than Maine, the Bureau will make the determination based on additional factors, including the base of operations or place from which the services are directed and controlled, or in cases where there is no one state in which the individual’s work is located, the individual’s state of residence.

An employer who employs individuals in more than one state is required to maintain coverage for its employees in the states in which the employees’ work is localized. If the employer cannot ascertain localization of work for its employees, it must establish an interstate coverage agreement with the states in which its employees are performing services.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. Sec. 1043 (19), 1082, 1221
• EFFECTIVE DATE: October 1, 1975 (Filed with Sec. of State 10-6-78)
• AMENDED: October 8 1979 - Sec. 2.7(D)
• AMENDED: August 10, 1981 - Sec. 1, 3, 4, 5, 7, 9 & 10
• AMENDED: November 2, 1982 - Sec. 10
• AMENDED: July 1, 1984 - Sec. 4 & 5
• AMENDED: March 27, 1987 - Section 11
• AMENDED: May 15, 1990
• AMENDED: March 23, 1991
• AMENDED: September 6, 1993
• EFFECTIVE DATE (ELECTRONIC CONVERSION): July 2, 1996
• AMENDED: December 25, 1996
• NON-SUBSTANTIVE CHANGES: August 28, 1997 - minor spelling and formatting, conversion to Microsoft Word for Windows 2.0 format.
• NON-SUBSTANTIVE CHANGES: December 11, 1997 - insertion of missing “5” in 3(D)(3); minor punctuation and formatting in 3(H) and 7(B); removal of 14(C), a paragraph which duplicated the existing 14(A)(3).
• AMENDED: May 30, 2000
• NON-SUBSTANTIVE CORRECTION: August 29, 2001 - Sec. 4(B)
• AMENDED: July 2, 2018 – filing 2018-119
• NON-SUBSTANTIVE EDIT: October 30, 2024 - Rule header on page 1 amended to identify the agency unit of jurisdiction
• NON-SUBSTANTIVE EDIT: APAO WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK: July 17, 2025

Chapter 3 Unemployment Benefits, Intrastate

Code Me. R. 12-172 Ch. 3 Unemployment Benefits, Intrastate {#sec-12-172-ch.-3 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 3}

SUMMARY: This chapter establishes procedures to be followed in filing for unemployment benefits.

1. Benefits for total unemployment, as to claimants.

A. Claims for total unemployment benefits must be made in accordance with this section and upon forms or by other methods approved by the bureau.

B. Claims for total unemployment benefits will be accepted by the bureau only when filed:

1. Through a telephone claims center of the bureau, either by telephone or by mail in accordance with procedures as approved by the bureau; or

2. At any location authorized by the bureau.

C. No claim shall be valid for any week prior to the week in which a claimant has registered for work with a representative of the bureau except under the circumstances provided for in this section and, in addition, registrations may be deferred for the following classes of claimants:

1. Claimants involved in a mass temporary lay-off;

2. Claimants for partial benefits;

3. Claimants involved in a strike, lockout, or other labor dispute;

4. Claimants who have a continuing job attachment with reasonable assurance of resumption of employment.

No claimant shall be denied complete registration upon request.

D. To maintain eligibility for benefits, a claimant must report at the time and place assigned to him for reporting by a representative of the bureau. If a claimant is filing by mail under provisions of subsection (B)(1), the envelope containing the claim card must bear a postmark date not later than fourteen (14) days from the week-ending date of the claim week. A claimant may have an additional seven (7) days to file a claim if the claimant can show good cause for the late filing of that claim.

When a claimant is filing for a week of benefits by mail, the bureau normally provides the claimant a weekly claim card when a benefit check or a message card for a prior week is issued. If no claim is received or postmarked within either the fourteen (14) day period or the additional seven (7) day period allowed for good cause, an initial, additional initial, or reopened claim must be filed to begin a new claim series. Benefits shall not be allowed for the period starting with the week for which the claim card was filed later than fourteen (14) days after the week ending date of that claim, or an additional seven (7) days if good cause was found, and ending with the week immediately preceding the week during which the initial, additional initial or reopened claim was filed.

If the bureau, due to an administrative error, erroneously fails to issue a claim card for a week, a claimant may be permitted to file a claim for that week and subsequent weeks upon issuance of the claim card(s). Such claim cards must be postmarked for return to the bureau within 10 days of the date issued in order to be considered timely. Failure on the claimant’s part to file claim cards timely, and thus not receive subsequent claim cards timely, does not constitute an administrative error.

Additionally, a claim card issued to a claimant following the acceptance by the bureau of a prior week’s claim as timely shall be considered to be timely if it is received by the bureau, or if the envelope containing the claim card is postmarked, within ten (10) days of the date issued, regardless of the claim week for which the claim card is issued. A claimant’s history transcript computer printout shows the most recent weekly claim processed by the bureau. This computer printout will generally be accepted as evidence that a weekly claim was issued to the claimant for a particular week. The bureau shall inform the claimant to notify the bureau promptly if he or she has not received a claim card.

Claimants who are filing a claim for a week of benefits by telephone shall call a telephone number designated for that purpose unless otherwise directed by the Bureau. Weekly claims by telephone or other electronic means shall be made on the days and during the hours designated by the Bureau for the filing of such claims. The filing of a weekly claim by electronic means shall be considered to be timely if it is completed by the close of the claim filing period on the second Friday following the week ending date for which the claim is filed. The claimant may have an additional seven days to file a weekly claim by electronic means if the claimant can show good cause for the failure to file the claim in a timely fashion. If a weekly claim is not made by the end of the additional seven-day period, the claimant will no longer be considered to be “during the period a claimant is receiving benefits,” and no claims shall be valid between the week for which the most recent timely claim was filed and when the claimant reactivates the claim. No claim filed by electronic means will be valid unless the claimant receives a confirmation message at the end of the claim filing process. For purposes of this subsection, “electronic means” includes the telephone and other electronic means approved by the Bureau.

Claimants who are filing by mail shall report in person when directed to do so by the bureau, at a date and time specified in a message printed on their mail claim card. If the claimant does not report within ten (10) days of that date, benefits for that week will be denied unless the claimant can show good cause for the failure to report at a date and time specified in a message printed on their mail claim card.

If a claimant has been instructed by means of a message which has been sent to him with his mail claim card or by any other written means to provide information which is necessary to determine his eligibility for benefits, and such information is not provided, either by telephone, or in an envelope that is postmarked, within fourteen (14) days from the date on which the message was mailed to him with his mail claim card or the date on which any other request to provide such information was mailed to him, benefits shall be denied for the week for which the requested information was not provided unless the claimant can show good cause for the failure to provide requested information to the bureau.

E. 1. No benefits will be paid for any week of unemployment unless the claimant has affixed his signature to and answered all questions on the claim form provided by the bureau for the purpose of claiming benefits for the week involved. A Personal Identification Number (“PIN”) related to a telephone weekly claim or a claim filed using the Internet will be considered to be a valid electronic signature.

2. If a claim form provided by the bureau for purposes of claiming benefits for a week is not signed or if all questions on the claim form are not answered, the form will not be considered to be a claim for purposes of subsection (A) of this section. However, if the claim form or a duplicate is later signed or if the unanswered question or questions are later answered, the original filing date of the claim form will determine the timeliness of the claim for the purpose of Rule 3.1(D).

3. A claimant will be notified, by means of a message which will be sent to him with his mail claim card or by any other written means, that he has an opportunity to sign a duplicate claim card or to answer questions, which were not answered on the claim form. If the claimant does not provide his signature or the answers to the questions within fourteen (14) days from the date on which the message was mailed to him with his mail claim card or the date on which any other written request to provide such signature or answers was mailed to him, benefits shall be denied for the week for which the signature or answers were not provided.

F. Any claimant who obtains work of any kind while filing weekly claims for benefits shall write the name of the employer and amount earned on his weekly claim form. A claimant who is reporting electronically shall report the name of the employer and the amount earned verbally at the designated point in the electronic claim filing procedure.

G. A claimant's week of unemployment and his registration for work shall be deemed to commence on;

1. The Sunday of the calendar week in which he files a claim with a representative of the bureau by telephone;

2. The Sunday of the week in which the envelope containing his initial claim for benefits is postmarked if the claimant last worked during that week;

3. The Sunday of the week prior to the week in which the envelope containing his initial claim is postmarked if the claimant last worked during that prior week. However, if a telephone claims center of the bureau is closed on a Friday which the governor or the commissioner of the Department of Administration and Financial Services or a designee of the state of Maine has determined to be a non work day but is not a regularly scheduled holiday, a claimant may file an initial claim through such telephone claims center of the bureau for that week on the next scheduled work day of such telephone claims center of the bureau.

H. Claimants who are employed part time, but not in such places or establishments or capacities in which they are customarily employed as full-time workers, must register and maintain their eligibility for unemployment benefits in the same manner prescribed for totally unemployed persons.

I. After a claimant has been determined to be eligible for benefits, payments will nevertheless not be allowed for any week of unemployment unless a claim for such week is made by the claimant on his assigned report day. A claimant who has been assigned to report in person by a representative of the bureau must report in person at the time and place assigned to him for reporting except under the following circumstances:

1. A claimant returning to work on or before his assigned report day may file a claim, whether in person or by mail, to complete his claims for his last week or weeks of unemployment, provided he does so within ten (10) days of commencing work;

2. Permit Claims.

a. A claimant who normally seeks work only in Maine must secure permission to seek work outside of Maine, except when a claimant is relocating. The deputy will interview the claimant with regard to the area(s) that he is going to, the length of time that he is going to be away, and what his activities will be. No claim will be allowed for a week that a permission claim has been denied.

b. Permission claims will only be authorized if the claimant is temporarily going to another state to seek work. However, benefits may be allowed if the claimant, due to time constraints, had inadequate opportunity to obtain a permission claim prior to leaving Maine in order to temporarily go to another state to seek work.

c. Additional claims for any period longer than two (2) consecutive weeks filed while the claimant is outside of the state must be filed through the interstate benefit payment plan if the claimant has moved outside of Maine. Benefits shall not be allowed for any period longer than two (2) consecutive weeks for claimants who are sending claim forms from outside of Maine to a telephone claim center unless the claims are filed under the interstate benefit payment plan or by “commuter claimants” as described in Rule 4(1)(A)(2).

3. A claimant who has good cause for his failure to report on his assigned report date and reports to file a claim within fourteen (14) days of such assigned report date.

4. Claimants who are in continued claims status who move to a new location within the state of Maine shall, within seven (7) days of arrival at the new location, notify the bureau in writing, or by telephone in accordance with procedures established by the bureau, of their new address. Claimants who are in continued claims status who move to another state shall contact the agent state office for the purposes of establishing the proper reporting requirements and work registration requirements for their new location.

J. When filing his first claim in a benefit year to establish benefits entitlement, a claimant shall furnish his name, social security account number, and all work history, dates and conditions of job separations, and labor market attachment information required by the bureau. It is not a requirement that a claimant present a card, issued by the Social Security Administration, which includes his social security account number.

K. Requalifying earnings under sections 1193(1), 1193(2), 1193(7), and 1193(7-A), shall include only those earnings earned after the actual date of the disqualifying separation.

L. Benefits paid to an individual shall be deemed to be paid through an office of the bureau where any or all of the requirements relating to the determination of an individual's eligibility for benefits are performed.

2. Benefits for partial unemployment, as to claimants and employers.

A. With respect to a partially unemployed individual whose wages are paid on a weekly basis, a week of partial unemployment shall be deemed to be that calendar week which includes the major part of his regular payroll week, and wages reported for the payroll week shall be considered as earned in such calendar week. Wages of partially unemployed individuals who are paid on other than a weekly basis shall be reported for the calendar week involved.

B. Each employing unit, immediately following the close of a week during which any individual customarily employed full time in its employ worked less than full-time hours and did not earn $5 or more in excess of his weekly benefit amount due to lack of work, or, while not having been affirmatively terminated, performed no services and earned no wages for a period of one calendar week due to lack of work, shall give such individual a claim form properly filled out, and thereafter if no employment is available the employing unit shall issue instructions to the worker for making application for total benefits. If the employing unit is not cognizant of an employee's weekly benefit amount, the claim form should be issued for the first week of less than full-time work in the employee's benefit year in order that a determination of the employee's rights may be made and the employing unit and the employee duly notified. Pending receipt of notice of the employee's benefit rights, the employing unit shall issue the claim form for each week of less than full-time work.

1. Issuance of the claim form to individuals for limited periods of more than one consecutive calendar week of performing no services and earning no wages while not having been affirmatively terminated may be authorized by the Bureau of Unemployment Compensation upon specific request from the employing unit due to temporary shut down of operations at the employing establishment.

C. Whenever an employing unit has workers partially unemployed because of lack of work, it shall make available to such workers .printed notices as to partial benefit rights as provided by the bureau.

D. A claim form issued by an employing unit in accordance with subsection (B), when filed with the bureau shall constitute an individual's notice of partial unemployment and registration for work and his claim for benefits for any past compensable weeks of partial unemployment covered by the claim, provided that such claim shall be filed within 4 weeks from the week covered by such claim; but in no case shall an individual have less than 14 days from the date wages are paid in which to file such claim; provided, however, that a claim form covering a week of no employment and no wages shall be filed by the claimant by mail in accordance with subsection G of Rule 3(1) or at another location authorized by the bureau within 10 days following the end of such week, except that a claimant returning to full-time work may file such claim by mail within 10 days of commencing work.

1. However, failure by a claimant to file a claim for partial benefits, within the time specified in subsection (D), shall not constitute basis for denial of benefits, provided the claimant shows good cause for such failure. Good cause shall also be deemed to exist due to failure on the part of the employing unit to comply with verification or other requirements relating to partial unemployment, to coercion or intimidation exercised by the employing unit to prevent the prompt filing of a claim for partial unemployment, or to failure by the bureau to discharge its responsibilities in connection with partial unemployment.

E. Claims for partial benefits with earning, prepared and certified by employing units, may be made by mail.

1. A claimant partially unemployed, who has not filed a previous claim during his benefit year, must file in accordance with the provisions of section 1(J).

F. To be eligible for partial benefits for any week, a claimant's reduced hours and earnings for such week must have been caused by lack of suitable work with his regular employing unit and in addition, a claimant must have been able to work and available for work during the entire week for which partial benefits are claimed, except as provided in subsection 3 of section 1192, and subsection 3 of section 1193, of the Employment Security Law.

G. The claimant may be required to present for inspection all pay envelopes or other evidence such as check stubs covering earnings from all employers for the week for which a claim is being filed.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. § 1192
• EFFECTIVE DATE: July 3, 1978 (Filed with Sec. of State 10-6-78)
• AMENDED: December 11, 1978 - Ch. 3.02 (B, B1, D2)
• AMENDED: October 8, 1979 - Ch. 3.02 (F)
• AMENDED: August 10, 1981
• AMENDED: November 20, 1984 - Sec.1F, 1 L(2), 1 L(5)
• AMENDED: January 29, 1986 - Sec. 1 (F, G, L & O)
• AMENDED: March 27, 1987 - Sec. 3.1(G)
• AMENDED: March 27, 1987 - Sec. 3.1 (L)(2)
• AMENDED: March 27, 1987 - Sec. 3.1(N)
• AMENDED: May 30, 2000
• NON-SUBSTANTIVE CORRECTIONS: December 14, 2000
• NON-SUBSTANTIVE CORRECTIONS: August 29, 2001
• NON-SUBSTANTIVE CORRECTIONS: March 24, 2002
• AMENDED: March 27, 2004 - filing 2004-92
• NON-SUBSTANTIVE CORRECTIONS: June 17, 2004 - grammar, spelling in 1.G.3 and 2.B
• NON-SUBSTANTIVE EDIT: October 30, 2024 – Rule header on page 1 amended to identify the agency unit of jurisdiction
• NON-SUBSTANTIVE EDIT: 12-172 Chapter 3 page 8

Chapter 4 Unemployment Benefits, Interstate

Code Me. R. 12-172 Ch. 4 Unemployment Benefits, Interstate {#sec-12-172-ch.-4 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 4}

SUMMARY: This chapter establishes procedures to be followed in filing for unemployment benefits.

1. Payment of benefits to interstate claimants. The following shall govern the commissioner and the bureau in their administrative cooperation with other states adopting a similar regulation for the payment of benefits to interstate claimants:

A. Definitions. As used in this subsection, unless the context clearly requires otherwise:

1. "Interstate benefit payment plan" means the plan approved by the Interstate Conference of Employment Security Agencies under which benefits shall be payable to unemployed individuals absent from the state (or states) in which benefit credits have been accumulated.

2. "Interstate claimant" means an individual who claims benefits under the unemployment insurance law of one or more liable states through the facilities of an agent state. The term "interstate claimant" shall not include any individual who customarily commutes from a residence in an agent state to work in a liable state unless the bureau finds that this exclusion would create undue hardship on such claimants in specified areas.

3. "State" includes the Commonwealth of Puerto Rico, the District of Columbia, and the Virgin Islands.

4. "Agent state" means any state in which an individual files a claim for benefits from another state.

5. "Liable state" means any state against which an individual files, through another state, a claim for benefits.

6. "Benefits" means the compensation payable to an individual, with respect to his unemployment, under the unemployment insurance law of any state.

7. "Week of unemployment" means any week of unemployment as defined in the law of the liable state from which benefits with respect to such week are claimed.

B. Registration for work.

1. Each interstate claimant shall be registered for work, through any public employment office in the agent state when and as required by the law, regulations, and procedures of the agent state. Such registration shall be accepted as meeting the registration requirements of the liable state.

2. Each agent state shall duly report, to the liable state in question, whether each interstate claimant meets the registration requirements of the agent state.

C. Benefit Rights of Interstate Claimants.

1. If a claimant files a claim against any state, and it is determined by such state that the claimant has available benefit credits in such state, then claims shall be filed only against such state as long as benefit credits are available in that state. Thereafter, the claimant may file claims against any other state in which there are available benefit credits.

For purposes of this chapter, benefit credits shall be deemed to be unavailable whenever benefits have been exhausted, terminated, or postponed for an indefinite period or for the entire period in which benefits would otherwise be payable, or whenever benefits are affected by the application of a seasonal restriction.

D. Claims for Benefits.

1. Claims shall be filed in accordance with liable state regulations for the filing of intrastate claims:

a. With respect to weeks of unemployment during which an individual is attached to his regular employer, the liable state shall accept any claim which is filed within the time limit applicable to such claims under the law of the agent state.

E. Determinations of claims.

1. The agent state shall, in connection with each claim filed by an interstate claimant, ascertain and report to the liable state in question such facts relating to the claimant's availability for work and eligibility for benefits as are readily determinable in and by the agent state.

2. The agent state's responsibility and authority in connection with the determination of interstate claims shall be limited to investigation and reporting of relevant facts. The agent state shall not refuse to take an interstate claim.

F. Appellate Procedure.

1. The agent state shall afford all reasonable cooperation in the taking of evidence and the holding of hearings in connection with appealed interstate benefit claims.

2. With respect to the time limits imposed by the law of a liable state upon the filing of an appeal in connection with a disputed benefit claim, an appeal made by an interstate claimant shall be deemed to have been made and communicated to the liable state on the date when it is received by any qualified officer of the agent state.

History

• STATUTORY AUTHORITY: 26 MRSA § 1082
• EFFECTIVE DATE: September 16, 1961(Filed with Sec. of State-10-6-1978)
• AMENDED: August 10, 1981 - Sec. 4(1)
• AMENDED: May 30, 2000
• NON-SUBSTANTIVE CORRECTIONS: August 29, 2001 - Sec. 4(1)(A)(7), 4(1)(C)(1)
• AMENDED: March 27, 2004 - filing 2004-93
• NON-SUBSTANTIVE CORRECTIONS: June 17, 2004 - Section 1.A.2., spelling only
• NON-SUBSTANTIVE EDIT: October 30, 2024 – Rule header on page 1 amended to identify the agency unit of
• NON-SUBSTANTIVE EDIT: jurisdiction
• NON-SUBSTANTIVE EDIT: 12-172 Chapter 4 page 3

Chapter 5 Rules of Practice Governing Adjudicatory Proceedings

Code Me. R. 12-172 Ch. 5 Rules of Practice Governing Adjudicatory Proceedings {#sec-12-172-ch.-5 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 5}

SUMMARY: This chapter establishes the procedure to be used for the taking of appeals and the conduct of hearings.

1. Proceedings before the Division of Administrative Hearings and the Commission.

A. Notice.

1. Notice of the right to appeal a determination made pursuant to section 1194, subsection 2; or section 1082, subsections 13 and 14; or section 1221; or section 1228; notice of the right to appeal an assessment made under section 1225; and notice of hearing to be held by the Division of Administrative Hearings and/or the commission shall be given as follows: By regular mail to the person or persons whose legal rights, duties, or privileges are at issue, sufficiently in advance of the hearing date to afford an adequate opportunity to prepare and submit evidence and argument and to request a hearing if so desired. The Unemployment Compensation tax field staff may hand deliver notices of appeal rights and will retain copies of all such deliveries.

2. All notices of hearing shall contain the following:

a. A statement of legal authority and jurisdiction under which the proceeding is being conducted;

b. A reference to the particular substantive statutory and rule provisions involved;

c. A short and plain statement of the nature and purpose of the proceeding and of the matters asserted;

d. A statement of the time and place of the hearing;

e. A statement of the manner and time within which evidence and argument may be submitted to the Division of Administrative Hearings or the Commission for consideration.

3. Notice of appeal rights must state the place and manner for taking an appeal and the period within which an appeal may be taken. As to the commission, notice of appeal rights shall state that the commission is not required to hold a hearing and that it is the burden of the appealing party to show a need for such a hearing.

B. Disposition without full hearing.

1. The commission or the Division of Administrative Hearings may make informal disposition of any adjudicatory proceeding by default when the appealing party fails to appear at the scheduled hearing, provided notice of the consequences of such failure to appear has been given said party. Any such default may be set aside by the commission or Division of Administrative Hearings for good cause shown. The procedure for good cause hearings is as follows:

a. Upon written request setting forth the reasons for failing to appear, the Division of Administrative Hearings may provide a good cause hearing to the appealing party that failed to appear at the hearing before the Division of Administrative Hearings. If the Division of Administrative Hearings determines that good cause exists, it will conduct a hearing on the underlying substantive issues. Similarly, upon written request setting forth the reasons for failing to appear at a Commission hearing, the Commission may provide a good cause hearing to the appealing party that failed to appear. A hearing on the underlying substantive issues shall be conducted only if the Commission determines that good cause exists.

b. Upon written request setting forth the reasons for failing to appear, the Commission may provide a good cause hearing to the non-appealing party that failed to appear before the Division of Administrative Hearings. If the Commission determines that good cause exists, it will conduct a hearing on the underlying substantive issues.

c. If it is decided, upon the reasons set forth in the written request and/or immediately upon completion of a good cause hearing, that a party did not have good cause for its nonappearance, no evidence will be taken on the substantive issues, which will have been rendered moot.

2. The commission or Division of Administrative Hearings may limit the issues to be heard or vary any procedure prescribed by these rules or the Maine Administrative Procedure Act if the parties and the commission or Division of Administrative Hearings agree to such limitation or variation, or if no prejudice to any party will result.

C. Ex parte Communications; Separation of Functions

1. In any adjudicatory proceeding, no commission or member or Administrative Hearing Officer authorized to take final action or to make findings of fact and conclusions of law shall communicate directly or indirectly, in connection with any issue of fact, law or procedure, with any party or other persons legally interested in the outcome of the proceeding, except upon notice and opportunity for all parties to participate.

2. This subsection shall not prohibit any commission member from:

a. Communicating in any respect with other members of the commission; or

b. Having the aid or advice of those members of his or her own staff, counsel or consultants retained by the commission who have not participated and will not participate in the commission proceeding in an advocate capacity.

3. This subsection shall not prohibit any Administrative Hearing Officer from:

a. Communicating in any respect with other members of the Division of Administrative Hearings; or

b. Having the aid or advice of those members of his or her own staff, counsel or consultants retained by the Division of Administrative Hearings who have not participated and will not participate in the Division of Administrative Hearings proceeding in an advocate capacity.

D. Opportunity to be heard.

1. The opportunity for hearing shall be afforded without undue delay. Hearings should be speedy, simple and inexpensive.

2. Unless limited by agreement under subsection (B)(2) of this section or unless otherwise limited by the commission or Division of Administrative Hearings to prevent repetition or unreasonable delay in proceedings, every party shall have the right to present evidence and arguments on all issues, and at any hearing to call and examine witnesses and to make oral cross-examination of any person present and testifying.

3. For the purposes of subsection 3 of Section 1194 of the Employment Security Law, the "appealing party," who is required to appear at the hearing before the Division of Administrative Hearings prior to initiating further appeal before the Commission, includes either the claimant, the employer or the deputy who is appealing an adverse Administrative Hearings to the Commission, provided that a non-appearing deputy may initiate an appeal before the Commission upon the approval of the Director of Unemployment Compensation.

4. Sequestration of Witnesses. All witnesses present, not including any interested party and his or her designated representative who have not yet testified in the proceeding before the Commission or Division of Administrative Hearings must be sequestered. Witnesses who have testified but who may be recalled to testify further may be sequestered at the request of any party or upon the initiative of the Commission or the Division of Administrative Hearings.

5. Alternative Dispute Resolution. Notwithstanding paragraph 2 of this subsection, no appeal initiated before the Division of Administrative Hearings may be settled by agreement between the parties at any time prior to, during, or subsequent to a full administrative hearing on the merits of the case unless such settlement includes a stipulation of sufficient facts to support a finding consistent with the payment or denial of benefits in accordance with the requirements of the Employment Security Law. All such settlements shall be prepared in the form of a regular decision of the Division of Administrative Hearings, and shall require Commission approval in order to become effective. The Commission shall give priority to such settlements and shall act expeditiously on them.

E. Evidence.

1. The commission and Division of Administrative Hearings need not observe the rules of evidence observed by the courts, but shall observe the rules of privilege recognized by law.

2. Evidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The commission or Division of Administrative Hearings may exclude irrelevant or unduly repetitious evidence.

3. All witnesses shall be sworn.

4. Subject to these requirements, the Commission and Division of Administrative Hearings may, for the purposes of expediting adjudicatory proceedings, require the prefiling of all or part of the testimony of any witness in written form. Every such witness shall be subject to oral cross-examination.

5. No sworn written evidence shall be admitted unless the author is available for cross-examination or subject to subpoena, except for good cause shown.

F. Official Notice.

1. The commission and the Division of Administrative Hearings may take official notice of any facts of which judicial notice could be taken, and in addition may take official notice of general, technical or scientific matters within their specialized knowledge and of statutes, regulations and nonconfidential agency records. Parties shall be notified of the material so noticed, and they shall be afforded an opportunity to contest the substance or materiality of the facts noticed.

2. Facts officially noticed shall be included and indicated as such in the record.

3. Notwithstanding the foregoing, the commission and the Division of Administrative Hearings may utilized their experience, technical competence and specialized knowledge in the evaluation of the evidence presented to them.

G. Record.

1. In all adjudicatory proceedings the commission and the Division of Administrative Hearings shall make a record consisting of the following:

a. All applications, pleadings, motions, preliminary and interlocutory rulings and orders;

b. Evidence received or considered;

c. A statement of facts officially noticed;

d. Offers of proof, objections and rulings thereon;

e. Proposed findings and exceptions, if any;

f. The decision of the commission or the Division of Administrative Hearings; and

g. All staff memoranda submitted to the members of the commission or the Division of Administrative Hearings by staff in connection with their consideration of the case, except memoranda of counsel to the commission or the Division of Administrative Hearings.

2. The commission and the Division of Administrative Hearings shall record all hearings in a form susceptible to transcription. Portions of the record as required and specified in subsection (G)(1) of this section may be included in the recording. The commission and the Division of Administrative Hearings shall transcribe the recording when necessary for the prosecution of an appeal.

3. The commission shall make a copy of the record, including recordings made pursuant to subsection (G)(2) of this section, available at the office of the Unemployment Insurance Commission, 40 Forest Falls Drive, Yarmouth, Maine 04096, and the Division of Administrative Hearings shall make a copy of the record, including recordings made pursuant to subsection (G)(2) of this section, available at the Maine Department of Labor, 2 Anthony Avenue, Suite #1, Augusta, Maine 04330, for inspection by any person during normal business hours; and shall make copies of the record, copies of recordings or transcriptions of recordings available to any person for a reasonable fee. Notwithstanding the provisions of this subsection, the commission and the Division of Administrative Hearings shall withhold, obliterate or otherwise prevent the dissemination of any portions of the record which are made confidential by State or federal statute, but shall do so in the least restrictive manner feasible. All decisions of the commission and Division of Administrative Hearings shall be kept on file for a period of three years.

4. All material, including records, reports and documents in the possession of the commission or the Division of Administrative Hearings, of which it desires to avail itself as evidence in making a decision, shall be offered and made part of the record, and no other factual information or evidence shall be considered in rendering a decision.

5. Documentary evidence may be incorporated in the record by reference when materials so incorporated are made available for examination by the parties before being received in evidence.

6. Orders for supplying information from the records of the commission or the Department:

a. Orders for supplying information from the records of the commission or the Department to interested parties to the extent necessary for a proper hearing on the issues involved in a claim shall be issued only upon application therefor, setting forth the reasons therefor. All applications for information from the records of the commission or the Department shall state as nearly as possible the nature of the information desired.

b. In all cases where application to supply an interested party with information from records of the commission or the Department is granted, other interested parties shall be furnished with a copy of such information.

H. Subpoena.

1. In any adjudicatory proceeding, any party shall be entitled as of right to the issuance of a subpoena in the name of the Unemployment Insurance Commission or the Division of Administrative Hearings, as appropriate. to require the attendance and testimony of witnesses and the production of any evidence relating to any issue of fact in the proceeding.

2. Authorized subpoenas shall be issued in accordance with the following:

a. The form of the subpoena shall adhere, insofar as practicable, to the form used in civil cases before the courts. Witnesses shall be subpoenaed within the territorial limits and in the same manner as witnesses in civil cases before the courts, unless another territory or manner is provided by law. Subpoenas may be served by certified mail, return receipt requested, and also by first class mail. If circumstances so require, the subpoena shall be served personally on the witness, according to the Maine Rules of Civil Procedure.

b. Witnesses subpoenaed for any hearing before the commission or Division of Administrative Hearings shall be paid witness and mileage fees by the commission in accordance with the following schedule, except that no attendance or mileage fee shall be due or payable when a subpoena is issued to compel an employing unit to appear and produce records and reports for the purpose of making a determination as to liability or for the purpose of completing routine reports as provided under the Maine Employment Security Law:

$10.00 for each day's attendance and $0.22 for each mile's travel between the witness' residence and the hearing location.

c. The subpoena shall show on its face the name and address of the party at whose request it was issued.

d. Any witness subpoenaed may petition the commission or Division of Administrative Hearings to vacate or modify a subpoena issued in its name. The commission or Division of Administrative Hearings shall give prompt notice to the party who requested issuance of the subpoena. After such investigation as the commission or the Division of Administrative Hearings considers appropriate, it may grant the petition in whole or in part upon a finding that the testimony or the evidence whose production is required does not relate with reasonable directness to any matter in question, or that a subpoena for the attendance of a witness or the production of evidence is unreasonable or oppressive or has not been issued a reasonable period in advance of the time when the evidence is requested.

e. Pursuant to Title 5 M.R.S.A. Section 9060(1)(D) failure to comply with a subpoena lawfully issued and not revoked or modified shall be punishable as for contempt of court. Any person who without just cause fails or refuses to obey a subpoena lawfully issued, if it is in that person's power to do so, shall be guilty of a Class E crime, in accordance with subsection 9-A of Section 1082 of the Employment Security Law.

I. Decisions.

1. Every decision of the commission and Division of Administrative Hearings made at the conclusion of an adjudicatory proceeding shall be in writing and shall include findings of fact sufficient to apprise the parties and any interested member of the public of the basis for the decision. A copy of the decision shall be delivered or promptly mailed to each party to the proceeding or his or her representative of record. Written notice of the party's rights to review or appeal of the decision to the commission or review of the decision by the courts, as the case may be, and of the action required and the time within which such action must be taken in order to exercise the right of review or appeal, shall be given to each party with the decision.

2. The commission shall maintain a record of the vote of each member of the commission with respect to the commission decision.

3. Upon proper notice to the parties, each decision made by the Division of Administrative Hearings and the commission will include discussion of all legal issues fairly raised by the evidence. Multiple decisions shall not be issued in cases involving a single set of facts.

J. Disqualifications; Duties; Reports; Conflicts of Interest.

1. Whenever a commission member or Administrative Hearing Officer is disqualified or it becomes impracticable for him or her to continue the hearing, the remaining commission members or another Administrative Hearing Officer may continue with the hearing; provided that, if it is shown substantial prejudice to any party will thereby result , the remaining commission members or substitute Administrative Hearing Officer shall commence the hearing anew.

2. It shall be the duty of the commission and Division of Administrative Hearings to:

a. Administer oaths and affirmations;

b. Rule on the admissibility of evidence;

c. Regulate the course of the hearing, set the time and place for continued hearings, and fix the time for filing of evidence, briefs and other written submissions; and

d. Take other action authorized by statute or these rules.

3. In the event that the commission or the Division of Administrative Hearings prepares any report or proposed findings, the report or findings shall be in writing. A copy of the report or findings shall be provided to each party and an opportunity shall be provided for response or exceptions to be filed by each party.

4. Hearings shall be conducted in a impartial manner. Upon the filing in good faith by a party of a timely charge of bias or personal or financial interest, direct or indirect, of a commission member or Administrative Hearing Officer in the proceeding requesting that that person disqualify himself or herself, that person shall determine the matter as part of the record.

K. Representation before the commission and Division of Administrative Hearings.

1. Any individual may appear on his or her own behalf in any proceeding before the Division of Administrative Hearings and/or the commission. Any partnership may be represented by any of its members or a duly authorized representative.

2. Any interested party may be represented by an attorney-at-law who is admitted to practice before the highest court of this State or the highest court of any state or territory of the United States, or by an authorized agent.

3. The commission or Division of Administrative Hearings may, in its discretion, refuse to allow any person to represent others in any proceeding before it who persists in unethical conduct or who intentionally and repeatedly fails to observe the provisions of the Maine Employment Security Law or these rules or proper instructions of the commission or Administrative Hearing Officer.

L. Attorney and Authorized Agent Fees.

1. When an attorney or other duly authorized agent is retained by a claimant to represent such claimant in any proceeding before the commission or a court, such attorney or agent shall submit a statement of his or her fees to the commission, in duplicate, for approval for payment by the claimant.

1-A. When an attorney is retained by a claimant for the purpose of prosecuting an appeal from a decision of the commission, and the final decision of such court results in a reversal, in whole or in part, of the decision appealed from, such attorney, following the decision of the court, shall submit s statement of his or her fees to the commission, in duplicate, for approval for payment by the commissioner, in accordance with subsection 2 of section 1044 of the Employment Security Law.

1-B. A statement required by paragraphs 1 and 1-A of this subsection shall be itemized setting forth the hourly fee rate and the time consumed in conferences, correspondence, preparation for and attendance at court or a commission hearing, or any other related services rendered and expenses incurred in connection with the case.

2. Upon receipt of the attorney's or authorized agent's statement of fees, the commission shall review the statement and render a written decision which shall be mailed to the attorney or authorized agent by regular mail, postage prepaid. Costs and fees associated with any appeal by a claimant where the appeal is found to have been made in bad faith or frivolously shall not be approved. In determining whether to approve a fee under subsection 2 of section 1044 of the Employment Security Law, the commission will consider, but not be limited to, the following factors:

a. The hourly rate;

b. The amount of hours expended;

c. The complexity of the issues;

d. Whether hearings were conducted before both the commission and the Division of Administrative Hearings and whether and how much duplication of evidence resulted;

e. The amount of fees requested in light of the final amount of benefits awarded to the claimant; and

f. The experience of the attorney requesting the fee in the area of the Employment Security Law.

3. Within thirty (30) days after receipt of the commission's decision, an attorney may request a hearing before the commission if he or she is not satisfied with the original decision.

4. When a request for a hearing to determine attorney fees is made in a timely fashion, a hearing shall be held by the commission pursuant to 5 M.R.S.A. Sections 9051 et seq.

5. The commission, after reviewing the record of the hearing, will notify the attorney or authorized agent by written decision, sent by regular mail, postage prepaid.

6. Any further appeal shall be made pursuant to 5 M.R.S.A. Sections 11001 et seq.

M. Telephone Hearings.

1. The commission or the Division of Administrative Hearings may conduct a hearing by telephone. In determining whether to conduct a hearing by telephone, the factors to be considered include, but are not limited to the following:

a. Whether a party has timely and reasonably requested that a hearing be held in-person;

b. The location of the hearing if it were to be held in-person;

c. The number of hearings that otherwise could feasibly be scheduled at the same location as the in-person hearing;

d. The cost factors involved to the commission, the Division of Administrative Hearings, and the parties in holding a hearing in-person as opposed to by telephone;

e. The number of witnesses and/or exhibits required to be introduced;

f. Whether credibility issues require that a hearing be held in-person; and

g. The seasonal weather conditions.

2. Evidence at a telephone hearing shall be provided as follows:

a. Documents and other non-testimonial exhibits.

i. A party desiring to offer exhibits as evidence shall provide a copy to the commission or Division of Administrative Hearings and to the other party before the date of the scheduled telephone hearing or within a time prescribed by the commission or the Division of Administrative Hearings after the hearing.

ii. The commission or Division of Administrative Hearings shall mark such exhibits and rule on their admissibility at the telephone hearing.

b. Witnesses.

i. Witnesses shall state their full name and address for the record before testifying. In the event a witness misrepresents his or her identity and the party calling the witness knows of the misrepresentation, that party will have waived his or her right to present further evidence and argument. The presiding officer may make informal disposition of the adjudicatory proceeding based on the then existing record.

ii. Witnesses must testify from their own recollection.

2. Proceedings before the Division of Administrative Hearings.

A. At or before the hearing, the Division of Administrative Hearings shall inform all parties to a dispute of their right to examine the contents of the case file in the Division's possession and of their opportunity to offer into evidence during the hearing any item in the file not received into evidence upon the Division's own motion.

B. Decisions of the Division of Administrative Hearings shall be mailed to all interested parties or the representative of record. including the deputy whose decision was reconsidered.

3. Proceedings before the Commission.

A. The commission may remand any claim or any issue involved in a claim to the Division of Administrative Hearings or the Unemployment Compensation Tax Division for the taking of additional evidence as the commission may deem necessary. Such testimony shall be taken by the Division of Administrative Hearings in the manner prescribed for the conduct of hearings on appeals before the Division of Administrative Hearings. Upon the completion of the taking of evidence by the Division of Administrative Hearings pursuant to the direction of the commission, the claim or the issues involved in such claim shall be returned to the commission for its decision thereon.

In addition to what is described above, the commission may, as it deems necessary, in cases where there has been no hearing conducted by the Division of Administrative Hearings or fact-finding conducted by the deputy, remand such claim or issue to the Division of Administrative Hearings for the purpose of holding a hearing or to the deputy for the purpose of conducting a fact-finding interview, as appropriate. In such cases, the Division of Administrative Hearings or the deputy shall render the decision instead of returning the case to the commission for further action.

B. If the decision of the commission is not unanimous, the decision of the majority shall rule.

The minority may file a dissent from such decision. Copies of all decisions and the reasons therefor shall be mailed by the commission to the interested parties or the representative of record.

C. The commission has the authority to create, revise, and issue any and all forms relating to its legally authorized activities.

4. Reconsideration of Commission Decision.

A. An interested party may request the Commission to reconsider its decision in a case, only if such request for reconsideration is filed in writing with the commission within 10 days of receipt of the original commission decision. Such request must set forth with specificity the reasons for which the party believes the decision requires reconsideration.

B. Unless an interested party appears at the hearing before the Division of Administrative Hearings or at the commission hearing, if one was held, he or she may not request reconsideration of the commission decision, unless such nonappearance was for good cause as determined by the commission.

5. Time limit for the Filing of an Appeal.

The Employment Security Law at 26 M.R.S.A. Sections 1194(2), (3), (8), and (10) provides for the period within which an appeal may be filed by interested parties. When the period during which an appeal may be filed under the Employment Security Law ends on a Saturday, Sunday or holiday, the appeal period shall end on the next day which is not a Saturday, Sunday or holiday if the appeal is filed by delivery and is received in-hand by the agency. If the appeal is filed by mailing, however, the appeal period will not be extended, and the appeal must be postmarked within the statutory appeal period, unless the appeal period falls on a Sunday or a holiday, in which case the appeal period will be extended until the next day which is not a Sunday or holiday.

6. Processing Applications for Appeals.

A. Determination by a Deputy. When an interested party expresses dissatisfaction with a determination which was made by a deputy, the deputy shall assist the party in filing an appeal. If, during the taking of the appeal, new evidence or pertinent facts that might alter the determination become known to the deputy, the deputy must review that new evidence or pertinent facts in order to determine if a redetermination, as authorized by the Employment Security Law at 26 M.R.S.A. Section 1194(2), should be made. The deputy shall not encourage or discourage an interested party from filing an appeal.

B. Determination by the Division of Administrative Hearings. When an interested party expresses dissatisfaction to a deputy with a determination which was made by the Division of Administrative Hearings, the deputy shall assist the party in filing an appeal.

C. Form of Appeals

1. Appeals to the Division of Administrative Hearings. Appeals under all applicable sections of the Employment Security Law and these rules shall be made in writing or by electronic means. Electronic means shall include, but not be limited to, the telephone, electronic mail, and using the Internet. Such appeals may be filed on a form and using procedures prescribed by the Department.

2. Appeals to the Commission. Appeals to the commission under all applicable sections of the Employment Security Law and these rules shall be made in writing. Such appeals may be filed on a form prescribed by the commission or by any other written means.

D. Filing of Appeals under all sections of the Employment Security Law shall be as follows:

1. An appeal may be filed by delivering or faxing the notice of appeal to an office of the Maine Department of Labor, including but not limited to any office of the bureau and the Division of Administrative Hearings, or to the commission. The date on which the delivered appeal shall be considered to have been filed will be the day on which it is received. The date that the receiving fax machine’s log indicates that the faxed appeal was received shall be considered the date of filing for faxed appeals. Other indicia of faxing, including but not limited to internal fax journals or logs, will not be considered valid evidence of when an appeal was filed. The office receiving the appeal shall date-stamp the appeal as filed on the date that it is delivered or faxed.

2. An appeal also may be filed by mailing the notice of appeal to an office of the Maine Department of Labor, including but not limited to any telephone claims center and the Division of Administrative Hearings, or to the commission. The date of filing for appeals submitted by mail shall be the date of mailing, which must be evidenced either by a valid U. S. Postal Service mark or a certified receipt of delivery to a U. S. Postal Service Office. Other indicia of mailing, including but not limited to internal postal or meter marks, will not be considered valid evidence of when an appeal was filed. The office receiving the appeal shall date-stamp the appeal on the date that it is received.

3. If an appeal is filed by mailing, and there is no U. S. Postal mark or certified receipt of delivery to a U. S. Post Office, the date that the appeal will be considered filed is the date that it is received in-hand by any office of the Maine Department of Labor or the commission.

4. An appeal from a determination which was made by a deputy and appeals from informal appeal determinations by the Maine Enterprise Option Review Board to the Division of Administrative Hearings (“Division”) may be filed telephonically by calling the Division’s office directly in Augusta, Maine, between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, except for state holidays. The appellant must speak to a Division staff person to file such an appeal. The staff person will request that the appellant supply the Deputy Decision number, the claimant’s social security number, the benefit year end date, and such other information as the staff person may request. If the appellant fails to supply any of this information, a telephonic appeal may not be filed. Once a telephonic appeal has been completed the appellant will be given a unique verification number and will be instructed to retain that number as proof of filing the appeal. The Division will record the verification number along with the date and time of the appeal as part of that case. Any appeal not filed as required above shall not be considered to have been properly filed by telephone and must be filed by another permitted means to be valid.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. Sec. 1082, 1194 and 1226
• EFFECTIVE DATE: July 2, 1978 (Filed with Sec. of State 10-6-78)
• AMENDED: December 11, 1978 - Sec. 1 (A)(1), J (1), J (4), J (2)
• AMENDED: August 10, 1981 - Sec. 1
• AMENDED: November 2, 1982 - Sec. 1 (L), 3 & 4
• AMENDED: March 27 1987 - Sec. 5 & 6 (added)
• AMENDED: March 21, 1991 Sec. 1 (A, B, D, G, H, I, L) and Sec. 4
• AMENDED: September 6, 1993
• EFFECTIVE DATE (ELECTRONIC CONVERSION): July 2, 1996
• NON-SUBSTANTIVE CORRECTIONS: July 1, 1998 - formatting, adding “An” to the first line of 4(A), conversion to MS Word 2.0 format.
• AMENDED: May 30, 2000
• NON-SUBSTANTIVE CORRECTIONS: December 14, 2000
• NON-SUBSTANTIVE CORRECTIONS: August 29, 2001 - Sec. 5(1)(L)(1, 6)
• AMENDED: March 24, 2002 - Sec. 6
• NON-SUBSTANTIVE EDIT: October 30, 2024 – Rule header on page 1 amended to identify the agency unit of jurisdiction
• NON-SUBSTANTIVE EDIT: 12-172 Chapter 5 page 17

Chapter 6 Seasonal Industry Program

Code Me. R. 12-172 Ch. 6 Seasonal Industry Program {#sec-12-172-ch.-6 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 6}

SUMMARY: This chapter details the procedures for: the determination of seasonal industries; payment of benefits for unemployment based on seasonal wages; and for charging and assessing employers for benefits paid on the basis of seasonal wages.

1. Seasonal industries.

A. A "seasonal industry" shall mean an industry which has been determined to be seasonal by the commission or so designated under subsection 3 of section 1251 of the Employment Security Law.

A-1 A "non-seasonal industry" shall mean an industry which the commission has determined not to be a seasonal industry or an industry for which no determination by the commission has been made.

B. Investigation of Industries Alleged to be Seasonal. The commission shall investigate the seasonal nature of any industry on its own initiative or upon receipt of a petition for a seasonal determination signed by at least 5 employers who claim to be members of the industry, or by a majority of the employers who claim to be members of the industry if there are fewer than 5 employers who claim to be members of that industry.

C. Submission of Factual Data. Each member of the industry in question shall, upon request by the commission, submit such records and reports as the commission may deem necessary to indicate the seasonal or non-seasonal nature of his or her operations.

D. Seasonal Determination of Seasonal Industries.

1. After each such investigation, the commission shall hold a hearing for the purpose of determining whether the industry is seasonal and if so, to determine the longest seasonal period or periods during which, by the best practice of the industry, operations are conducted.

2. The commission shall publish notice of such hearing in such newspapers as required by law for state notices and shall also give notice to all interested parties insofar as the same are known to the commission.

3. At the hearing, evidence shall be received from the staff of the bureau, from employers, and from workers or their representatives. Such evidence may be received by the commission even though inadmissible under the rules of evidence applicable to court procedure.

4. After hearing, the commission shall make its determination, a certified copy of which shall be maintained in the office of the commission and the bureau. Each determination shall cover at least the following:

a. The delimitation of the industry to which the determination is applicable.

b. A list of employers included therein insofar as they are known to the commission and the bureau.

c. The operations of the industry to which the determination applies.

d. The beginning and ending dates of the period or periods of the operations to which the determination applies.

5. If the industry is determined to be seasonal, the commission shall cause a notice of the determination to be published in such newspapers as required by law for state notices within 10 days after the determination is made and also shall cause an attested copy of the determination to be filed with the secretary of state. Employers in the industry known to be interested therein shall be given notice of such determination by mail.

6. If the industry is determined to be non-seasonal in its operations, notice thereof shall be given to known interested parties.

E. Reconsideration of Seasonal Determinations.

1. The commission, either on its own initiative or on receipt of a petition signed by at least 5 employers or employees, shall reconsider the seasonal nature or seasonal period or periods of the operations of an industry when there is alleged to be:

a. An error in the prior determination; or

b. Changed conditions in the industry; or

c. New facts discovered since the prior determination.

2. Procedure on reconsideration shall follow that required for an original determination.

F. Special Reports by Employers in Seasonal Industries. Employers in seasonal industries shall make such reports with respect to employment as may be required by the bureau.

G. Applicability of Seasonal Regulations. Determinations with respect to seasonal industries, the operations thereof, and the period or periods thereof shall apply to all employers in fact engaged in the respective industries whether or not so engaged as of the effective date of the determination.

H. Multiple Seasonal Periods. If an employer conducts operations in a seasonal industry during 2 or more determined periods which overlap or are consecutively continuous without interruptions exceeding 14 days between them, such 2 or more periods shall be deemed to be 1 period as to such employer.

I. Winter Operations. If an employer operates during a regularly recurring period which overlaps two successive calendar years, the period of operations at the start of a calendar year shall be added to the period of operations at the end at such calendar year in order to determine whether the operations are conducted for less than 26 weeks. Determinations made under this subsection that an employer is or is not seasonal shall apply to the employer's operations for the next succeeding calendar year.

2. Payment of benefits.

A. Definitions.

1. "Seasonal work" shall mean employment in seasonal industries within the determined seasonal period or periods.

2. "Seasonal unemployment" shall mean an individual's unemployment occurring within the seasonal period or periods corresponding to the seasonal period or periods in which the individual earned his or her base period wages.

3. "Non-seasonal work" shall mean employment in non-seasonal industries or employment in seasonal industries outside of the determined seasonal period or periods.

4. "Non-seasonal unemployment" shall mean an individual's entire period of unemployment if the individual has no base period wages in employment by a seasonal employer or an individual's unemployment occurring outside of the seasonal period or periods corresponding to the seasonal period or periods in which the individual earned his or her base period wages.

5. "Seasonal employer" shall mean in employer that pays seasonal wages.

6. "Non-seasonal employer" shall mean an employer that pays non-seasonal wages.

7. "Seasonal wages" shall mean wages paid for seasonal work during the seasonal period or periods by an employer in a seasonal industry.

8. "Non-seasonal wages" shall mean wages paid by an employer in a non-seasonal industry or wages paid for any services performed outside of the seasonal period or periods by an employer in a seasonal industry.

B. Benefits Predicated Upon Wages Earned in Seasonal Industries.

1. The wage-class, weekly benefit amount, and maximum benefits available shall be determined in the usual manner using wages for both seasonal and non-seasonal work in the base period.

2. An individual who has earned all his or her base period wages in seasonal work shall be entitled to benefits only for seasonal unemployment.

3. An individual having base period wages from both seasonal and non-seasonal work shall be entitled to his or her maximum available benefits for seasonal unemployment, but shall be entitled to benefits for non-seasonal unemployment for only the total amount of available benefits to which he or she would have been entitled if the benefits had been determined solely on the non-seasonal base period wages. Except that when the non-seasonal base period wages are wholly from an employer liable for payments in lieu of contributions, then the benefit payments for the non-seasonal unemployment shall not exceed the employer's proportionate share of the maximum amount of benefits.

C. Fair Hearing. Any benefit determination made under the provisions of this section shall be subject to appeal and opportunity for fair hearing as to any issue involved therein.

3. Charging and Assessing for Benefits.

A. Benefits for Seasonal Unemployment.

Benefits paid for seasonal unemployment shall be charged to the experience rating record of the claimant's most recent subject seasonal or non-seasonal employer in accordance with subsection 3 of section 1221 of the Employment Security Law. Seasonal employers who are liable for payments in lieu of contributions shall be assessed for benefits paid for seasonal unemployment in accordance with subsection 14 of section 1221 of the Employment Security Law.

B. Benefits for Non-seasonal Unemployment. The experience rating record of the claimant's most recent subject non-seasonal employer shall be charged with non-seasonal unemployment benefits paid to individuals when such benefits are not chargeable by law to the general fund. Non-seasonal employers who are liable for payments in lieu of contributions shall be assessed for benefits paid for non-seasonal unemployment in accordance with subsection 14 of section 1221 of the Employment Security Law.

C. Nothing in this section shall prevent the experience rating record of employers in seasonal industries from being charged with benefits paid for non-seasonal unemployment when such employer has paid non-seasonal wages to an individual and the employer is the most recent employer for whom the individual's work record exceeds 5 consecutive weeks of total or partial employment.

D. Nothing in this rule shall prevent the transfer of wages in accordance with the requirements and procedures provided for in the reciprocal benefit arrangements made in accordance with subsection 12 of section 1082 of the Employment Security Law. Whenever wages from seasonal work, which was performed for an employer who is liable for contributions, are transferred to another state, all charges for benefit payments which are based on such wages shall be made to the General Fund.

History

• STATUTORY AUTHORITY: 26 MRSA § 1251
• EFFECTIVE DATE: October 3, 1973 (Filed w/ Sec. of State - 10-6-78)
• AMENDED: August 10, 1981
• AMENDED: October 2, 1989 -sec. 3(C)
• AMENDED: September 6, 1993
• EFFECTIVE DATE (ELECTRONIC CONVERSION): July 2, 1996
• NON-SUBSTANTIVE CORRECTIONS: July 1, 1998 - formatting and punctuation; conversion to MS Word 2.0 format.
• AMENDED: May 30, 2000
• NON-SUBSTANTIVE EDIT: October 30, 2024 – Rule header on page 1 amended to identify the agency unit of
• NON-SUBSTANTIVE EDIT: jurisdiction
• NON-SUBSTANTIVE EDIT: 12-172 Chapter 6 page 6

Chapter 7 Advisory Rulings

Code Me. R. 12-172 Ch. 7 Advisory Rulings {#sec-12-172-ch.-7 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 7}

SUMMARY: This chapter provides the procedure for issuance of Advisory Rulings as required by the Administrative Procedure Act.

1. Procedure for issuance of advisory rulings.

A. Advisory rulings may be made by the Commission with respect to the applicability of any statute or rule administered by the commission or the bureau.

B. All requests for advisory rulings shall be made in writing and submitted to the director of unemployment compensation 20 Union Street, Augusta, Maine. Such requests shall state the facts and statutes or rules on which the ruling is requested.

C. The director of unemployment compensation may request from any person securing an advisory ruling any additional information that is necessary. Failure to supply such additional information shall be cause for the commission to decline to issue an advisory ruling.

D. The commission may decline to issue an advisory ruling if any administrative or judicial proceeding is pending with the person requesting the ruling on the same factual grounds. The commission may decline to issue an advisory ruling if such a ruling may harm the commission's interest in any litigation in which it is or may be a party.

E. All advisory rulings shall be issued no later than 30 days from the date all information necessary to make a ruling has been received by the director of unemployment compensation.

F. No advisory ruling shall be binding upon the commission provided that in any subsequent enforcement action initiated by the commission, any person's reliance on such ruling shall be considered in mitigation of any penalty sought to be assessed.

History

• STATUTORY AUTHORITY: 26 MRSA § 1082
• EFFECTIVE DATE: July 2, 1978 (Filed 10-6-78)
• AMENDED: August 10, 1981 - Sec. 7.1
• NON-SUBSTANTIVE CORRECTIONS: June 19, 2000 - converted to MS Word
• NON-SUBSTANTIVE EDIT: October 30, 2024 – Rule header on page 1 amended to identify the agency unit of jurisdiction
• NON-SUBSTANTIVE EDIT: 12-172 Chapter 7 page 2

Chapter 8 Payments for Dependents

Code Me. R. 12-172 Ch. 8 Payments for Dependents {#sec-12-172-ch.-8 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 8}

Summary: This chapter establishes procedures for payment of dependency allowances.

1. Supplemental Weekly Benefit for Dependents.

A. Meaning of terms. For the purposes of subsection 6 of section 1191 of the Employment Security Law (26 M.R.S. § 1191(6)), the following terms shall have the following meanings.

1. In addition to any other statutory provisions, "child" means one of the following: a natural-born child; an adopted child; or a step-child who has not reached the age of 18, or who has not yet reached the age of 23 if a student, or who or over the age of 18 years if physically and mentally incapacitated from earning and dependent upon the claimant.

2. "Step-child" means a child born to or adopted by the claimant's spouse prior to their present marriage.

3. "Unemancipated child" means a child who is under the control and supervision of a parent or parents. A child who is married is no longer "unemancipated".

4. "Supported" means that the claimant who is applying for the dependency allowance is furnishing housing, food, clothing, education, medical care, or other related expenses for the the dependent child on a regular basis.

5. “Dependent upon” means that the child receives more than de minimis, incidental or intermittent support, in terms of housing, food, clothing, education, or medical care from the claimant.

B. The bureau will not normally require complete documentation with every request for supplemental weekly benefits for dependents. However, supplemental weekly benefits for dependents shall not be paid for any week for which the claimant fails, following a request for such evidence, to furnish a birth certificate, certificate of enrollment, medical document or other evidence required by the bureau to determine the status of a dependent within fourteen (14) days of the request. If the claimant's failure to provide the requested evidence within fourteen (14) days of such request is due to good cause, supplemental weekly benefits for dependents will be allowed retroactively from the week in which the request for such dependency allowance was made, provided the claimant meets all other requirements for the payment of dependency allowances. If the delay in providing requested evidence is not due to good cause, the dependency allowance would be paid effective with the week in which the evidence is received in the local office but would not be allowed retroactively.

C. If both parents qualify for benefit rights for the same week, only one parent for the dependent child for the week may be eligible to receive supplemental benefits for dependents for that week. The eligible parent will be determined as follows:

If the parents are married and/or living in the same household, the parent who filed first for unemployment benefit will receive supplemental benefits.

If the parents are not living in the same household, and the parents have shared primary residential care (joint custody) of the dependent, the parent who filed first for unemployment benefit will receive supplemental benefits.

If the parents are not living in the same household, and one parent has primary residential care of the dependent, the custodial parent will receive supplemental benefits.

D. If the parent eligible for supplemental benefits pursuant to paragrapah C above stops receiving unemployment benefits, the other parent will then be eligible to receive supplemental benefits for any week for which benefits are claimed thereafter.

E. Nonmonetary determinations - dependency allowances.

1. An initial determination of eligibility for supplemental weekly benefits for dependents will be made as soon as possible after the request for such benefits is filed. If the deputy determines that such benefits are to be denied, a written determination will be rendered.

2. If, after the claimant has been found eligible for supplemental weekly benefits for dependents, the claimant ceases to be eligible for such benefit, the deputy will issue a determination denying such benefit.

3. Payment of regular or additional benefits will not be delayed due to any delay in the processing of the application for supplemental weekly benefits for dependents.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. Sec. 1191 (6)
• EFFECTIVE DATE: January 3, 1976 (Filed with Sec. of State 10-6-78)
• AMENDED: August 10, 1981 - Sec. - I (A)
• AMENDED: March 27, 1987 Sec. I (A)(4)
• AMENDED: May 30, 2000
• AMENDED: March 5, 2024 – 2024-045
• AMENDED: 12-172 Chapter 8 page 3

Chapter 9 Able and Available Requirements

Code Me. R. 12-172 Ch. 9 Able and Available Requirements {#sec-12-172-ch.-9 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 9}

1. ABILITY TO WORK

A. ABLE TO WORK

When a claimant has physical or mental limitations which restrict the types of work that the claimant is able to perform, the extent of the restrictions must be examined carefully. In such situations, the deputy will consider, but will not be limited to, the following factors on a case-by-case basis:

1. The claimant's usual or customary occupation;

2. The nature of the restrictions;

3. Whether or not the claimant is qualified, by education, or by training and experience, to perform work within the restrictions which is less physically strenuous or mentally demanding;

4. The extent to which work is available, in the local area or within the scope of a claimant’s usual commute, which is within the claimant's ability, and

5. The claimant's willingness to enter a new field that does not need extensive prior training and experience.

B. WORKER'S COMPENSATION/SOCIAL SECURITY DISABILITY PAYMENTS

The Worker's Compensation Act and Social Security Act each make provisions for payments to persons who have certain disabilities. These provisions are independent of, and are not binding upon, the provisions of the Employment Security Law. However, if a person applies for disability benefits from either or both of these other agencies, the deputy would have to investigate the circumstances of such application in order to determine what effect these circumstances would have on the claimant's eligibility for unemployment benefits.

2. AVAILABILITY FOR WORK

In order to be considered to be "available for work," a claimant must be "attached to the labor market." This means that the claimant must be ready and willing to accept work for which he or she is qualified under the conditions which would normally be associated with the labor market or which correspond to his or her usual or customary hours and commute. The claimant must be available to work in locations in which, and during the hours in which, he or she could reasonably be expected to be employed. The deputy will take into consideration, but will not be limited to, the following factors on a case-by-case basis:

A. HOURS

In order to meet the availability for work requirements of the Employment Security Law, a claimant must be available to accept work during the hours which are customary for the trade or occupation in which the claimant usually works or for the trade or occupation in which he or she has prior training or experience, or during the claimant's usual or customary hours. Claimants whose occupations normally involve working on more than one shift must be available to work on all such shifts. Exception to this requirement for good cause may be established in accordance with the provision in subsection 2 of Section 1192-A of the Employment Security Law.

Part-time Work

Under certain circumstances a claimant who is not able and available for full-time work may remain eligible for benefits. A claimant who is eligible under subsection 1 of this provision shall be eligible to receive his or her full weekly benefit amount. A claimant who is eligible under subsection 2, subsection 3, subsection 4, or subsection 5 of this provision shall be eligible to receive prorated benefits for that portion of the week during which the individual was able and available. A claimant who is not able and available for full-time work shall not be ineligible for benefits if:

1. A majority (more than 50%) of the weeks worked during the claimant’s base period were less than full time, and the claimant is able to work and available for and actively seeking work for a number of hours comparable to the number of hours worked during those weeks; or

A majority (more than 50%) of the weeks worked during the claimant’s base period were less than full time, and the claimant is able to work and available for and actively seeking work for a number of hours that is less than and not comparable to the number of hours worked during those weeks due to circumstances that constitute good cause within the meaning of 26 M.R.S. Section 1192-A; or

3. The majority of the weeks worked during the claimant’s base period were full time but the claimant is only able and available for less than full-time work due to the illness or disability of the claimant’s immediate family member. The Bureau may require verification of such illness or disability through the provision of documentation as prescribed by the Bureau. Such documentation may include but not be limited to verification from a medical professional.

If a claimant under this sub-paragraph has returned to work and is working the full number of hours for which the claimant is able or available to work considering the illness or disability of an immediate family member, that claimant is not considered “partially unemployed” for purposes of sub-section 3 of Section 1191and is not entitled to prorated benefits; or

4. The majority of the weeks worked during the claimant’s base period were full time but the claimant is only able and available for less than full-time work and the claimant’s limited availability is necessary for the safety or protection of the claimant or the claimant’s immediate family member, including protection from domestic abuse as defined in Chapter 1, Section 1, paragraph W of these regulations.

If a claimant under this subparagraph has returned to work and is working the full number of hours for which the claimant is able or available to work considering the safety or need to protect him or herself or an immediate family member, that claimant is not considered “partially unemployed” for purposes of subsection 3 of Section 1191 and is not entitled to prorated benefits; or

5. The majority of the weeks worked during the claimant’s base period were full time but the claimant is only able and available for less than full-time work due to circumstances that constitute good cause within the meaning of 26 M.R.S. Section 1192-A.

C. TRANSPORTATION AND DISTANCE

In order to be considered available for work, a claimant must have a means of transportation to get to a job or to an area in which there are sufficient job opportunities. The claimant must be willing to travel a reasonable commuting distance for people living in the same area as the claimant or the distance of the claimant’s usual commute, whichever is further. Factors to be considered in determining whether this requirement has been satisfied shall include, but are not limited to, method of transportation; availability of public transportation; availability of alternative means of transportation, such as carpooling; demonstrated ability to obtain transportation to work; and the nature of the employment being sought.

D. TRAINING AND EXPERIENCE

The claimant's training and experience in relation to the type of work sought must be taken into consideration in determining whether or not the claimant meets the availability requirements of the Employment Security Law.

E. ATTENDANCE AT SCHOOL

Attendance at school is not automatically a restriction on availability. Each case must be examined individually in order to determine what effect the schooling has on the claimant's availability. In making such a determination, the deputy will consider, but will not be limited to, the following factors on a case-by-case basis:

1. Days of week and hours of the day of class attendance;

2. Whether the claimant previously worked full time while attending school;

3. Whether the claimant would leave school in order to accept employment; and

4. Whether the claimant would change his the claimant’s class schedule in order to accept employment.

F. LENGTH OF UNEMPLOYMENT

The claimant's length of unemployment is also a factor which would be used in determining the type of work for which the claimant should be expected to be available. For a claimant who has only recently separated from work, it would normally be reasonable if he the claimant sought work that was closely related to the claimant’s most recent job or to a type of work in which he or she had prior training and experience. However, as the length of unemployment increases, the claimant should increase his or her availability by seeking types of work less directly related to the claimant’s previous training and experience.

G. ABSENCE FROM LABOR MARKET AREA

In order to be considered available for work, a claimant must be present in the claimant’s labor market area during each day of the customary workweek for the occupation in which the claimant is normally employed. A claimant who is absent from the labor market area for one or more of the days of the customary workweek in that occupation will be ineligible from receiving benefits for the week in question unless the claimant can show good cause for his or her absence from the labor market area or can show that he or she was capable of returning to the labor market area in time to report for the next available shift in his or her occupation at all times during the absence.

For purposes of this provision, “the occupation in which the claimant is normally employed” refers to the claimant’s normal trade, occupation, profession or business or, for claimants seeking work in a trade other than that in which they are normally employed, an alternate trade, occupation, profession or business in which the claimant is seeking employment and for which the claimant’s prior training or experience shows the claimant to be fitted or qualified.

An exception to the above requirement would be claimants who travel outside their local labor market areas to seek work. Factors to be considered in determining whether a claimant has travelled outside their local labor market area to seek work shall include, but are not limited to:

The nature of the occupation being sought;

The claimant’s past occupation(s);

The claimant’s past experience working in the occupation being sought;

The claimant’s general ability to perform work in the occupation being sought;

5. The claimant’s past experience working in the geographic area where work is being sought; and

6. Demonstrated efforts by the claimant to attach him or herself to the new labor market, such as registration at a state job service or with employment agencies in the area in which employment is being sought.

H. INCARCERATION

A claimant shall not be eligible for payment of unemployment compensation benefits for any weeks of unemployment during which the claimant is incarcerated after a conviction. A person is “incarcerated” if they are sentenced and committed to, transferred to, or detained in a correctional facility or jail.

3. SELF-EMPLOYMENT

An individual whose primary objective is performing services in self-employment will not be considered to be an unemployed individual for purposes of subsection 17 of Section 1043 of the Employment Security Law. "Primary objective" means that the individual is engaging in or in the process of establishing a self-employment venture and is not available for and/or willing to work as an employee for another employer on a full-time basis.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. Sec. 1082(2) and 26 M.R.S.A. Sec. 1192-A.
• EFFECTIVE DATE: January 29, 1986
• AMENDED: March 27, 1987 - Sec. 2.F
• AMENDED: May 4, 1987 - Sec. 3
• AMENDED: October 2, 1989 - Sec. 2.G
• AMENDED: May 30, 2000 - Sec. 2.A
• AMENDED: January 1, 2004, filing 2003-487 (EMERGENCY, expires March 31, 2004)
• AMENDED: March 27, 2004 - filing 2004-97
• NON-SUBSTANTIVE CORRECTIONS: June 17, 2004 - spelling in Section 2.H, punctuation in Section 9.B
• AMENDED: August 16, 2026 – filing 2026-183
• NONSUBSTANTIVE CORRECTION (spelling correction): August 28, 2026
• NONSUBSTANTIVE CORRECTION (spelling correction): 12-172 Chapter 9 page 5

Chapter 10 Work Search Requirements

Code Me. R. 12-172 Ch. 10 Work Search Requirements {#sec-12-172-ch.-10 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 10}

1. Work Search

A. There are many factors that will affect the type of work search a claimant should conduct. These include the claimant's usual occupation or customary work, other occupations in which the claimant has training or experience, the claimant's educational background, the number of potential job openings in the area in which the claimant is able and available to commute, as per Chapter 9 of these Rules, and the length of unemployment. The deputy will consider, but will not be limited to, the above listed factors and the following factors on a case-by-case basis:

1. Method of Contact

Claimants are required to actually contact employers in order to be considered to have conducted a work search. A combination of methods, including soliciting and filing of job applications, sending letters and resumes, whether in person, by regular mail, or by email, registration with the CareerCenter Job Bank and the use of employment agencies are considered effective means of conducting a work search. Use of the internet for job searching is appropriate but simply browsing the internet, without actually making contact with employers, does not meet the work search requirement.

2. Length of Unemployment

The claimant's length of unemployment is an important factor related to the work search process. Claimants who have been unemployed for less than ten weeks may make contacts in fields closely related to their customary work. Claimants who have been unemployed for ten weeks or longer, must increase their efforts to seek work, including making contacts in fields outside of their customary work.

3. Number of Contacts

Claimants are required to seek work each week. While claimants are not required to make a minimum number of contacts per week, they must make a conscientious effort that a reasonably prudent individual would use to obtain the type(s) of employment being sought.

4. Reporting Work Search Contacts

Claimants opening initial or additional initial claims, or reopening claims must keep track of their work search efforts in writing in a form that can be produced as requested by the Bureau. Claimants may use the Work Search Log provided by the Bureau or some other form of written record that contains, at a minimum the date of each contact with a potential employer, the name of the employer contacted and a verifiable contact for each employer. Claimants may retain a copy of submitted applications as proof of contact. If applying online, claimants must record the internet addresses in their Work Search Logs. Claimants are required to keep their work search logs for a period of one year from the date of receipt of unemployment benefits.

Upon request, the claimant must mail a copy of the completed Work Search Log and accompanying materials to the Bureau by the date requested. Failure to produce the Work Search Log by the date requested may result in denial of benefits for the period of time covered by the Work Search Log.

B. Work Search Waivers

The work search requirement is waived for any week in which the claimant is participating in the following mandatory services as directed by the Bureau:

1. Reemployment services, pursuant to 26 M.R.S. Section 1192(12);
2. Reemployment eligibility assessment services (“REA”), pursuant to 26 M.R.S. Section 1192(13).

The work search requirement is waived for any week in which the claimant is participating in the following voluntary services or programs:

1. A Job Fair hosted by the Maine Department of Labor, or a Job Fair at which the Maine Department of Labor is participating. The claimant must obtain written certification from a representative of the Department that the claimant was in attendance. The claimant must keep this certificate as part of the Work Search Log for the week of the Job Fair attended.

2. A meeting, training, workshop or other activity relating to seeking employment that is designated by the Maine Department of Labor as meeting the work search requirement. The claimant must obtain a certificate from the Department that the activity or event in issue meets the work search requirement and will allow for the waiver of the work search requirement. The claimant must keep this certificate as part of the Work Search Log for the week of the event attended.

3. The Bureau may waive the requirement that a claimant must be actively seeking work for the following classes of claimants:

a. Claimants involved in a mass temporary lay-off;

b. Claimants filing for partial benefits on a ME B-9 form;

c. Claimants involved in a strike, lockout, or other dispute who have not requalified in accordance with Section 1193, subsection 4, paragraph C of the Employment Security Law;

d. Claimants who have been laid off from work due to a lack of work and who have a definite offer of recall to work with that same employer within 6 weeks of that layoff date so long as such recall date is confirmed by the employer; and

e. Claimants who have accepted an offer of permanent full time new employment with assurance of it commencing within two (2) weeks. This two (2) week period will be extended an additional two (2) weeks only if the claimant provides written assurance from the new employer that he will be employed within the additional two (2) week period.

4. In circumstances other than those described in subsection 3, the Director of the Bureau of Unemployment Compensation may waive the requirement that a claimant or a class of claimants must be actively seeking work when the Director finds that compliance with the requirement would be oppressive and inconsistent with the provisions of the Employment Security Law.

C. Disqualification After Warning

Prior to being denied benefits for failure to conduct a work search, the Bureau will send written notification informing claimants that their work search efforts have been determined to be inadequate. Following this warning, the Bureau will schedule a review to determine if the claimant has been conducting an adequate work search since the time of the warning. If the Bureau determines that the claimant’s work search has not been adequate, the claimant shall be disqualified from receiving benefits. Claimants who fail to perform an adequate work search as set forth in this Chapter shall be denied benefits for each week in which the search was determined to be inadequate. Claimants will only be entitled to a warning prior to disqualification for one instance. Claimants who have been previously warned of inadequate work search will be subject to immediate disqualification for any subsequent determination of inadequate work search.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. Sec. 1082 (2) and 1192(3)
• EFFECTIVE DATE: June 29, 1986
• AMENDED: March 27, 1987
• NON-SUBSTANTIVE CORRECTIONS: June 20, 2000 - converted to MS Word
• AMENDED: February 23, 2015 – filing 2015-017
• NON-SUBSTANTIVE EDIT: October 30, 2024 – Rule header on page 1 amended to identify the agency unit of jurisdiction

Chapter 11 Deputy Determinations

Code Me. R. 12-172 Ch. 11 Deputy Determinations {#sec-12-172-ch.-11 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 11}

1. Definitions.

A. For the purposes of determinations made under subsection 2 of Section 1194 of the Employment Security Law, the following words and phrases shall have the following meanings:

1. A "nonmonetary determination" is a decision which is made by a deputy which affects the past, present or future benefit rights of a claimant, except a "Notice of Potential Benefit Charge" or the determination of the claimant's weekly benefit amount and maximum benefit amount.

2. "During the period a claimant is receiving benefits" means a period during which a claimant files a series of consecutive claims beginning with a claim for which the claimant has received a waiting period credit or has been paid a benefit payment and during which he or she continues to be paid.

3. An "issue" is a question involving a claimant which may affect his or her past, present or future benefit rights.

4. A "separation issue" is an issue which relates to the reason that a claimant is no longer employed.

5. A "nonseparation issue" is an issue which is not related to a reason that a claimant is no longer employed.

6. "New information" means information, either in whole or in part, that was not previously known to the deputy.

7. A "new issue" is an issue which was not previously raised with the deputy and involves a potential denial of or disqualification for benefits under the Employment Security Law.

8. A "monetary determination" is a decision made by a deputy which determines the claimant's weekly benefit amount and/or maximum benefit amount based on wages earned in the claimant's base period.

9. For purposes of making charges under 26 M.R.S.A. Section 1221(3)(C), "most recent subject employer" includes the separating employer or an employer which has caused a claimant's partial unemployment. Therefore, when an unemployed individual is employed by an employer on a part-time or on-call basis, any partial benefits paid to the claimant shall not be charged to the experience rating record of the part-time employer unless it is determined that the part-time employer has contributed to or been a causative factor in the claimant's level of unemployment, and as long as such employer continues to provide the level of work agreed upon in the hiring arrangement. Benefits paid to eligible claimants who are working under such employer arrangements shall be charged to the experience rating record of a prior otherwise chargeable employer or to the General Fund in accordance with Section 1221(3)(A). This rule shall not be construed to prevent charges to employers who have entered into arrangements involving a substantial variation in hours worked by an individual.

10. Basis for Nonmonetary Determinations.

Nonmonetary determinations will be based on reliable information, shall indicate the type and disposition of the issue or issues raised, and shall contain the material facts which were considered in arriving at the determination and the legal result.

3. Deputy's Decisions; Notice of Potential Benefit Charge; Appeals.

All deputy determinations of claimant eligibility and qualification for benefits, including determinations that separation was due to lack of work, shall be in writing and shall be mailed to the claimant and the claimant's most recent employer in the form of a Deputy's Decision. All such decisions shall include a notice to the employer that its experience rating record shall be charged with benefits paid to the claimant, if appropriate. Separate notices of potential benefit charges shall be issued to a chargeable employer only in the event such chargeable employer is not the claimant's most recent employer. The Deputy's Decisions shall also include a notice to the claimant and the employer that the decision may be appealed by either party to the Division of Administrative Hearings in writing within fifteen (15) days after the decision was mailed. Such appeal period may be extended for up to an additional fifteen (15) days for good cause shown. Upon timely appeal from a Deputy's Decision, the Division of Administrative Hearings shall conduct a hearing and issue a decision in accordance with Chapter 5 of these rules.

4. Fact-Finding Interviews.

Whenever the employer informs the deputy, in writing prior to the date on which a Deputy's Decision becomes final, that the claimant's separation was not due to lack of work, or whenever the employer provides new information or otherwise raises a new issue, in writing either before or after the issuance of a Deputy's Decision, a fact-finding interview may be held if the deputy determines that such interview is necessary. Fact-finding interviews shall be held in accordance with this section.

A. Claimant is not in "Pay Status." When a separation or nonseparation issue is discovered, and it is not during the period a claimant is receiving benefits, a fact-finding interview will be scheduled. Notice will be provided, in writing, to all interested parties. Fact-finding interviews will be scheduled to be held not less than three (3), nor more than ten (10), working days after the date that the notice is mailed to the interested parties unless the notice period is waived in accordance with subsection C of this section.

B. Claimant is in "Pay Status." When a separation or nonseparation issue is discovered and it is during the period a claimant is receiving benefits, then the interested parties will be informed in writing of the date and time of the fact-finding interview to be scheduled in accordance with subsection 2 of Section 1194 of the Employment Security Law unless the notice period is waived in accordance with subsection C of this section.

C. Waiver of Fact-Finding Notice Period. The right to a notice period prior to the fact-finding interview, which is required by subsection 2 of Section 1194 of the Employment Security Law, may be waived if all interested parties waive, in writing or verbally, their right to a minimum of five (5) days notice. If an interested party verbally waives the notice period prior to the fact-finding interview, the waiver must be documented on the form on which the fact-finding interview is recorded and signed by a deputy.

D. Conduct of Interview. During the fact-finding interview, the employer shall be afforded the opportunity to present evidence with respect to the issue raised, and the claimant shall be afforded an opportunity to rebut such evidence. The claimant shall then be afforded the opportunity to present his or her own evidence subject to the employer's rebuttal. Thereafter, the deputy shall mail to the parties a written decision in accordance with sections 2 and 3 of this chapter. Such decision shall become final unless an appeal is filed pursuant to subsection 2 of Section 1194 of the Employment Security Law.

5. Situations in which Fact-Finding is not Required.

Fact-Finding interviews are not required in the situations listed in 26 M.R.S.A. Section 1194(2)(A). When these situations occur, the deputy may make a determination based on the facts which are included on the claimant's weekly claim card.

6. Multiple Determinations for the Same Claimant.

For the purposes of subsection 2 of Section 1194 of the Employment Security Law, "promptly examine all subsequent claims" means that the deputy will render determinations, at the same time, on all issues that are known when any one determination is rendered, unless a determination or determinations cannot be rendered because necessary information or documentation has not yet been received, or a determination cannot be rendered because of the provisions in subsection 7 of this Chapter. Determinations will be rendered at the earliest stage of unemployment as administratively feasible, after giving both the claimant and the employer the opportunity to provide facts.

7. Claims Involving a Continuing Issue

When rendering a determination under subsection 3 and subsection 7 of 1192 of the Employment Security Law, the deputy may impose a denial for an indefinite period of time, beginning with the effective date of the first week claimed in which the issue exists, and continuing until the claimant proves to the satisfaction of the deputy that the conditions causing the issue no longer exist. The claimant must provide whatever documentation is deemed necessary on forms prescribed by the deputy to verify that the condition no longer exists. The determination will contain language informing the claimant of the responsibility to provide such documentation and advise the claimant to contact the bureau when the condition which caused the denial of benefits no longer exists.

8. Future Claims Involving Same Issue While an Appeal is Pending.

If a deputy has rendered a determination under Section 1192 or subsections 4 or 5 of Section 1193 of the Employment Security Law, and there are claims for weeks subsequent to the week or weeks in which benefits were denied or the claimant was disqualified, the deputy will not render any additional determinations on the same issue until the appeal period for the original determination, reconsidered determination, redetermination, decision of the Division of Administrative Hearings or the commission, or a review by a court has expired.

9. Future Claims Involving a New Issue.

Claims for subsequent weeks shall be promptly examined while an appeal or the period allowed for the filing of an appeal is pending. If a new issue arises, a determination on the new issue will be rendered promptly, regardless of the status of any appeal.

10. Monetary Redeterminations.

A monetary redetermination authorized under subsection 10 of Section 1194 of the Employment Security Law may be based on an investigation initiated at the time the initial claim was filed or upon new or additional information discovered during the one-year period for which such redetermination is authorized. If the weekly benefit amount is increased, and the claimant has not been paid his or her maximum benefit amount, supplemental benefit checks will be issued. If the weekly benefit amount is reduced, and the claimant has not been paid his or her redetermined maximum benefit amount, no overpayments will be established for weeks which have already been paid. However, when the maximum total amount of benefits in the redetermination is less than the total amount of benefits which the claimant has been paid in that benefit year, the benefits which were paid in excess of the redetermined maximum total amount of benefits will constitute an overpayment subject to recovery under Section 1051 of the Employment Security Law.

11. Time Limit for Redetermination.

A redetermination under subsection 2 of Section 1194 of the Employment Security Law must be mailed on or before the finality date of the original determination.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. Sections 1082, 1192, and 1194
• EFFECTIVE DATE: March 27, 1987
• AMENDED: September 6, 1993
• AMENDED: May 30, 2000
• NON-SUBSTANTIVE CORRECTIONS: December 14, 2000
• NON-SUBSTANTIVE CORRECTIONS: August 29, 2001 - Sec. 6, last sentence
• AMENDED: March 27, 2004 - filing 2004-94
• NON-SUBSTANTIVE EDIT: October 30, 2024 – Rule header on page 1 amended to identify the agency unit of jurisdiction
• NON-SUBSTANTIVE EDIT: 12-172 Chapter 11 page 4

Chapter 12 Unemployment Compensation for Former Federal Civilian Employees (UCFE)

Code Me. R. 12-172 Ch. 12 Unemployment Compensation for Former Federal Civilian Employees (ucfe) {#sec-12-172-ch.-12 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 12}

1. Description.

The Unemployment Compensation for Former Federal Civilian Employees (UCFE) program is one under which former civilian employees of the Federal government file claims for unemployment compensation.

2. Benefits.

The payment or denial of benefits under the "UCFE" program shall be in accordance with 20 C.F.R. Part 609.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. § 1082(2).
• EFFECTIVE DATE: March 27, 1987
• NON-SUBSTANTIVE CORRECTIONS: June 20, 2000 - converted to MS Word
• NON-SUBSTANTIVE EDIT: October 30, 2024 – Rule header on page 1 amended to identify the agency unit of jurisdiction

Chapter 13 Unemployment Compensation for Ex-Service Members (UCX)

Code Me. R. 12-172 Ch. 13 Unemployment Compensation for Ex-Service Members (ucx) {#sec-12-172-ch.-13 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 13}

1. Description.

The Unemployment Compensation for Ex-Service Members (UCX) program is one under which former military employees of the federal government file claims for unemployment compensation.

2. Benefits.

The payment or denial of benefits under the "UCX" program shall be in accordance with 20 C.F.R. part 614.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. § 1082(2).
• EFFECTIVE DATE: March 27, 1987
• NON-SUBSTANTIVE CORRECTIONS: June 20, 2000 - converted to MS Word
• NON-SUBSTANTIVE EDIT: October 30, 2024 – Rule header on page 1 amended to identify the agency unit of jurisdiction
• NON-SUBSTANTIVE EDIT: 12-172 Chapter 13

Chapter 14 Education Institution Employees

Code Me. R. 12-172 Ch. 14 Education Institution Employees {#sec-12-172-ch.-14 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 14}

12 DEPARTMENT OF LABOR

172 BUREAU OF UNEMPLOYMENT COMPENSATION Chapter 14: EDUCATION INSTITUTION EMPLOYEES

INTRODUCTION

This Rule provides guidance on whether an individual has a contract or reasonable assurance during an established and customary vacation period or holiday recess to work for an educational institution when school resumes for purposes of determining whether the individual is eligible for unemployment benefits.

Definitions.

For purposes of subsection 7 of section 1192 of the Employment Security Law (26

M.R.S. § 1192(7)), the following terms shall have the following meanings:

"Written reasonable assurance" means a written communication in which an educational institution or educational service agency assures an individual employee that they will perform services for the educational institution or educational service agency during a subsequent term or school period after an established and customary vacation period or holiday recess ends as set forth in section 2 below.

“Any other capacity for an educational institution” means employees employed in a non- professional capacity. Employees in this category perform services in other than instructional including adjunct faculty, research, or principal administrative capacity services.

"Benefits based on services" means the benefits for which eligibility was determined pursuant to subsection 5 of section 1192 of the Employment Security Law (26 M.R.S. § 1192(7)) on the basis of wages paid in a claimant's base period by educational institutions or educational service agencies.

"Contract" means a written agreement that an individual will perform services in an instructional, research or principal administrative capacity for any educational institution, as defined in subsection 29 of section 1043 of the Employment Security Law (26 M.R.S.

§ 1043(29)), or for any educational service agency, as defined in paragraph D of subsection 7 of section 1192 of the Employment Security Law (26 M.R.S. § 1192(7)(D)).

"Educational institution" means any school, including nursery schools and schools of higher education, which is licensed by the State and which provides an organized course of study designed to transfer knowledge, skills, attitudes or abilities under the guidance of a teacher. A “nursery school” has the same meaning as in 22 M.R.S. § 8301-A(1-A((D) and provides a curriculum of educational instruction provided by appropriately licensed teachers.

"Established and customary vacation periods or holiday recesses" means those vacation periods or recesses which the local authority having control of the school system has customarily included in the school system schedule.

“Instructional, research or principal administrative capacity for an educational institution” are employees employed in a professional or professional capacity. This means instructional including adjunct faculty, research, or principal administrative capacity employees.

Written reasonable assurance.

In the absence of a contract described in Section 3 below, reasonable assurance must be in writing and must have all of the following:

1. No contingencies within the employer’s control. Enrollment, funding, and seniority are not considered to be within the employer’s control. Decisions as to allocation of funding are considered to be within the employer’s control;

2. Totality of the circumstances must show it is highly probable a job is available in the next term or year;

3. Highly probable that any contingencies will be met based on prior history;

4. A genuine written offer from an individual with actual authority to offer employment;

5. Employment in the same capacity as defined in the definitions; and

6. Pay and benefits in the following year are not considerably less when compared to the prior year. If pay and benefits for the following year or term are less than 90% of pay and benefits for the current year, the Department will presume that the requirement for reasonable assurance has not been met. When making determinations involving a written reasonable assurance, the bureau shall take into consideration the claimant’s prior employment history and pattern of employment.

Contract.

A contract must be enforceable, non-contingent, and for an academic year or term or on an annual basis.

Furthermore a contract must be:

A genuine written offer from an individual with actual authority to offer employment;

Employment in the same capacity (either professional or non-professional, see definitions in section 1(B) and 1(G)) and;

Pay and benefits in the following year are not considerably less when compared to the prior year. When making determinations involving written reasonable

assurance, the bureau shall take into consideration the claimant's prior employment history and pattern of employment.

Individuals under contract with an educational institution will not be considered unemployed for the duration of the contract and will be denied benefits until the agreed- upon contract period ends.

Note: A contract is not required. If there is a contract that meets Section 3, that contract is deemed to fulfill the requirements of reasonable written assurance.

Eligibility for Benefits during the customary vacation period or holiday recess period or between terms.

An individual is not eligible for unemployment benefits for established and customary vacation period or holiday recess periods if such individual performs services immediately before and has written reasonable assurances or a contract and will perform such services immediately following the end of the customary vacation period or holiday recess period. The agency will consider the totality of the circumstances to determine whether reasonable assurance or a contract exists.

If an educational employee is separated from employment with an educational institution during the term, normal unemployment compensation eligibility guidelines apply.

Wages from educational institutions and educational service agencies.

For purposes of subsection 7 of section 1192 of the Employment Security Law (26

M.R.S. § 1192(7)), if an individual has base period wages from more than one educational institution or educational service agency, the agency shall review whether the individual has a contract or written reasonable assurance with all employers in the base period. If a contract or written reasonable assurance exists with individual educational employers, the wages earned on the basis of that employment may not be used to establish monetary eligibility during an established and customary vacation period or holiday recess. Any wages earned from an educational employer that are not subject to contract or written reasonable assurance, or wages from non- educational employers in the base period may be used to establish eligibility for benefits.

Change in capacity of employment.

If an individual performs services for an educational institution in one capacity, in either

a) an instructional, research or principal administrative capacity, or b) any other capacity, in one academic year or term, and is given a contract or written reasonable assurance in the opposite capacity for any educational institution in the next or a subsequent academic year or term, the provisions of subsection 7 of section 1192 of the Employment Security Law (26 M.R.S. § 1192(7)) shall not apply between such academic years or terms.

Effective date of contract or written reasonable assurance.

A contract or written reasonable assurance shall be deemed to be effective on the date on which it is offered. If the contract or written reasonable assurance is offered during a period between academic years or terms, benefits shall not be denied under the provisions of subsection 7 of section 1192 of the Employment Security Law (26 M.R.S. § 1192(7)) for any weeks prior to the week in which the contract or written reasonable assurance was offered.

If an individual working in an instructional, adjunct, research or principal administrative capacity (professional capacity) is denied benefits due to written reasonable assurance or a contract and is later not offered the opportunity to perform such work, benefits may be allowed going forward only. Benefits are allowed going forward from the date that the employer reasonably knew that the work would not be available, not the date that revocation of reasonable assurance or revocation of contract was provided to the claimant. If an individual working in any other capacity (non-professional capacity) is denied benefits due to written reasonable assurance or a contract and is later not offered the opportunity to perform such work, benefits may be allowed going forward, as well as retroactively to the point of denial as long as the claimant filed timely weekly claims for benefits during the period of denial.

Applicability to adjunct faculty.

The agency will consider the totality of the circumstances to determine whether written reasonable assurance or a contract applies to adjunct faculty. When reviewing the offer of employment after the end of a established and customary vacation period or holiday recess, the department shall consider the following factors to determine whether benefits are payable which include, but are not limited to:

• Employment history and patterns for the course or courses offered to determine the probability of the reasonable assurance materializing;
• The structure of the terms across the academic year established by the educational institution to determine if or when an established and customary vacation period or recess exists;
• Any contingencies attached to the offer of written reasonable assurance and to what extent they are within the control of the employer as such terms are defined herein; and
• Whether the adjunct faculty has other (full-time) employment, such that they are not unemployed as set forth in subsection 17 of section 1043 of the Employment Security Law (26 M.R.S. § 1043(17)).

Substitute teachers.

An individual who is employed in an instructional capacity by an educational institution for the purpose of replacing a teacher in that same capacity who is temporarily absent shall be termed to be a “substitute teacher.” If such an individual has a contract or written reasonable assurance that he will serve as a “substitute teacher” for one or more educational institutions for an academic year or term, or two successive years or terms, he shall be deemed to be subject to the provisions of subsection 7(A) of section 1192 of the Employment Security Law (26 M.R.S. § 1192(7)(A)) and section 4 of this rule and the analysis set forth herein.

Other substitute employees.

For purposes of subsection 7 (B) of section 1192 of the Employment Security Law (26

M.R.S. § 1192(7)), an individual who is employed in a substitute capacity in a non-professional position shall be deemed to be "not offered an opportunity to perform the services for the educational institution for the 2nd of those academic years or terms" when one of the following occurs and benefits may be payable under section 4, subsection 3 of this rule:

Whenever, during the academic year or term, the claimant is notified, or evidence is presented that the individual has not worked and will not be offered an opportunity to perform services for the educational institution during the remainder of that academic year or term; or

The 2nd of those academic years or terms is completed and the individual did not perform any services for the educational institution during that 2nd academic year or term.

Appendix I to Bureau of Unemployment Compensation Rule Chapter 14

Educational Institution Employees

Determining if the Between and Within Terms Denial (BWTD) Applies

Yes to all three questions Continue to Contract Test

No to one or more question(s)

Continue to Reasonable Assurance Test

BWTD applies and benefits are denied

No to one or more question(s) BWTD does not apply

Follow non-educational institution eligibility requirements

BWTD does not apply

Follow non-educational institution eligibility

Is there a genuine offer (oral, written, or implied)?

Is the employment in the same category (professional, non-professional)?

Are the pay and benefits at least 90% of those for the previous academic term/year?

No to one or more question(s)

Is the offer:

Enforceable?

Non-contingent?

For the next academic term or year?

Yes to all three questions

1. Are the contingencies, if any, beyond the employer’s control?
2. Is it highly unlikely that the contingencies will occur?
3. Do the totality of the circumstances indicate that it is highly probably that a job will be available in the next term or year

History

• STATUTORY AUTHORITY: 26 M.R.S.A., Section 1082, Subsection 2. EFFECTIVE DATE:
• STATUTORY AUTHORITY: October 2, 1989
• AMENDED: May 30, 2000
• NON-SUBSTANTIVE CORRECTION: August 29, 2001 - heading for Sec. 2
• REPEALED AND REPLACED: May 25, 2024 – filing 2024-125

Chapter 15 Benefit Payments to Athletes

Code Me. R. 12-172 Ch. 15 Benefit Payments to Athletes {#sec-12-172-ch.-15 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 15}

1. For purposes of subsection 10 of section 1192 of the Employment Security Law, the following terms shall have the following meanings:

A. "Athletes" shall mean those persons who are players on the roster of a sports team, either on the active player roster or in a reserve capacity.

B. "Reasonable assurance" means a written, verbal or implied agreement, or an accepted practice of the sport or athletic event.

C. "Substantially all" means that at least eighty percent (80%) of an athlete's total time in covered services during the base period consists of participating in, training, or preparing to participate in sports or athletic events.

History

• STATUTORY AUTHORITY: 26 M.R.S.A., Section 1082, Subsection 2
• EFFECTIVE DATE: October 2, 1989
• NON-SUBSTANTIVE CORRECTIONS: June 20, 2000 - converted to MS Word
• NON-SUBSTANTIVE CORRECTIONS: December 14, 2000 - restored a missing quotation mark
• NON-SUBSTANTIVE EDIT: October 30, 2024 – Rule header on page 1 amended to identify the agency unit of jurisdiction
• NON-SUBSTANTIVE EDIT: 12-172 Chapter 15

Chapter 16 Benefit Payments to Aliens

Code Me. R. 12-172 Ch. 16 Benefit Payments to Aliens {#sec-12-172-ch.-16 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 16}

1. Nondiscrimination

A. Any individual who requests a determination of insured status will be required to certify whether or not he or she is a citizen of the United States. The claims taker may not question the individual concerning his or her citizenship status if such questioning is based on race, color, ancestry or national origin.

2. Documentation

In order to meet the requirements of subsection 11 of section 1192 of the

Employment Security Law , an alien must present the claims taker with copies of the following documentation which is issued by the United States Department of Homeland Security (DHS) or any agency therein:

1. Alien Registration Receipt Card, and

2. Arrival-Departure Record, or

3. Other documents as approved by DHS.

The agency shall contact DHS to verify these documents.

B. If an alien presents documents other than those listed in (A) above, or states that he or she is authorized to work after the beginning of the base period but has no documentation with him or her, the agency shall contact the United States DHS for verification.

C. If an alien does not have any documentation issued by the United States DHS which would verify his or her alien status during his or her base period, no determination of monetary eligibility will be made until the alien has had a reasonable opportunity to obtain such documentation. The agency will assist the alien in the process of obtaining such documentation. If, after a reasonable time, the alien is not able to provide documentation which would verify that he or she meets the requirements of subsection 11 of section 1192 of the Employment Security Law , a determination of monetary ineligibility will be made.

3. Preponderance of Evidence

A. For purposes of subsection 11 of section 1192 of the Employment Security Law , the term "preponderance of evidence" shall mean evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.

4. Availability for work

A. An alien who does not meet the documentation criteria which are contained in subsection (2) above shall not be considered to meet the availability for work requirements of subsection 3 of section 1192 of the Employment Security Law .

History

• STATUTORY AUTHORITY: 26 M.R.S. Section 1082, Subsection 2
• EFFECTIVE DATE: October 2, 1989 – filing 89-393 as “Rules Governing the Administration of the Employment Security Law”
• AMENDED: May 30, 2000 - filing 2000-222 as “Benefit Payments to Illegal Aliens”
• AMENDED: December 9, 2017 – filing 2017-190 as “Benefit Payments to Aliens”
• NON-SUBSTANTIVE EDIT: October 30, 2024 – Rule header on page 1 amended to identify the agency unit of jurisdiction

Chapter 17 Voluntary Leaving

Code Me. R. 12-172 Ch. 17 Voluntary Leaving {#sec-12-172-ch.-17 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 17}

1. Leaves of absence.

When making determinations under subsection 1 of section 1193 of the Employment Security Law in cases involving a leave of absence, factors to be considered may include, but will not be limited to, the following:

A. Whether the claimant received any wages, continuation of health or other insurance coverage or other benefits while on leave of absence.

B. The claimant's seniority status with the employer.

C. The employer's policy concerning the granting of leaves of absence.

D. The employment status of the claimant at the end of the leave of absence.

E. Any contractual agreements between the claimant and the employer.

F. The reason that the leave of absence was requested.

G. Whether the leave of absence was for a definite or indefinite period.

H. If applicable, the reason that the claimant filed a claim for unemployment benefits prior to the end of the leave of absence.

I. The employer's and the claimant's intentions with regard to the claimant's employment status at the termination of the leave of absence.

2. Leaving work due to on-the-job illness/injury.

A. Determinations. When making determinations whether the claimant's leaving was with good cause attributable to the employment under subsection 1 of section 1193 of the Employment Security Law in cases involving an illness or injury which occurs on the job, factors to be considered may include, but will not be limited to, the following:

1. The circumstances under which the illness/injury occurred.

2. Whether the employer violated any governmental safety standards.

3. Whether the claimant violated any governmental safety standards or employer safety standards or rules.

4. Whether the claimant filed a claim for Workers' Compensation benefits.

B. Experience rating record. If a claimant leaves work due to an on-the-job illness or injury, factors to be considered may include, but will not be limited to, the following in determining whether the employer's experience rating record will be charged with benefits paid under subsection 3(A)(1) of section 1221 of the Employment Security Law:

1. The circumstances under which the illness or injury occurred.

2. Whether the illness or injury was caused by a condition of which the employer knew or should have known.

3. Leaving work due to illness.

A claimant who leaves work due to the illness or disability of the claimant or an immediate family member and who files an initial or additional claim before the claimant is able or available to return to work and request reemployment shall have the determination of eligibility under section 1193 deferred until such time as the claimant is able to work and available for full-time work. A determination shall be rendered which denies benefits under subsection 3 of section 1192 of the Employment Security Law and which gives notice of the deferral of a qualification determination under section 1193 of the Employment Security Law.

4. Leaving work due to wages.

When making determinations under subsection 1 of section 1193 of the Employment Security Law in cases in which the claimant's reasons for leaving employment were due in whole or in part to wages, factors to be considered may include, but will not be limited to, the following:

A. Whether the claimant was paid wages which were in compliance with the State and/or Federal wage laws.

B. The rate of pay which the employer agreed to pay, and the reason(s) that the employer did not pay at the agreed upon rate.

C. The reason for any reduction in pay during the period of employment.

D. Whether there had been any substantial changes in the claimant's assigned work duties without a corresponding change in the rate of pay.

E. Whether wages were paid at agreed upon times, and if not, the reason(s) for late payment.

F. Whether the claimant has communicated to the employer or a governmental body that there may be a violation of wage laws.

5. Leaving work due to work schedule.

When making determinations under subsection 1 of section 1193 of the Employment Security Law in cases in which a claimant's reasons for leaving employment were related to his or her work schedule, factors to be considered include, but will not be limited to, the following:

A. The claimant's previous work schedule(s).

B. The customary hours of employment for this type of work and for the claimant's co-workers or whether the number of hours worked exceeded those which are customary for similar work in the area.

C. Whether the work schedule was significantly different from the claimant's customary hours, and the reason for the change in the work schedule.

D. Whether the hours had been changed recently and whether the change was temporary or permanent.

E. Whether the work schedule had an adverse effect on the claimant's health or safety.

6. Leaving work due to harassment.

In making determinations under subsection 1 of section 1193 of the Employment Security Law, when it is known or believed that the claimant's reason for leaving employment was related to harassment, factors to be considered may include, but will not be limited to, the following:

A. The nature of the conduct.

B. The degree to which the conduct related to the employment.

C. Whether the conduct was repeated or was an isolated incident.

D. Whether the employer made any changes in the claimant's working conditions for retaliatory purposes.

E. How seriously the conduct was intended and/or perceived.

F. The efforts made by the employer and the claimant to control or adjust the situation.

G. The employment relationship between the claimant and the alleged harasser.

7. Leaving work to accept new employment.

For purposes of subsection 1 of section 1193 of the Employment Security Law, the following terms shall have the following meanings:

A. "Good faith" means that the claimant intended to commence working at and to continue working at new employment.

B. "Accept new employment on a permanent full-time basis" means that the claimant had been affirmatively offered employment on a full-time basis by the new employer. The claimant does not actually have to commence work with the new employer if the new employer either has postponed or withdrawn the job offer. However, it must be shown that a bona fide offer of work existed at the time the claimant separated from employment.

8. Leaving work to accompany, follow or join spouse.

A. For purposes of subsection 1 of section 1193 of the Employment Security Law, the following terms shall have the following meanings:

1. "Spouse" means a person to whom the claimant is legally married, or a person to whom the claimant was legally married within fourteen (14) days of arrival at the new place of residence.

2. "To accompany" means that the claimant will relocate at substantially the same time as the claimant's spouse.

3. "To follow" means that the claimant will relocate after the claimant's spouse has already left the area in which they previously resided.

4. "To join" means that the claimant will relocate to a residence that the claimant's spouse has already established.

5. "New place of residence" means a place other than that in which the claimant most recently lived, and in which the claimant intends to live for an indefinite period of time, and which is located at such a distance from the previous employment so as to render commuting unreasonable.

B. For purposes of subsection 1 of section 1193 of the Employment Security Law, factors to be considered may include, but will not be limited to, the following in determining if the claimant is attached to the new labor market:

1. Whether and to what extent the claimant has made efforts to seek employment.

2. Whether there are any restrictions which would prevent the claimant from accepting an offer of suitable work.

3. Leaving work to protect the claimant from domestic abuse.

A. For purposes of subsection 1 of section 1193 of the Employment Security Law in cases in which the claimant's reason for leaving employment was that such leaving was necessary to protect the claimant from domestic abuse, the fact of domestic abuse may be established by a preponderance of the evidence.

B. The filing of a civil or criminal complaint against or the criminal conviction of the alleged abuser shall not be required as a prerequisite in order to establish the fact of domestic abuse. Nor shall such complaint or conviction be required as "reasonable efforts to preserve the employment."

C. Upon an affirmative determination of the fact of domestic abuse, factors to be considered in determining whether the claimant made all reasonable efforts to preserve the employment may include, but will not be limited to, the following:

1. Whether the abuse occurred at the place of employment.

2. Whether, considering the type of abuse, the claimant was safe at the worksite and/or while commuting to and from the worksite.

3. Whether the abuser or the abuser's relatives or friends were co-workers of the claimant or otherwise present at the worksite.

4. Whether the abuse occurred as a consequence of the claimant going to work.

5. Whether the abuse itself interfered with the claimant's ability to work, travel, or prepare for work.

6. Whether the employer was informed either before or within a reasonable time after separation of the fact of the domestic abuse.

7. Whether the claimant needed to hide from the abuser at a shelter or elsewhere in order to be safe.

8. Whether the claimant left the geographic area to escape the abuse.

9. Whether the claimant requested reemployment with the employer upon return to the geographic area after having left or upon the cessation of the domestic abuse.

D. Each determination under this rule must be decided on its own merits taking into consideration the specific facts and circumstances of the claimant, the employment, and the abuse involved.

10. Volunteering for lay off

For the purpose of subsection 1 of section 1193 (A)(5) of the Employment Security Law in cases where an employee volunteers to be part of the lay off or reduction in force, factors to be considered may include, but not be limited to:

1. Whether the employee is actually on a leave of absence mutually agreed upon by the employer and the employee.

2. Whether the employee’s intent is to retire from the work with that employer, and if it was, then the separation would be considered a voluntary retirement under subsection 1 of section 1193 (B) of the Employment Security Law.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. Sections 1082, 1192, and 1194
• EFFECTIVE DATE: October 2, 1989
• AMENDED: September 6, 1993
• NON-SUBSTANTIVE CORRECTIONS: June 20, 2000 - converted to MS Word
• NON-SUBSTANTIVE CORRECTIONS: December 14, 2000 - Section 3 paragraph formatting
• AMENDED: March 27, 2004 - filing 2004-95
• NON-SUBSTANTIVE CORRECTIONS: June 17, 2004 - punctuation in Section 9.B
• NON-SUBSTANTIVE EDIT: October 30, 2024 – Rule header on page 1 amended to identify the agency unit of jurisdiction
• NON-SUBSTANTIVE EDIT: 12-172 Chapter 17 page 7

Chapter 18 Discharge

Code Me. R. 12-172 Ch. 18 Discharge {#sec-12-172-ch.-18 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 18}

1. Burden of proof.

A discharge is a termination of the employer-employee relationship which is initiated by the employer and which entitles a claimant to unemployment benefits unless he or she is discharged for misconduct under subsection 2 of section 1193 of the Employment Security Law. The burden of proof is on the employer to prove that the employee's conduct meets the statutory definition of misconduct.

2. Evidence.

When an employer provides substantial evidence that a claimant whom it discharged has engaged in criminal conduct in connection with the employment, evidence of conviction shall not be required in order to sustain a finding that the claimant has engaged in misconduct.

History

• STATUTORY AUTHORITY: 26 M.R.S.A., Sec. 1082
• EFFECTIVE DATE: October 2, 1989
• AMENDED: September 6, 1993
• NON-SUBSTANTIVE CORRECTIONS: June 20, 2000 - converted to MS Word
• NON-SUBSTANTIVE EDIT: October 30, 2024 – Rule header on page 1 amended to identify the agency unit of jurisdiction

Chapter 19 Other Remuneration

Code Me. R. 12-172 Ch. 19 Other Remuneration {#sec-12-172-ch.-19 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 19}

1. Definitions

For purposes of subsection 3 of section 1191 and of subsection 5 of section 1193 of the Employment Security Law , the following terms shall have the following meanings:

A. "Dismissal wages", "severance pay" and "terminal pay" means a payment made to an individual who has been dismissed by an employer, which payment is in addition to any wages which that individual has earned through the performance of services. A payment made to an individual as an incentive to either resign, retire, or accept an employer-initiated separation will be treated in the same manner as "terminal pay."

B. "Wages in lieu of notice" means a payment made to an employee who is being terminated without prior notice.

C. "Vacation pay" means payment from an employer for a period during which the individual is away from work and not required to perform services, regardless of how the employer identifies it. Its accrual is normally based on a set number of days or weeks for each year of employment.

D. "Holiday pay" means payment for one or more days that the employer has determined will be non-work days due to a special circumstance or event.

2. Period of Application

The types of remuneration which are defined in section 1 shall be allocated to the following periods of unemployment.

A. "Dismissal wages," "severance pay," and "terminal pay," and wages in lieu of notice will be applied to the week in which they are paid.

B. "Vacation pay" considered disqualifying under 26 M.R.S. Section 1193(5)(A-1) will be allocated to a period following separation which would be equivalent to the claimant's normal wages.

C. "Holiday pay" shall be allocated to the week in which the holiday occurs, regardless of when the "holiday pay" is paid.

D. If a claimant receives more than one of the types of remuneration defined in section 1 of this chapter during the same week, these types of remuneration shall be applied simultaneously to the week in which they are received.

3, [Not in use]

4. Supplemental Unemployment Benefits

Supplemental unemployment benefits are payments which are made as part of a written plan established by and maintained by an employer solely for the purpose of supplementing the unemployment compensation benefits of former employees. Such payments are in addition to unemployment compensation benefits which are paid under state or federal unemployment compensation laws, and are not "earnings" or "wages"' under subsection 3 of section 1191 or remuneration, under subsection 5 of section 1193 of the Employment Security Law .

5. Bonus Payments

Bonus payments are a form of wages under 26 M.R.S. Section 1043(19) and are normally paid for extraordinary work or as an inducement for increased performance. Bonus payments may be calculated and paid based on prior performance levels, normal wages, profit levels, or any other method. For purposes of subsection 5 of section 1193 of the Employment Security Law , "bonus payments" shall not be considered remuneration due to an individual as listed in that subsection. Bonus payments shall be considered earnings under subsection 3 of section 1191 with respect to the week or weeks in which the bonus payment was earned.

6. Back Pay Award

If a payment, which is awarded or authorized by the National Labor Relations Board, a court or any other administrative agency of government for any settlement of a dispute, is for, or equivalent to, wages for a specific period of time, then that payment will be considered to be wages with respect to the week or weeks which are covered by such award, provided that the payment is actually received by the claimant. If the claimant was paid benefits for any week or weeks covered by the award, then the deputy may reconsider the benefit payment for such week or weeks in accordance with subsection 10 of section 1194 of the Employment Security Law .

History

• STATUTORY AUTHORITY: M.R.S. Section 1082, Subsection 2.
• EFFECTIVE DATE: October 2, 1989 – filing 89-396 as “Rules Governing the Administration of the Employment Security Law”
• AMENDED: May 30, 2000 - filing 2000-223 as “Other Remuneration”
• NON-SUBSTANTIVE CORRECTIONS: August 29, 2001 - Sec. 2 first sentence, heading for Sec. 4, Sec. 5 first sentence
• AMENDED: December 9, 2017 - filing 2017-191
• NON-SUBSTANTIVE EDIT: October 30, 2024 – Rule header on page 1 amended to identify the agency unit of jurisdiction

Chapter 20 Unemployment Fraud or Misrepresentation by Claimants

Code Me. R. 12-172 Ch. 20 Unemployment Fraud or Misrepresentation by Claimants {#sec-12-172-ch.-20 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 20}

1. Unemployment fraud or misrepresentation

Unemployment fraud or misrepresentation exists where a claimant has made a false statement or representation knowing it to be false or knowingly fails to disclose a material fact in the claimant's application to receive benefits.

A finding of unemployment fraud or misrepresentation shall be made based on a preponderance of the evidence.

2. Investigation of cases of potential unemployment fraud or misrepresentation

The following procedures shall be used in the investi­gation of claims involving potential unemployment fraud or misrepresentation.

A. Obtaining documentary evidence. Prior to interviewing the claimant, the deputy shall obtain all available documentation.

B. Scheduling the interview. The deputy shall notify the claimant in writing of the date and time that the fact-finding interview will be held. Such notice shall be sent to the claimant's last known or given address, and shall include the following information: date, time and location of the interview; the facts which are known to the bureau; the claimant's right to request a postponement; the claimant's right to provide written information; the amount of any potential overpayment; and the consequences of a finding of unemployment fraud or misrepresentation. The interview will be scheduled no earlier than ten (10) days after the mailing date of the notice. If the notice is returned to the deputy because it cannot be delivered by mail, the deputy shall review all available records in order to determine if the address on the notice is the correct one. If another address is found, a new notice will be mailed to the claimant at such other address.

1. In-person interview. If the interview will be conducted in person, the notice will include the location of the interview.

2. Telephone interview. If the interview will be conducted by telephone, the notice will include the telephone number at which the claimant will be called, the time frame during which the claimant will be called, and the deputy's telephone number. In addition, a copy of all documentary evidence which the deputy has related to the potential unemployment fraud or misrepresentation will be forwarded to the claimant prior to the interview.

3. Period of ineligibility

For purposes of subsection 6 of section 1193 of the Employment Security Law, where the deputy determines that unemployment fraud or misrepresentation has occurred, and it is the first or second occurrence, the period of ineligibility will be not less than six (6) months nor more than one (1) year from the mailing date of the determination. In the case of a third occurrence, the claimant shall be disqualified from receiving benefits for a period of time to be determined by the Commissioner of Labor. The ineligibility for a third occurrence shall be for an indefinite time period unless the claimant submits a written request to the Commissioner seeking that the period of ineligibility be shortened or rescinded. The Commissioner will render a written determination. The length of the period of ineligibility is discretionary, and will be determined after a total consideration of all factors which are involved in the case, including but not limited to, the following:

A. Number of weeks of violation.

B. Amount of earnings which were unreported.

C. Whether the claimant failed to report any earnings at all, or under-reported his or her earnings.

D. Reason for failure to report any earnings.

E. Whether an unreported separation or false report of the reason for separation was involved.

F. The amount of the overpayment.

G. The existence of any previous final determina­tion(s) of unemployment fraud or misrepresentation involving the claimant.

4. Redeterminations

If a determination which is rendered under subsection 6 of section 1193 of the Employment Security Law is redetermined in order to correct the period of ineligibility, then the period of ineligibility will be changed in order to make the correction. If the redetermination is not the result of an incorrect period of ineligibility, then the period of ineligibility will not be changed in the redetermination.

5. Overpayment not due to unemployment fraud or misrepre­sentation

For purposes of subsection 10 of section 1194 of the Employment Security Law, the term "error" may include, but will not be limited to, the following situations which shall not constitute unemployment fraud or misrepresentation:

A. An error in identity.

B. In the absence of evidence of knowledge of falsity or knowing failure to disclose, a claimant's erroneous report of his or her earnings amount.

C. An error in computing the amount payable.

D. A claim that was paid which should not have been paid until a determination of the claimant's eligibility for that payment had been made.

E. Payment of a full or reduced benefit check due to a data entry error.

History

• STATUTORY AUTHORITY: 26 M.R.S. Section 1082, Subsection 2.
• EFFECTIVE DATE: October 2, 1989 – filing 89-397
• AMENDED: September 6, 1993 – filing 93-312
• AMENDED: May 30, 2000 – filing 2000-224
• NON-SUBSTANTIVE CORRECTION: August 29, 2001 - Sec. 2(B)
• AMENDED: March 27, 2004 - filing 2004-96
• AMENDED: December 9, 2017 – filing 2017-192
• NON-SUBSTANTIVE EDIT: October 30, 2024 – Rule header on page 1 amended to identify the agency unit of jurisdiction

Chapter 21 Pension Payments

Code Me. R. 12-172 Ch. 21 Pension Payments {#sec-12-172-ch.-21 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 21}

1. Pension Payments.

Under subsection 9 of section 1193 of the Employment Security Law, certain periodic payments which individuals receive will reduce, but not below zero, the amount of unemployment benefits which that individual is entitled to receive for that week. Such periodic payments will affect claims which are filed for the period in which the periodic payment is actually received, without regard to the period for which the periodic payment is designated as being paid. If a periodic payment is paid for a period in the past, the benefit payments which were made for that period shall not be reconsidered. Pension payments will include, but not be limited to, the following:

A. Private employer pension plan. This is a pension plan which is maintained by a private (non-governmental) employer for its own employees.

B. Pensions for former government (nonmilitary) employees. These are plans which are maintained by the state or municipal governments and the government of the United States for retirement and disability retirement payments.

C. Military pension. This is retirement pay which is paid to former military service personnel, based on years of service. For purposes of this subsection, a service-connected disability payment which is based on a disability and is not based on years of service would not be deducted from an individual's benefits.

D. Social Security benefits. These are payments which are made by the United States government under the Social Security Administration.

2. Determining employer's contribution.

For purposes of subsection 9 of section 1193 of the Employment Security Law, when both the individual and a base period or chargeable employer made contributions to the retirement pension plan, the following procedure will be used in order to determine the employer's percentage of the contributions to the plan:

A. Step 1: Subtract the employee's contributions to the plan from the established annuity value as determined by the employer or the employer's pension administrator.

B. Step 2: Divide the employer's contributions by the established annuity value.

3. Social Security benefits.

The following provisions will apply when the claimant is receiving benefits which are being paid through the Social Security Administration:

A. Primary Social Security Recipient. This is the individual who worked and earned the Social Security retirement benefit credits.

B. Spouse of Primary Social Security Recipient. This is the spouse of the individual who worked and earned the Social Security retirement benefit credits. If the spouse elects to receive a share of the primary recipient's retirement benefits, and that share is issued in the primary recipient's name, then the entire Social Security retirement check amount would be used to determine any amount which would be deducted from the primary recipient's unemployment benefits. If the claimant is not receiving any Social Security benefits in his name, then there would be no deduction from the claimant's benefits.

C. Spouse Entitled to Own Benefits. "Own benefits" is defined as benefits which are based on the recipient's own work. Under provisions of the Social Security Act, when a spouse is entitled to Social Security retirement benefits in his own right, and he elects to receive such benefits, that spouse must receive benefits based on his "own" entitlement first. An additional amount may be added to that spouse's benefits in order to equal the amount which would have been paid if that spouse had elected to receive a "share" of the primary recipient's benefits. If the spouse is a claimant, only that portion of the Social Security benefit payment which was based on his "own" retirement would be used in computing the amount which would be deducted from the claimant's unemployment benefits.

D. Widow/Widower Benefits. A claimant who, under the Social Security Act, receives "survivor" benefits which are based on their spouse's work would not have such benefits deducted from his unemployment benefits.

E. Social Security Payments for Dependents and Supplemental Security Income Payments. When a claimant receives, as a portion of his retirement benefits under the Social Security Act, an amount that is paid for his dependents or an amount that is paid as Supplemental Security Income, such payments would not be used in computing the amount which would be deducted from his unemployment benefits.

F. Deductions and Adjustments. If the amount of the claimant's Social Security retirement pension is reduced because of a deduction or adjustment, such changes or adjustments would not be considered in computing the amount of retirement pension which would be deducted from his unemployment benefits. These deductions and adjustments include, but are not limited to, the following: Medicare premiums, court-ordered child support payments, and offsets used to repay previous overpayments of Social Security benefits.

G. Computing Amount of Social Security Deduction. For purposes of paragraph A of subsection 9 of section 1193 of the Employment Security Law, the claimant shall be considered to have made 50.0 percent of the contributions into the plan under which Social Security retirement pension payments are made. The monthly payments will be converted to a weekly amount by obtaining 23% of the monthly payment.

4. Pension based on Military Service.

If an individual performed military service in his base period, and his is receiving military retirement pay which is based on the completion of the necessary number of years of service, his benefits would be reduced by such military retirement pay.

History

• STATUTORY AUTHORITY: 26 M.R.S.A., Section 1082, Subsection 2.
• EFFECTIVE DATE: October 2, 1989
• NON-SUBSTANTIVE CORRECTIONS: June 20, 2000 - converted to MS Word
• NON-SUBSTANTIVE EDIT: October 30, 2024 – Rule header on page 1 amended to identify the agency unit of jurisdiction
• NON-SUBSTANTIVE EDIT: 12-172 Chapter 21 page 3

Chapter 22 Extended Benefits

Code Me. R. 12-172 Ch. 22 Extended Benefits {#sec-12-172-ch.-22 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 22}

1. For purposes of section 1195 of the Employment Security Law, the following terms shall have the following meanings:

A. Under paragraph A of subsection 3-C, "gross average weekly remuneration" means the number of hours worked multiplied by the hourly wage, if the offered work is for a fixed number of hours at a fixed rate of pay. If the gross wages for the offered work vary, the "gross average weekly remuneration" shall be determined by the actual pay of workers who are doing the same or similar work over a period of time which would be of sufficient length to provide a fair indication of the wages which the individual could expect to earn.

B. Under subparagraph 2 of paragraph A of subsection 3-C, "supplemental unemployment benefits" means payments made as part of a written plan established and maintained by an employer and/or his employees solely for the purpose of providing payments to former employees who have been separated from work due to a reduction in force, the discontinuation of plant or operation or other similar situation. Such payments are in addition to unemployment benefits which are paid under state or federal unemployment compensation laws.

C. Under subparagraph (1) of paragraph C of subsection 3-C:

1. "Offered to the individual in writing" means that the prospective employer has furnished the individual with a written notice which will provide the individual with sufficient information so that the individual will be able to determine the conditions of employment.

2. "Listed with the employment service" means that the Job Service Division of the bureau has an active job order for the position in its files.

D. Under subparagraph (3) of paragraph C of subsection 3-C:

1. "Reasonably short period" means within four (4) weeks of the week for which a claim is filed.

2. "Satisfactory evidence" means written information which is submitted by the claimant, or an oral statement which is recorded on a Form Me. B-2.5, Claimant's Questionnaire, Form BD-4, Statement Supporting Deputy's Findings of Fact or on any other appropriate agency form. The deputy may verify the information which is provided by the claimant directly with the employer that has offered work to the claimant.

E. Under paragraph A of subsection 3-E:

1. A "systematic" effort means an effort to obtain work which is thorough, planned and takes into consideration the local labor market conditions and hiring practices. This effort must be one which could reasonably be expected to lead to offers of work.

2. A "sustained" effort to obtain work means an effort which is maintained steadily and at length without weakening. The effort to seek work must be conducted throughout the week. An individual who holds himself available for work but is not actively contacting employers in order to seek work shall not be considered to be making a "sustained" effort.

F. Under paragraph B of subsection 3-E, "tangible evidence" means a written list of employers that have been contacted in the claimant's effort to seek work. This list shall be written on the claimant's weekly claim form which is used to file a claim for benefits.

G. For purposes of subsection (E)(2) of this Chapter, "throughout the week" means contacting at least four (4) different employers on at least two (2) days of the week.

History

• STATUTORY AUTHORITY: 26 M.R.S.A., Section 1082, Subsection 2.
• EFFECTIVE DATE: October 2, 1989
• AMENDED: May 30, 2000
• NON-SUBSTANTIVE EDIT: October 30, 2024 – Rule header on page 1 amended to identify the agency unit of jurisdiction
• NON-SUBSTANTIVE EDIT: 12-172 Chapter 22 page 2

Chapter 23 Dislocated Worker Benefits

Code Me. R. 12-172 Ch. 23 Dislocated Worker Benefits {#sec-12-172-ch.-23 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 23}

1. For purposes of paragraph B of subsection 5 of section 1043 and paragraph A of subsection 4 of Section 1191 of the Employment Security Law, the following terms shall have the following meanings:

A. "Enrolled in a training program" means that a person must be enrolled in and actively attending a training program.

1. "Actively attending" means actual participation in one or more days of scheduled training during a week in which training is scheduled. Individuals will be considered actively attending training during scheduled semester breaks or holiday/vacation recess periods which do not exceed eight weeks.

B. An "initial enrollment" may include a short term evaluation or orientation program followed by a multi-component training program. Final termination would occur after an individual completes all of the various components in an individualized training program or when the individual has left the program and is not expected to return.

2. For purposes of subsection 6-C of section 1192 of the Employment Security Law, "adversely affected employment," means either the claimant's most recent substantive employment from which the claimant separated, excluding stop-gap employment, or the type of employment in which the claimant worked the most during the past 10 years, as appropriate.

History

• STATUTORY AUTHORITY: 26 M.R.S.A., Section 1082, Subsection 2.
• EFFECTIVE DATE: October 2, 1989
• AMENDED: May 30, 2000
• NON-SUBSTANTIVE EDIT: October 30, 2024 – Rule header on page 1 amended to identify the agency unit of jurisdiction

Chapter 24 Approved Training

Code Me. R. 12-172 Ch. 24 Approved Training {#sec-12-172-ch.-24 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 24}

1. Applicability.

Subsections 6 and 6-C of section 1192 of the Employment Security Law authorize the Bureau of Unemployment Services (“Bureau”) to approve training for claimants who are eligible for unemployment compensation or dislocated worker benefits. Upon the Bureau’s approval of such training, a claimant who is otherwise eligible for unemployment compensation benefits shall not be denied such benefits for any week due to the availability and work search requirements of subsection 3 of section 1192, nor for refusal to accept work under subsection 3 of section 1193. In addition, a dislocated worker, as defined in section 1196, of the Employment Security Law who is eligible for additional benefits under subsection 4(A) of section 1191, may not be denied benefits because the individual is in training approved by the Bureau, nor may that individual be denied benefits by reason of leaving work to enter such training, provided that the work left is not suitable employment. For purposes of approving training requests in accordance with subsection 6 and 6-C of section 1192, the Bureau shall use the procedures and standards set forth herein.

2. Application for approval.

A. Claimants involved in approved training under the United States Trade Act, the Governor’s Job Initiative, the Competitive Skills Scholarship Program, or the Workforce Innovation and Opportunity Act may not be denied benefits for any week due to requirement pertaining to availability, work search or refusal of otherwise suitable work. The Bureau of Employer Services or the Bureau of Rehabilitation Services will grant the training waiver and notify the Bureau of Unemployment Compensation. No further fact-finding or analysis is required with respect to approved training under those laws and programs.

.

B.. An individual claimant requesting approval of training must provide the Bureau with the following information:

The claimant’s name, address and social security number;

Whether the claimant is claiming unemployment benefits or dislocated worker benefits;

A description of the claimant’s vocational goal and how the training program will assist the claimant in attaining his or her vocational goal;

The number of hours during the week that the claimant will be attending the training program as well as the number of hours during the week that the claimant anticipates spending on homework or assignments;

Whether the claimant receives or will receive remuneration for time spent in the training program and, if so, the source of the remuneration, the amount of remuneration;

The following information about the training program:

Name and address of the training program;

A complete description of the training program;

The length of the training program, including the beginning and ending dates;

Information regarding the availability of employment following completion of the training program, including the program’s successful placement rate, if available;

A list of recognized authorities that have accredited, certified, licensed or otherwise approved the training program, if available;

Whether the training program is a regular part of an accredited educational/ vocational curriculum for high school or post-secondary education.

D. After application and upon receipt of all requested information, the Bureau will act upon training requests. The Bureau may schedule a hearing, if necessary, prior to the making of any such determination.

D.

3. Approval.

A. The Bureau will approve training requests only if:

(i) The program provides training for occupations that are stable or subject to growth, or have a projected significant positive replacement rate, in their areas based on an assessment of local economic factors performed by the Maine Department of Labor, Center for Workforce Research and Information (“CWRI”), or training that removes or reduces an existing barrier to sustainable employment such as English as a Second Language (ESL), English for Speakers of Other Languages (ASOL), English Language Learner (ALL), High School Equivalency Test (HiSET), or other similar training program . All occupations included in the Maine Department of Labor's most recent edition of the publication "Selected Occupational Information for Employment and Training Program Design" for the appropriate county or counties shall be deemed to be stable occupations subject to growth in their areas. Before denying a training waiver under this paragraph, the applicant will be afforded an opportunity to show that the occupation is stable, subject to growth, or has a projected significant positive replacement rate; and

(ii) Attendance in the proposed training necessarily interferes with the claimant's ability to conduct a work search and his or her availability for or ability to accept full time employment in accordance with subsection 3 of section 1192 of the Employment Security Law; and

(iii) Attendance in the proposed training requires twelve (12) class hours per week or twelve (12) credit hours per semester, or the number of credits or class hours that the training provider or educational institution considers to be full-time; and

(iv) The training program begins in 30 days or less; and

(v) The program is and remains accredited, certified, licensed, or approved by a recognized authority.

B. The priority for approved training is to relieve unemployment exacerbated by unemployability due to diminished demand for a claimant's labor skills. In order to ensure that regular, full- or part-time students whose primary goal is to obtain a degree shall not have their education subsidized by the unemployment compensation fund, the Bureau shall carefully scrutinize any application for approval of training in degree-granting programs; however, enrollment in a degree-granting program may not be the sole cause for denial of approved training status for an otherwise eligible claimant.

C. If a claimant is receiving remuneration for time spent in the program, other than reimbursement for actual tuition and materials costs of the program or for actual costs of child care, transportation, or other indirect costs necessary to allow the claimant to participate in the training program, or other federal financial aid or work study, and if such remuneration is less than the unemployment compensation or dislocated worker benefits otherwise payable to the claimant, such benefits shall be reduced by the amount of the remuneration, rounded to the nearest lower full dollar amount. If such remuneration is greater than the amount of such benefits otherwise payable, no benefits shall be paid for so long as the claimant receives such remuneration.

D. The Bureau will issue a written decision for each training request and will notify the claimant and the Director of Unemployment Compensation of any action taken. Interested parties may appeal the Bureau’s decision to the Division of Administrative Hearings pursuant to 26 M.R.S. § 1082(4-A).

4. Effective date, Termination, and Continuation.

A. Bureau approval of requests for training shall become effective immediately or, in the event that approval is granted after the start date of the training program, then on such start date, but in no case shall approval be effective more than thirty days before the program start date. Approval shall terminate immediately upon completion of the training program or when the claimant, without good cause, fails to begin participation, ceases participation, or fails to make satisfactory progress in the program. Satisfactory progress shall be as determined by the training provider.

B. All claimants in approved training programs shall provide evidence of satisfactory completion of the training to the Bureau immediately upon completion. All such claimants shall notify the Bureau whenever the enrollment, attendance, or completion of the approved training changes from that originally represented to the Bureau.

C. The exemption from the requirement to seek work, as contained in subsections 6, 6-A, 6-B, 6-C, and 6-D of section 1192 of the Employment Security Law and pursuant to Chapter 10, subsection l(B) of these rules, shall apply to claimants during holiday or vacation recess periods which occur within a normal training or academic program year. In addition, such exemption shall apply to claimants who are enrolled in training and who either have not yet begun training or are not currently participating in training because of a break between training components. This exemption from the work search requirement may not apply to periods which are more than eight (8) weeks in duration. It will be the responsibility of the claimant to provide documentation of enrollment in training.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. Sections 1082 and 1192
• EFFECTIVE DATE: September 6, 1993
• NON-SUBSTANTIVE CORRECTIONS: June 20, 2000 - converted to MS Word
• NON-SUBSTANTIVE CORRECTIONS: December 14, 2000 - removed stray dashes
• AMENDED: July 23, 2024 – filing 2024-167
• AMENDED: 12-172 Chapter 24 page 4

Chapter 25 Employee Leasing Companies

Code Me. R. 12-172 Ch. 25 Employee Leasing Companies {#sec-12-172-ch.-25 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 25}

SUMMARY: This chapter establishes the requirements and procedures for employee leasing companies and their present or former client companies in reporting requirements, record keeping, experience rating records, liability, and appeals. This chapter does not apply to temporary employment agencies as defined in 26 M.R.S.A. section 1221-A(6).

1. Employer notices, records, contributions and other payments, and reports.

Employee leasing companies are subject to the requirements in sections 1043, 1082 and 1221 of the Employment Security Law and Chapter 2 of the Rules Governing The Administration Of The Employment Security Law regarding employer notices, records, contributions and other payments, and reports.

2. Employment and covered services.

A. Coverage of services performed for a client company by leased employees shall be determined under section 1043(11) of the Employment Security Law without regard to an employee leasing contract or arrangement.

B. An employee leasing contract or arrangement will not extend coverage under the Employment Security Law to proprietors of, principals, or partners in, a client company.

3. Taxable Wages.

A. Wages paid to leased employees shall be determined as defined in section 1043(11) and section 1043(19) of the Employment Security Law without regard to the employee leasing contract or arrangement.

B. Wages paid to a leased employee who works for more than one client company and for other employers shall, for each client company and employer, be determined in accordance with section 1043(19)(A).

4. Records and reports.

A. In addition to records and reports required by the commissioner under section 1082(7) of the Employment Security Law, an employee leasing company shall provide the bureau with a list that identifies each client company with which it has a contract or arrangement. The list shall contain the following information for each client company:

1. Name

2. Address

3. Federal Identification Number

4. The name of a responsible individual with management authority for the client company.

B. Each employee leasing company shall notify the bureau whenever a client company enters or terminates the contract or arrangement with the employee leasing company. Notification shall be made in writing within 10 working days of such change in the relationship.

C. When an employee leasing company enters into a contract or arrangements with a client company, it will provide the bureau with an "Employer's Status Report" on forms prescribed by the bureau within 10 working days of entering into such a contract or arrangement.

D. The employee leasing company shall provide each of its clients with a list that identifies all leased employees performing services for the client company. The list shall contain the following information:

1. Employee names

2. Employee social security numbers

3. Wages paid to each employee in the preceding calendar quarter. These records shall be maintained by the client company as required by section 1082(7) for the period specified in subsection B of section 2 of Chapter 2 of these rules.

4. Experience Rating Records.

A. The bureau shall establish and maintain an account of experience rating record for each client company company in accordance with Section 1221(3) and 1221(4). The client company's experience rating record will include all taxes paid, all benefits charged to its account and all taxable wages reported by the leasing company for the employees of the client company.

6. Liability.

Each client company is jointly and severally liable for unpaid contributions, interest and penalties due from the employee leasing company for wages paid to employees leased to the client company. The bureau shall not be required to exhaust all collection methods against the employee leasing company for unpaid contributions, interest and penalties due from the leasing company. It may collect amounts due from a client company after the leasing company has failed to pay amounts when due.

7. Appeals.

A. An employee leasing company may appeal determinations by the Director of Unemployment Compensation, the commission, or the commissioner's designated representative that include it, or its client companies, to the same extent as employers.

B. A client company may appeal only those determinations by the Director of Unemployment Compensation, the commissioner, or the commissioner's designated representative that include issues pertaining to its liability for, or the employee leasing company's liability for its: unpaid contributions, interest, payroll penalties, and contribution penalties, or to the same extent as employers for determinations that included issues pertaining to one or more of its leased employees.

History

• STATUTORY AUTHORITY: 26 MRSA § 1082(2)
• EFFECTIVE DATE: May 30, 2000
• AMENDED: August 16, 2026 – filing 2026-184
• AMENDED: 12-172 Chapter 25 page 4

Chapter 26 Waivers of Repayment of Erroneously Paid Benefits

Code Me. R. 12-172 Ch. 26 Waivers of Repayment of Erroneously Paid Benefits (overpayments) {#sec-12-172-ch.-26 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 26}

1. Definitions.

For purposes of this subsection and of subsection 5 of section 1051 of the Employment Security Law, the following term shall have the following meanings:

A. “Bureau” means the Bureau of Unemployment Compensation, which administers this Rule pursuant to 26 M.R.S. § 1082(1).

B. "Amounts erroneously paid" means benefit payments made to a claimant to which, as a result of a later determination, reconsidered determination, redetermination, or decision by a deputy, the Division of Administrative Hearings, the commission, or a court, the claimant was not eligible or qualified for benefits.

2. Notice

Requests for Waiver of Repayment of Erroneously Paid Benefits. Whenever a decision of the Unemployment Insurance Commission (“Commission”) or the Division of Administrative Hearings or a deputy establishes that amounts have been erroneously paid to a claimant, such decision shall include a notice to the claimant of his or her right to request waiver of repayment of the erroneously paid benefits. The notice shall include instructions as to the method of requesting the waiver. Such notice will also be included in demands for repayments of erroneously paid benefits.

3. Criteria for granting a waiver of repayment of amounts erronousely paid.

The Bureau may grant a waiver of repayment of amounts erroneously paid when two criteria are found: 1. the claimant is without fault and 2. when such recovery would defeat the purpose of benefits otherwise authorized or would be against equity and good conscience.

4. Criteria for determining whether the overpayment is due to the fault of the claimant, thus disqualifying the claimant from a waiver of overpayment.

Acceptance of a payment which the claimant knew, or should reasonably have been expected to know, was incorrect will constitute fault on the claimant's part. In determining whether a claimant is at fault, the Bureau shall consider all pertinent circumstances, including the claimant's age and intelligence as well as any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language). A good faith mistake of fact by the claimant in the filing of a claim for benefits that results in an overpayment of benefits does not constitute fault.

Unless individual circumstances show otherwise, the following will be considered to be fault:

claimant made false or misleading statements;

claimant failed to be able and available without compelling reasons beyond the claimant’s control;

claimant failed to report earnings;

claimant failed to fulfil the work search requirement;

claimant failed to attend WPRS, RESEA, REA or other required or mandated reemployment services; or

claimant refused an offer of suitable work without reasonable basis.

A claimant who is found to have committed unemployment fraud or misrepresentation within the meaning of 26 M.R.S. § 1193(6) is not eligible for a waiver of repayment of the overpayment or any penalty imposed by 26 M.R.S. § 1051(4).

5. Criteria for determining whether recovery of the overpayment would defeat the purpose of benefits otherwise authorized or would be against equity and good conscience.

The Bureau has the discretion to find that requiring repayment of an overpayment to be against equity and good conscience after considering the totality the circumstances surrounding the overpayment.

The Bureau may find that repayment would be against equity and good conscience because recovery of the overpayment would cause financial hardship to the claimant considering factors to be including, but are not limited to, the income of the claimant, the claimant’s household income, the claimant’s expenses and debts, and liquid assets of the claimant.

The Bureau may presume financial hardship in the following instances:

if the claimant self-attests that they are currently recipients of SNAP, TANF, Heap, MaineCare (includes having a dependent child on MaineCare), SSI or SSDI.

if the claimant’s income is below 185% of the Federal Poverty level.

The Bureau will generally consider collection of an overpayment due to agency error, in circumstances in which the claimant is fully without fault, to be against equity and good conscience, regardless of current financial circumstances.

If the amount of the overpayment was increased due to significant delay by the Bureau in processing the decision, the Bureau may waive all or a portion of the overpayment due to such delay.

6. Interested Parties.

The claimant requesting waiver of repayment of amounts erroneously paid shall be the only interested party to the waiver determination.

7. Application for Waiver of Overpayment.

At any time that the Bureau issues a Deputy Decision that creates an overpayment of benefits, the adjudicator may issue a waiver of repayment of such overpayments at the same time if the conditions set forth herein are met. The Bureau is not required to undertake this review.

A claimant may request a waiver of an overpayment once a decision is final by submitting a waiver request to the Bureau through the form or mechanism set forth in the Notice in Section 2. A waiver request will not be considered if a decision is on appeal and the overpayment is not yet final.

There is no deadline for request of a waiver of repayment.

A claimant who has been denied a waiver may submit a subsequent waiver request, if circumstances change.

8. Decision.

The Bureau, after considering the claimant's request for waiver, shall issue a written decision setting forth the reasons for its decision which shall be sent to the claimant or to the claimant's representative of record. The Bureau’s decision shall be one of the following alternatives:

A. Approve waiver of repayment of the entire amount erroneously paid;

B. Approve waiver of a specified portion of the erroneously paid amount, with the balance not so waived to be collected under one of the following remaining alternatives; or

C. Deny waiver of all or part of the repayment, and require repayment via:

1. Deduction of future benefits payments to the claimant in the amount specified in section 1051 of the Employment Security Law; or

2. Other methods of collection available to the commissioner as set forth in subsections 6 and 8 of section 1051 of the Employment Security Law.

3. Future Benefit Deductions.

A. The Bureau, in accordance with 26 M.R.S.A. section 1051(5) and this Rule may determine, upon a claimant's request for a waiver, that collection of an erroneous payment of benefits may be by offset of future benefits. Such a determination will prevent further collection of the overpayment under 26 M.R.S.A. section 1051(6) and 36 M.R.S.A. Chapter 831 relating to income tax setoffs. It will not, however, prevent further collection under 26 M.R.S.A. section 1051(8) relating to the setoff of lottery winnings.

10. Right of Appeal.

A claimant may appeal a denial of a waiver of repayment of errnoeuous payment to the Division of Administrative Hearings and to the Unemployment Insurance Commission in accordance with the procedure and deadlines for appealing a benefit determination, in accordance with 26 M.R.S. 1194 (2),(3) and (5). A denial of a waiver of repayment of erroneous payment will include notice of the right to appeal and the mechanism for such appeal. A claimant does not have the right to appeal a decision by the bureau not to grant a waiver at the time of the issuance of the Deputy Decision creating the waiver in accordance with Section 7.A. above, in the absence of a request for a waiver by the claimant.

History

• STATUTORY AUTHORITY: 26 MRSA § 1082(1)
• EFFECTIVE DATE: May 30, 2000
• NON-SUBSTANTIVE CORRECTION: August 29, 2001 - Sec. 2(C)(7)
• AMENDED: March 5, 2024 – filing 2024-046
• AMENDED: 12-172 Chapter 26 page 4

Chapter 27 Workshare Program

Code Me. R. 12-172 Ch. 27 Workshare Program {#sec-12-172-ch.-27 omnilex-key=us-me-regs-official--dept-labor--12-172 Ch. 27}

12 DEPARTMENT OF LABOR

172 BUREAU OF UNEMPLOYMENT COMPENSATION Chapter 27: WORKSHARE PROGRAM

Summary: This Chapter establishes the requirements and procedures for employers and employees who choose to participate in Maine’s Short-Term Compensation program, known as WorkShare. This Chapter provides additional guidance and clarifies definitions and processes enacted in Title 26 § 1198 of Maine State Law.

Definitions

1. "Affected unit" means a specified plant, department, shift or other definable unit consisting of 2 or more eligible employees to which a WorkShare plan applies. Employees in the same classification, job title, functional unit, and/or skillset should be in the same unit.
2. “Commissioner” means the Commissioner of the Department of Labor or the commissioner’s designee.
3. “Eligible employee” means an individual who usually works for the eligible employer submitting a WorkShare plan.
4. “Eligible employer” means a public or private employer who submits a WorkShare plan that is approved by the Commissioner pursuant to the requirements set forth in this rule.
5. “End date” shall coincide with the end of the last full benefit week within the 12^th full calendar month after the effective date of the plan, or on the date specified in the plan if that date is earlier, unless the plan is previously revoked by the commissioner.
6. “Fringe benefits” includes, but is not limited to, health insurance, retirement benefits, paid vacation and holidays, sick leave and similar advantages that are incidents of employment.
7. "Good cause" includes, but is not limited to, failure to comply with assurances given in the WorkShare plan, unreasonable revision of productivity standards for the affected unit, conduct or occurrences tending to defeat the intent and effective operation of the plan and violation of any criteria on which approval of the plan was based.
8. "Intermittent employment” means employment that is not continuous but may consist of intervals of weekly work and intervals of no weekly work or annually reoccurring reductions of work at a year- round business that has not been determined seasonal.
9. “Seasonal employment” means employment in seasonal industries within the determined seasonal period as set forth in 26 M.R.S. § 1198.
10. “Substantial change.” For the purpose of Subsection 6 of the Law, a change or modification is “substantial” if that modification further reduces the approved plan reduction of work hours more than 10% for more than two weeks or changes the employees named in the approved WorkShare plan. A modification involving substantial change must be reviewed and approved by the department before implementation. No plan modification approval is required for a change that returns the participating employees to full time employment.
11. “Usual weekly hours of work” means the usual hours of work for full-time or part-time employees in the affected unit when that unit is operating on its regular basis, not to exceed forty hours and not including hours of overtime work.

WorkShare Plan Applications

1. The WorkShare application must include the following: 1. Attest that the employer is not delinquent in the payment of contributions or reimbursements or in the reporting of wages; 2. Identify the affected unit or units; 3. Specify the effective date of the plan, which must coincide with the first day of a benefit week; 4. Specify the end date of the plan, which must coincide with the last day of a benefit week and which may not be later than 12 calendar months after the effective date; 5. Identify the eligible employees in the affected unit or units by name, social security number, usual weekly hours of work, proposed wage and hour reduction; 6. Certify that the reduction in the usual weekly hours of work is in lieu of layoffs that would have affected at least 10% of the eligible employees in the affected unit or units and that would have resulted in an equivalent reduction in work hours; 7. Specify the specific percentage of reduction in the usual weekly hours of work for eligible employees in the affected unit or units and certify that the reduction in hours in each affected unit is spread equally among eligible employees in the affected unit. This reduction must be not less than 10% and not more than 50%; 8. Specify the manner in which the fringe benefits of the eligible employees will be affected. If the employer provides health benefits or retirement benefits under a defined benefit plan, the application must specify that the employer must continue to provide the benefits to employees participating in the WorkShare program as if the workweeks of these employees had not been reduced or to the same extent the benefits are provided to other employees not participating in the WorkShare program; 9. In the case of eligible employees represented by a collective bargaining agent, certify that the WorkShare plan is approved in writing by the collective bargaining agent that covers the affected eligible employees. In the absence of a collective bargaining agent, certify that the proposed plan, or a summary of the plan, has been made available to each eligible employee in the affected unit.; 10. Certify that the WorkShare plan will not serve as a subsidy of seasonal employment during the off-season or a subsidy of intermittent employment ; 11. Specify that the employer agrees to furnish reports relating to the proper conduct of the WorkShare plan and agrees to allow the commissioner or the commissioner's designee or authorized representatives access to all records necessary to verify the plan prior to approval and to monitor and evaluate application of the plan after approval; 12. Specify the number of layoffs that would have occurred absent the ability of employees to participate in the WorkShare plan; 13. Certify that eligible employees will be allowed to participate, as appropriate, in approved training, including, but not limited to, employer-sponsored training or worker training funded under the federal Workforce Innovation and Opportunity Act, Public Law 113-128, to enhance job skills if such training has been approved by the commissioner.

Approval and Disapproval of WorkShare Plan. The Commissioner shall approve or disapprove a WorkShare plan in writing within 10 business days of its receipt. The Commissioner’s decision is final and not subject to appeal.

Modification of a WorkShare Plan.

1. Modification that is Not a Substantial Change. An operational approved WorkShare plan may be modified by the eligible employer with the consent of a collective bargaining agent that covers the affected employees, if any, if the modification is not substantial, conforms with the plan approved by the commissioner and is reported promptly to the commissioner by the eligible employer.
2. Substantial Change. A new plan application must be submitted for each substantial modification or change to any existing WorkShare plan. The decision of the commissioner is final and not subject to appeal.
3. Recalling employees previously laid off by the WorkShare employer under the conditions of the approved WorkShare plan for the unit is allowed from the point of recall.
4. Newly hired employees hired in a unit covered by a WorkShare plan are required to work no less than one week at their full, normal hours agreed upon at the time of hire before any WorkShare reduction in hours is allowed. After this one week, the employer must reduce the number of work hours of the new hire per the approved WorkShare plan for the unit in question. There is no impact on existing employees in the affected unit on WorkShare during this time.

Revocation of a WorkShare Plan. The Commissioner may revoke approval of a WorkShare plan at any time for good cause as defined in Section 1.G. The revocation order must be in writing, state the reasons for revocation and specify the date the revocation takes effect. The Commissioner’s revocation order is final and not subject to appeal.

Multiple WorkShare Plans. An individual claimant may not participate simultaneously in more than one WorkShare program. Should an individual be included in more than one employer’s approved plans, the individual shall choose the plan through which benefits will be claimed. The individual must notify the Bureau in writing of the selection. Once selected, the individual must remain on that plan until such time as the plan ends or is substantially changed. At that time, the individual may make another selection.

Initial claims. Once the employer notifies the affected employee(s) the WorkShare Plan has been approved, the employee must file an initial WorkShare claim.

Eligibility and Weekly Claims Filing

1. After serving a waiting period as prescribed by the commissioner, an eligible employee is eligible to receive WorkShare benefits with respect to any week only if the commissioner finds that:

During the week, the eligible employee is employed as a member of an affected unit under an approved WorkShare plan that was approved prior to that week and that is in effect with respect to the week for which WorkShare benefits are claimed.

The eligible employee is deemed unemployed in that the wages, which may include approved leave pay, are paid to that eligible employee in an affected unit is less than that eligible employee's normal weekly hours of work as specified under the approved WorkShare plan in effect for the week.

The eligible employee is available and able to work the normal workweek with the WorkShare employer.

The eligible employee meets other conditions of eligibility for regular benefits that are not inconsistent with the WorkShare program.

Monetary eligibility must be established in accordance with subsection 5 of Section 1192 of Maine Employment Security Law.

1. The employer and employee must both provide and certify the requested information in their respective portions of the WorkShare Weekly Claim Form, and submit it to the Bureau as directed.
2. A separate WorkShare weekly claim form must be completed for each week.
3. WorkShare Weekly Claim Forms shall be submitted to the Bureau by the claimant no later than 14 days after the week ending date of the weekly claim. An additional 7 days may be allowed if the claimant can show good cause for not filing within the first 14 days. Any weekly claim filed more than 21 days after the week ending date of the claim shall be considered late and benefits denied for that week.
4. WorkShare weekly claims shall be submitted in a format prescribed by the Bureau.

Benefits

1. The weekly WorkShare benefit amount is the product of the regular weekly benefit amount, including any dependents' allowances, multiplied by the percentage reduction in the eligible employee's usual weekly hours of work as specified in the approved WorkShare plan. If the weekly WorkShare benefit amount is not an exact multiple of $1, the weekly WorkShare benefit amount must be rounded down to the next lower multiple of $1.
2. An eligible employee may not receive a total of WorkShare benefits and regular unemployment compensation in any benefit year that exceeds the maximum entitlement established for unemployment compensation, nor may an eligible employee be paid

WorkShare benefits for more than 52 weeks in any benefit year pursuant to an approved WorkShare plan.

1. The WorkShare benefits paid must be deducted from the maximum entitlement amount established for an eligible employee's benefit year.
2. If an eligible employer approves time off and the eligible employee has performed some work, meaning no less than one (1) full hour, during the week, the eligible employee is eligible for WorkShare benefits based on the combined work and paid leave hours for that week. An eligible employee is not eligible for WorkShare benefits if the claimant was sick and consequently did not work all the hours offered by the WorkShare employer in a given week.
3. Processing of WorkShare ineligible claims. If an individual submits a weekly claim under a WorkShare plan, but does not meet the WorkShare eligibility requirements, the claim will then be processed as a claim against regular state unemployment. All eligibility requirements, with the exception of work search, of the regular state unemployment program shall then apply.
4. Reporting of earnings. On a WorkShare weekly claim, the employer must report any earnings that will be paid to the claimant. In addition, the claimant must report earnings from any other employer during the same week.
5. Treatment of Earnings. If an eligible claimant works in the same week for a WorkShare employer and an employer other than the WorkShare employer, the eligible claimant’s WorkShare benefits must be computed in the same manner as if the eligible claimant worked solely with the WorkShare employer, except that if the eligible claimant is not able to work or is not available for the normal workweek with the WorkShare employer, WorkShare benefits may not be paid to that eligible employee for that week. Bonus payments during a WorkShare week shall be considered as earnings and shall not reduce their entitlements during the WorkShare week.

Benefit charges. All charges for benefits paid to an individual on an approved plan shall be charged to the unemployment experience rate of the WorkShare employer. The charges will also be assigned solely to the WorkShare employer when the weekly claim is paid through the regular state unemployment program, but within the timeframe of the approved WorkShare plan. Employers who make payments in lieu of contributions shall pay for the full cost of any benefits paid to an individual under an approved WorkShare plan.

Overpayment recovery

Collection of overpayments shall be in accordance with Section 1051 of Maine Employment Security Law.

History

• STATUTORY AUTHORITY: 26 M.R.S. §§ 1082(1) and 1198
• EFFECTIVE DATE: April 27, 2024 – filing 2024-096

12-179 Board of Occupational Safety and Health

Chapter 1 Procedural Rules

Code Me. R. 12-179 Ch. 1 Procedural Rules {#sec-12-179-ch.-1 omnilex-key=us-me-regs-official--dept-labor--12-179 Ch. 1}

Summary: This chapter describes the Occupational Safety & Health Board Procedural Rules for notices, hearings, records, subpoena powers, decisions, officers and rulings.

1.01 NOTICE

A. Notice of Hearings to be held by the Board shall be given as follows:

1. By registered mail to the person or persons whose legal rights, duties or privileges are at issue, sufficiently in advance of the hearing date to afford an adequate opportunity to prepare and submit evidence and argument.

2. By publication to the public sufficiently in advance of the hearing date to afford interested persons an adequate opportunity to prepare and submit evidence and argument and to petition to intervene in any proceedings deemed by the Board to involve the determination of issues of substantial public interest.

3. Notice by publication shall be given in a newspaper of general circulation at least twice, in the area of the State affected and in any other trade, industry, professional or interest group publication which the Board deems effective in reaching persons who would be entitled to intervene.

B. All Notices of Hearings shall contain the following:

1. A statement of the legal authority and jurisdiction under which the proceeding is being conducted;

2. A reference to the particular substantive statutory and rule provisions involved;

3. A short and plain statement of the nature and purpose of the proceeding and of the matters asserted;

4. A statement of the time and place of the hearing,

5. A statement of the manner and time within which evidence and argument may be submitted to the agency for consideration,

6. A statement of the manner and time within which applications for intervention may be filed.

1.02 DISPOSITION WITHOUT FULL HEARING

A. The Board may make informal disposition of any adjudicatory proceeding by default when any party fails to appear at the scheduled hearing, provided that notice of the consequences of such failure to appear has been given to said party. Any such default may be set aside by the Board for good cause shown.

B. The Board may limit the issues to be heard or vary any procedure prescribed by Board rule or the Administrative Procedure Act if the parties and Board agree to such limitation or variation, or if no prejudice to any party will result.

1.03 PUBLIC PARTICIPATION

A. Intervention. On timely application made pursuant to Board rules, the Board shall allow any person showing that he is or may be, or is a member of a class which is or may be substantially and directly affected by the proceeding, or any other agency of federal, state or local government to intervene as a party to the proceeding.

B. Intervention; interested person. The Board may, by order, allow any other interested person to intervene and participate as a full or limited party to the proceeding. This shall not be construed to limit public participation in the proceeding in any other capacity.

C. Participation limited or denied. When participation of any person is limited or denied, the Board shall include in the record an entry to that effect and the reasons-therefore.

D. Consolidation of presentation. Where appropriate, the Board may require consolidation of presentations of evidence and argument by members of a class entitled to intervene or by persons allowed to intervene.

E. Participation. The Board shall allow any of its staff to appear and participate in any adjudicatory proceeding.

F. Attendance by conference communications. Unless otherwise restricted by law, members of the Board, or members of any committee designated by the Board, may participate in a meeting of the Board by means of video conference, interactive television, computer technology or similar communications equipment by means of which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to this section shall constitute presence in person at such meeting.

1.04 EX PARTE COMMUNICATIONS: SEPARATION OF FUNCTIONS

A. In any adjudicatory proceeding, no Board members authorized to take final action or presiding officers designated by the Board to make findings of fact and conclusions of law shall communicate directly or indirectly, in connection with any issue of fact, law or procedure, with any person, except upon notice and opportunity for all parties to participate.

B. This section shall not prohibit any Board member or other presiding officer described above from:

1. Communicating in any respect with other members of the Board or other presiding officer; or

2. Having the aid or advice of those members of his own Board staff, counsel or consultants retained by the Board who have not participated and will not participate in the Board proceeding in an advocate capacity.

1.05 OPPORTUNITY TO BE HEARD

A. The opportunity for hearing shall be afforded without undue delay.

B. Unless limited by stipulation under Rule 1.02(B) or by Board order pursuant to Rule 1.03(b or D) or unless otherwise limited by the Board to prevent repetition or unreasonable delay in proceedings, every party shall have the right to present evidence and arguments on all issues, and at any bearing to call, and examine witnesses and to make oral cross-examination of any person present and testifying.

1.06 EVIDENCE

A. The Board need not observe the rules of evidence observed by the courts, but shall observe the rules of privilege recognized by law.

B. Evidence shall be submitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The Board may exclude irrelevant or unduly repetitious evidence.

C. All witnesses shall be sworn.

D. Subject to these requirements, the Board may, for the purposes of expediting adjudicatory proceedings, require the prefiling of all or part of the testimony of any witness in written form. Every such witness shall be subject to oral cross-examination.

E. No sworn written evidence shall be admitted unless the author is available for cross-examination or subject to subpoena, except for good cause shown.

1.07 OFFICIAL NOTICE

A. The Board may take official notice of any facts of which judicial notice could be taken, and in addition may take official notice of general, technical or scientific matters within their specialized knowledge and of statutes, regulations and nonconfidential agency records. Parties shall be notified of the material so noticed, and they shall be afforded an opportunity to contest the substance or materiality of the facts noticed.

B. Facts officially noticed shall be included and indicated as such in the record.

C. Notwithstanding the foregoing, the Board may utilize their experience, technical competence and specialized knowledge in the evaluation of the evidence presented to them.

1.08 RECORD

A. In all adjudicatory proceedings the Board shall make a record consisting of the following:

1. All applications, pleadings, motions, preliminary and interlocutory rulings and orders;

2. Evidence received or considered;

3. A statement of facts officially noticed;

4. Offers of proof, objections and rulings thereon;

5. Proposed findings and exceptions, if any;

6. The recommended decision, opinion or report, if any, by the presiding officer;

7. The decision of the Board; and

8. All staff memoranda submitted to the members of the Board or other presiding officers by Board staff in connection with their consideration of the case, except memoranda of counsel to the Board.

B. The Board shall record all hearings in a form susceptible to transcription. Portions of the record as required and specified in subsection A of this rule may be included in the recording. The Board shall transcribe the recording when necessary for the prosecution of an appeal.

C. The Board shall make a copy of the record, including recordings made pursuant to subsection B of this rule, available at the offices of the Bureau of Labor, for inspection by any person during normal business hours; and make copies of the record, copies of recordings or transcriptions or recordings available to any person at actual cost. Notwithstanding the provisions of this subsection, the Board shall withhold, obliterate or otherwise prevent the dissemination of any portions of the record which are made confidential by State or federal statute, but shall do so in the least restrictive manner feasible.

D. All material, including record, reports and documents in possession of the Board, of which it desires to avail itself as evidence in making a decision, shall be offered and made part of the record and no other factual information or evidence shall be considered in rendering a decision.

E. Documentary evidence may be incorporated in the record by reference when materials so incorporated are made available for examination by the parties before being received in evidence.

1.09 SUBPOENAS

A. Pursuant to Title 5 MRSA §9060, the Board may issue a subpoena if it first obtains the approval of the Attorney General or of any deputy attorney general. Any party to the proceeding may request that a subpoena be issued.

B. Authorized subpoenas shall be issued in accordance with the following:

1. The form of the subpoena shall adhere, insofar as practicable, to the form used in civil cases before the courts. Witnesses shall be subpoenaed only within the territorial limits and in the same manner as witnesses in civil cases before the courts, unless another territory or manner is provided by law.

2. The subpoena shall show on its face the name and address of the party at whose request it was issued.

3. Any witness subpoenaed may petition the Board to vacate or modify a subpoena in its name. The Board shall give prompt notice to the party who requested issuance of the subpoena. After such investigation as the agency considers appropriate, it may grant the petition in whole or in part upon a finding that the testimony or the evidence whose production is required does not relate with reasonable directness to any matter in question, or that a subpoena for the attendance of a witness or the production of evidence is unreasonable or oppressive or has not been issued a reasonable period in advance of the time when the evidence is requested.

4. Pursuant to Title 5 MRSA §9060 (1) (D) failure to comply with a subpoena lawfully issued and not revoked or modified shall be punishable by a fine of not less than $500.00 and not more than $5,000, or by imprisonment not to exceed 30 days, or both.

1.10 DECISIONS

A. Every Board decision made at the conclusion of an adjudicatory proceeding shall be in writing or stated in the record, and shall include findings of fact sufficient to apprise the parties and any interested member of the public of the basis for the decision. A copy of the decision shall be delivered or promptly mailed to each party to the proceeding or his representative of record. Written notice of the party's rights to review or appeal of the decision within the Board or review of the decision by the courts, as the case may be, and of the action required and the time within which such action must be taken in order to exercise the right of review or appeal, shall be given to each party with the decision.

B. The Board shall maintain a record of the vote of each member of the Board with respect to the Board decision.

1.11 PRESIDING OFFICERS

A. The Board may authorize any Board member to act as presiding officer in any hearing.

B. Whenever a presiding officer is disqualified or it becomes impracticable for him to continue the hearing, another presiding officer may be assigned to continue with the hearing; provided that, if it is shown substantial prejudice to any party will thereby result, the substitute officer shall commence the hearing anew.

C. It shall be the duty of the presiding officer to:

1. Administer oaths and affirmations;

2. Rule on the admissibility of evidence;

3. Regulate the course of the hearing, set the time and place for continued hearings, and fix the time for filing of evidence, briefs and other written submissions; and

4. Take other action authorized by statute or Board rule.

D. In the event that the presiding officer prepares any report or proposed findings for the Board, the report of findings shall be in writing. A copy of the report or findings shall be provided to each party and an opportunity shall be provided for response or exceptions to be filed by each party.

E. Hearings shall be conducted in an impartial manner. Upon the filing in good faith by a party of a timely charge of bias or of personal or financial interest, direct or indirect, of a presiding officer or Board member in the proceeding requesting that the person disqualify himself, that person shall determine the matter as a part of the record.

1.12 ADVISORY RULINGS

A. Advisory rulings may be made with respect to the applicability of any statute or rule administered by the Board to an interested person or his property or actual state of facts.

B. An interested person means any person over whom the Board has authority to inspect and enforce its safety standards.

C. All requests for advisory rulings shall be made in writing and submitted to the Director of the Bureau of Labor, State Office Building, Augusta, Maine. Such requests shall state the facts and statutes or rules on which the ruling is requested.

D. The Director of the Bureau of Labor may request from any person seeking an advisory ruling any additional information that is necessary. Failure to supply such additional information shall be cause for the Board to decline to issue an advisory ruling.

E. The Board may decline to issue an advisory ruling if a citation or penalty has been issued against the person requesting the ruling on the same factual grounds. The Board may also decline to issue an advisory ruling if such a ruling may harm the Board's interest in any litigation in which it is or may be a party.

F. All advisory rulings shall be issued, in writing no later than 30 days from the date all information necessary to make a ruling has been received by the Director of the Bureau of Labor.

G. No advisory ruling shall be binding upon the Board provided that in any subsequent enforcement action initiated by the Board, any person's reliance on such a ruling shall be considered in mitigation of any penalty sought to be assessed.

History

• STATUTORY AUTHORITY: 26 MRSA Chapter 6 §565
• EFFECTIVE DATE: December 28, 1978
• EFFECTIVE DATE (ELECTRONIC CONVERSION): December 25, 1996
• NON-SUBSTANTIVE CHANGES: August 29, 1997 - converted to Microsoft Word for Windows format
• AMENDED: July 7, 2008 – Section 1.03(F), filing 2008-279
• AMENDED: APAO WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK: July 17, 2025

Chapter 2 Occupational Safety and Health Standards for General Industry Employment in the Public Sector

Code Me. R. 12-179 Ch. 2 Occupational Safety and Health Standards for General Industry Employment in the Public Sector {#sec-12-179-ch.-2 omnilex-key=us-me-regs-official--dept-labor--12-179 Ch. 2}

Summary: The purpose of this Chapter is to incorporate by reference rules governing Occupational Safety and Health in general industry employment as promulgated by the Federal Occupational Safety and Health Administration at 29 CFR Part 1910 as most recently amended as of February 13, 2026.

1. Incorporation by Reference

The State Board of Occupational Safety and Health adopts the General Industry Standards for Occupational Safety and Health as promulgated by the U.S. Department of Labor, Occupational Safety and Health Administration as Title 29 Code of Federal Regulations , Part 1910, revised as of February 13, 2026.

2. Special Maine Rule (SMR) ME 1910.134 – Respiratory Protection amendments

The attached amendments to 1910.134 adopted May 3, 1999 to become effective in two stages. October 1, 1999 for written program completion; August 2, 2000 for full implementation.

AMENDMENTS TO

29 CFR 1910.134

ADOPTED MAY 3, 1999

A) Periodic medical evaluations will be conducted as follows: The medical evaluation will include questions 1-15, Part A section 2 in Appendix C. Any “yes” answers to these questions require a medical follow-up. Part “B” of the medical questionnaire is optional at the discretion of the PLHCP.

B) Periodic medical evaluation shall be administered according to the following schedule:

Employees: Up through 35 years of age - at least every 5 years

36 to 40 years of age - at least every 2 years

Over 40 years old - at least annually

History

• STATUTORY AUTHORITY: 26 M.R.S. Section 565
• EFFECTIVE DATE: February 14, 1989
• REPEAL OF PREVIOUS RULE: January 8, 1992
• ADOPTION OF NEW RULE: January 8, 1992
• AMENDED: September 23, 1993
• AMENDED: September 23, 1993 (addenda)
• AMENDED: March 21, 1995
• AMENDED: March 20, 1997
• AMENDED: April 1, 1997
• NON-SUBSTANTIVE CORRECTIONS: June 18, 1997 - removed stray period after “most”
• NON-SUBSTANTIVE CORRECTIONS: August 28, 1997 - addition of missing March 20, 1997 amendment date
• AMENDED: November 4, 1997 – filing 97-393
• AMENDED: August 18, 1998 – filing 98-343
• AMENDED: August 25, 1998 – filing 98-359
• AMENDED: October 1, 1999 – filing 99-263
• AMENDED: August 2, 2000 – filing 2000-253
• AMENDED: January 2, 2001 – filing 2000-565
• AMENDED: March 29, 2004 - filing 2004-99
• AMENDED: July 7, 2008 – filing 2008-280
• AMENDED: March 16, 2013 – filing 2013-060
• AMENDED: September 28, 2016 – filing 2016-156, added “Industry” to the rule title, among other changes. Corrected and re-posted October 13, 2016.
• AMENDED: December 26, 2017 – filing 2017-207
• AMENDED: December 26, 2020 – filing 2020-253
• AMENDED: November 20, 2021 – filing 2021-232
• AMENDED: July 7, 2026 – filing 2026-166

Chapter 3 Occupational Safety and Health Standards for Construction Industry Employment in the Public Sector

Code Me. R. 12-179 Ch. 3 Occupational Safety and Health Standards for Construction Industry Employment in the Public Sector {#sec-12-179-ch.-3 omnilex-key=us-me-regs-official--dept-labor--12-179 Ch. 3}

Summary: The purpose of this chapter is to incorporate by reference certain rules governing Occupational Safety and Health in construction industry employment as promulgated by the Federal Occupational Safety and Health Administration at 29-CFR Part 1926 as most recently amended as of January 13, 2025.

Incorporation by Reference

The State Board of Occupational Safety and Health adopts the Construction Industry Standards for Occupational Safety and Health as promulgated by the U. S. Department of Labor, Occupational Safety and Health Administration, Title 29, Code of Federal Regulations , Part 1926 revised as of January 13, 2025.

AMENDMENTS TO

29 CFR 1926.103 (identical to those set forth in 29 CFR 1910.134)

Periodic medical evaluation shall be administered according to the following schedule:

Employees: Up through 35 years of age - at least every 5 years

36 to 40 years of age - at least every 2 years

Over 40 years old - at least annually

History

• STATUTORY AUTHORITY: 26 M.R.S.A. §565
• EFFECTIVE DATE: February 14, 1989
• REPEALED AND REPLACED: January 8, 1992
• AMENDED: September 23, 1993
• AMENDED: March 21, 1995
• EFFECTIVE DATE (ELECTRONIC CONVERSION): December 25, 1997
• AMENDED: March 20, 1997
• AMENDED: November 4, 1997
• AMENDED: August 11, 1998
• AMENDED: August 25, 1998 – removal of 1(c)
• AMENDED: October 1, 1999
• AMENDED: August 2, 2000
• AMENDED: March 29, 2004 – filing 2004-100
• AMENDED: July 7, 2008 – filing 2008-281
• AMENDED: October 11, 2010 – filing 2010-465
• AMENDED: March 16, 2013 – filing 2013-061
• AMENDED: September 28, 2016 – filing 2016-157, adds “Industry” to the chapter title, among other changes
• AMENDED: December 26, 2017 – filing 2017-208
• AMENDED: March 22, 2020 – filing 2020-056
• AMENDED: January 29, 2023 – filing 2023-016
• AMENDED: June 30, 2025 – filing 2025-136

Chapter 4 Occupational Safety and Health Standards for Firefighting in the Public Sector

Code Me. R. 12-179 Ch. 4 Occupational Safety and Health Standards for Firefighting in the Public Sector {#sec-12-179-ch.-4 omnilex-key=us-me-regs-official--dept-labor--12-179 Ch. 4}

I. Definitions

A. Fire Department

“Fire Department" refers to a municipal fire department, as defined in Title 30-A, Section 3151(1) or a volunteer fire association, as defined in Title 30-A, Section 3151(3).

B. Firefighter

"Firefighter" refers to a municipal firefighter, as defined in Title 30-A, Section 3151(2) or a volunteer firefighter, as defined in Title 30-A, Section 3151 (4).

C. Full Protective Equipment

"Full Protective Equipment" refers to protective equipment and clothing as listed in the Minimum Safety Standards for Firefighters Statute Title 26, Section 2103 (1) through (9).

D. Records and Training-Records

1. "Records" means records maintained by municipal fire departments and Volunteer fire associations listing:

The date of each inspection and finding for each and every SCBA and the signature or initials of the person making the inspection.

2. "Training records" means the records kept of firefighter training and provided by municipal fire departments and volunteer fire associations pursuant to Title 26 Section 2102. Training records shall be kept on all active firefighters.

E . Standards

"Standards" refers to the standards established by the Maine Board of Occupational Safety and Health, 12-179 CMR Chapters 1, 2, 3, 5, 6 and 7 as most recently amended.

II. The Role of the Bureau of Labor Standards

The role of the Bureau of Labor Standards shall include but not be limited to:

Investigating workplace injuries and fatalities (Title 26, Section 2), investigating written employee complaints (Title 26, Section 50), and issuing citations for violations of safety standards. (Title 26, Sections 43, 44, 44-A, 45, 46, 49)

Conducting routine BLS inspections

Reviewing inventories, records and training records kept by municipal fire departments and volunteer fire associations to ensure compliance with the provisions of the Minimum Safety Standards for Firefighters statute and rules of the Board of Occupational Safety and Health.

Advising municipal fire departments and volunteer fire associations on procedures for record keeping, inspections of protective equipment and meeting the requirements of various standards for new purchases of protective equipment.

III. Federal OSHA Standards

Federal OSHA Standards, located at 29 CFR Sections 1910 and 1926, as incorporated by the Board of Occupational Safety and Health 12-179CMR all chapters as applicable will also apply to municipal fire departments and volunteer fire associations.

IV. Full Protective Equipment

Full protective equipment is required in firefighting interior structural fires. It is not considered necessary for grass and traditional forest firefighting in most instances, unless determined necessary by local command decision or the Chief on the scene.

History

• STATUTORY AUTHORITY: 26 M.R.S. §§ 2101-2107
• EFFECTIVE DATE: November 9, 1993 (EMERGENCY - expires February9, 1994) – filing 93-413
• EFFECTIVE DATE OF PERMANENT RULE: August 19, 1994 – filing 94-244
• EFFECTIVE DATE (ELECTRONIC CONVERSION): December 25, 1996
• NON-SUBSTANTIVE CHANGES: August 29, 1997 - converted to Microsoft Word for Windows
• AMENDED: June 10, 2018 – filing 2018-095

Chapter 5 Occupational Safety and Health Standards for Public Safety Diving

Code Me. R. 12-179 Ch. 5 Occupational Safety and Health Standards for Public Safety Diving {#sec-12-179-ch.-5 omnilex-key=us-me-regs-official--dept-labor--12-179 Ch. 5}

Summary: The purpose of this chapter is to establish standards and procedures to protect public safety divers from the hazards of diving.

Definitions

Public Safety Diver: Any individual who engages in compressed gas diving activities under the direction of a public employer subject to rules adopted under Title 26 MRSA §565 and §2107.

Public Safety Dive: Compressed gas diving performed in the interest of search and rescue or related public safety purposes, which does not meet the definitions for commercial, scientific, or other diving activities as described in 29 CFR 1910 Subpart T or 29 CFR 1926 Subpart Y as adopted under agency work rules 12-179 Chapter 2, general industry, and Chapter 3, construction standards.

Public Safety Dive Team: Personnel trained in public safety dive operations, including public safety divers and support personnel.

Dive Manual

1. Each agency conducting public safety diving shall develop and maintain a written dive operations manual that contains policies and procedures to protect divers. Each dive manual shall be reviewed annually.
2. Each dive manual shall contain, at a minimum, the following sections:

Scope

Dive Operations Chain of Command

Standard Operating Procedures (SOP) for Dive Operations

Equipment maintenance/inspection

Medical Evaluation and Clearance

Training

Emergency Action Plan

Recordkeeping

Scope

Each agency shall establish a written mission and limit of its public safety dive operations.

IV. Dive Operations Chain of Command

Each agency shall establish a written chain of command with a clear chain of responsibility and duties within a dive program including but not limited to: divers, supervisors and administration.

V. Standard Operating Procedures (SOP) for Dive Operations

Each agency shall establish written standard operating procedures for dive operations. Procedures shall be established based on dive type, dive parameters and recognized dive safety practices. A process of hazard assessment, which will include personal protective equipment, shall be included as part of standard operating procedures.

VI. Equipment Maintenance/Inspection

Each agency shall ensure and document that all dive-related equipment is inspected and maintained in accordance with manufacturer recommendations. Each agency shall keep a written inventory of dive-related equipment. All dive-related equipment shall be inspected for wear or damage prior to each use.

VII. Medical Evaluation and Clearance

Every public safety diver must receive a written medical clearance for diving by a physician or other licensed health care professional (PLHCP) at least every eighteen (18) months. Following any major injury or illness requiring medical attention beyond first aid, additional written medical clearance by PLHCP shall be obtained before resuming diver duties.

VIII. Training

Each public safety diver shall possess, at a minimum, a nationally recognized diver certification.

Each agency shall ensure dive team members are trained in cardiopulmonary resuscitation (CPR), First Aid, Automatic External Defibrillator (AED) and the proper administration of oxygen, if licensed to do so.

Dive team members shall be trained or certified proficient for the requirements of various dive operations for which they are assigned

Training shall be commensurate with duties and type of dive operations, including, but not limited to:

Use of tools and equipment

Techniques of diving

Emergency procedures

Hyperbaric conditions

Recordkeeping and log books

Watercraft operation

IX. Emergency Action Plan

Each Agency shall develop a written emergency action plan. The emergency action plan shall include, but is not limited to, emergency procedures for equipment failure, adverse conditions, and medical illness or injury. This plan shall be integrated into the Dive Manual and any training provided to dive teams.

X. Recordkeeping

Each agency shall maintain written records of all operational and training dive activities. Records kept shall include:

Medical clearance for each diver.

Training records.

Equipment inspection/maintenance records.

Dive records. Dive records shall include, but not limited, to the following:

1. Type of Dive
2. Date
3. Name of Dive Supervisor
4. Name and Role of Dive Members
5. Location
6. Surface and Subsurface Environmental Conditions
7. Dive Profile
8. Unusual Incidents 1. Each agency shall retain all written records for active members. Records connected to non-active member shall be retained a minimum of five (5) years beyond the individuals last dive-related activity.

History

• STATUTORY AUTHORITY: 26 M.R.S. §565
• EFFECTIVE DATE: January 5, 2009 – filing 2008-615
• EFFECTIVE DATE: November 20, 2021 – filing 2021-233

Chapter 6 Recording Occupational Injuries and Illnesses in the Public Sector

Code Me. R. 12-179 Ch. 6 Recording Occupational Injuries and Illnesses in the Public Sector {#sec-12-179-ch.-6 omnilex-key=us-me-regs-official--dept-labor--12-179 Ch. 6}

Summary: The purpose of this chapter is to incorporate by reference rules governing the recording of occupational injuries and illnesses as promulgated by the Federal Occupational Safety and Health Administration at 29 CFR Part 1904, most recently amended on January 1, 2024.

6.1 Incorporation by reference

The State Board of Occupational Safety and Health adopts the Regulation and Related Interpretations for Recording and Reporting Occupational Injuries and Illnesses as adopted by the US Department of Labor, Occupational Health and Safety Administration at Title 29 Code of Federal Regulations Part 1904, revised as of January 1, 2024.

6.2 Exception to 29 CFR 1904.2 - Industry Exemption

The rule for "Partial Exemptions for Certain Establishments" (under 29 CFR 1904.2) does not apply to public sector establishments in the state of Maine. See the clarifications below:

A. All public sector employers with eleven or more employees at any time during the calendar year preceding the current calendar year shall maintain records of occupational injuries and illnesses (OSHA forms 300, 300A, 301).

B. A public sector employer who had no more than ten employees at any time during the calendar year preceding the current calendar year is exempt unless the employer is notified in advance and in writing by the Bureau of Labor Standards that it has been selected to participate in the Survey of Occupational Injuries and Illnesses (SOII). If that is the case the employer must maintain all appropriate occupational injury and illness forms (OSHA forms 300, 300A, 301).

6.3 Supplement to 29 CFR 1904.46 - Definition of "Employee"

The definition of "Employee" in 29 U.S.C. 652, as referenced by 29 CFR 1904.46, is expanded for purposes of this chapter to include: any person who is employed, required, permitted, elected, or volunteers to work on behalf of the employer.

6.4 Supplement to 29 CFR 1904.46 - Definition of "Employer"

The definition of "Employer" in 29 U.S.C. 652, as referenced by 29 CFR 1904.46, is expanded for purposes of this chapter to include: any state, county, municipal corporation, school district or other political corporation or political subdivision having employees. For purposes of applying this chapter the Bureau shall consider the highest organizational unit to be the employer. (For example: The state department rather than the bureau, the town rather than the municipal department.).

6.5 Supplement to 29 CFR 1904.32 - Company executive for certification of annual summary

The requirement of certifying the annual summary log, a company executive under 29 CPR 1904.32 is expanded to include: a town or city manager, the commissioner of a state department, a county administrator or sheriff, a school superintendent or principal, or a manager of a special district. It may also be the highest ranking supervisor at the establishment.

6.6 Supplement to 29 CFR 1904.39 – Reporting fatalities, hospitalizations, amputations, and losses of an eye as a result of work-related incidents

The requirement of reporting a serious incident, as referenced by 29 CFR 1904.39, is expanded to include: a fracture or amputation of any body part. This notification is required regardless of whether the employee requires inpatient hospitalization.

6.7 Supplement to 29 CFR 1904.42 - Statistical Program

A. The Bureau of Labor Standards is the State Grant Agency that conducts the annual Survey of Occupational Injuries and Illnesses (SOII) in the State of Maine under a grant provided by the U. S. Bureau of Labor Statistics. The Bureau will conduct this survey in a manner designed to produce estimates for all Maine public sector classifications which meet U. S. Bureau of Labor Statistics publication standards.

B. The Bureau of Labor Standards will maintain a complete listing of state and local government and all other public sector employers in Maine, including pertinent addresses, employment and contact information and provide that list to the Federal Bureau of Labor Statistics in timely fashion, to be incorporated into the SOII survey sampling frame for each respective reporting year.

6.8 Electronic Submission of OSHA Injury and Illness Records

All rules detailed under 29 CFR 1904.41 apply to Maine public sector employers.

Please note that the only Maine public sector establishments subject to electronic submission are those establishments covered under 1904.41(a)(l), 1904.41(a)(2) and those establishments whose NAICS code is listed under Appendix A to Subpart E of Part 1904-Designatcd Industries for §1904.41(a)(1)(i) , or Appendix B to Subpart E of Part 1904—Designated Industries for § 1904.41(a)(2).

B. Specifically, certain public sector establishments will NOT be required to electronically submit their OSHA injury and illness records but are still required to maintain the OSHA 300, 300A, 301 (or equivalent) forms and must still comply with a request from the Federal Bureau of Labor Statistics under 1904.42 (The Survey of Occupational Injuries and Illnesses) . These establishments include (but are not limited to): public elementary and secondary schools, public universities and colleges, police departments, fire departments, parks and recreation departments, town administration, etc.

6.9 Overlap with MRSA, Title 26, Chapter 1, Section 2

MRSA, Title 26, Chapter 1, Section 2 imposes obligations to report certain workplace injuries or deaths. Employers are required to comply with both the statute and 29 CFR Part 1904, as adopted by this Chapter. Where there is overlap between the statute and this Chapter, employers must comply with whichever requirements is more protective.

History

• STATUTORY AUTHORITY: 26 M.R.S. §565
• EFFECTIVE DATE: January 1, 1992 – filing 91-427
• AMENDED: November 1, 1993 – filing 93-287
• EFFECTIVE DATE (ELECTRONIC CONVERSION): December 25, 1996
• NON-SUBSTANTIVE CHANGES: August 29, 1997 - converted to Microsoft Word for Windows
• AMENDED: March 2, 2002 – filing 2002-73
• AMENDED: June 10, 2018 – filing 2018-096
• AMENDED: December 15, 2019 – filing 2019-225
• AMENDED: November 20, 2021 – filing 2021-234
• AMENDED: August 25, 2024 – filing 2024-189

Chapter 7 Minimum Driver Training Requirements for Fire Apparatus

Code Me. R. 12-179 Ch. 7 Minimum Driver Training Requirements for Fire Apparatus {#sec-12-179-ch.-7 omnilex-key=us-me-regs-official--dept-labor--12-179 Ch. 7}

Summary: This standard identifies the minimum job performance requirements for career and volunteer fire fighters who drive fire apparatus in order to reduce accidents, injuries and loss of fire equipment.

SECTION I. APPARATUS DRIVER OPERATING PROCEDURES AND POLICIES

All Maine Fire Departments must establish Standard Operating Procedures or Policies (SOPs) for all fire apparatus drivers that, at a minimum, include the following:

A. All apparatus drivers must possess a valid driver’s license.

B. The Fire Department shall have written SOPs/Policy for:

1. Apparatus driver selection.

2. Annual review of each apparatus driver’s motor vehicle driving history by the Chief.

3. Emergency vehicle response.

4. Use of seatbelts.

5. Backing the apparatus.

6. Apparatus maintenance.

C. Each emergency fire apparatus must have a proper State of Maine motor vehicle inspection.

SECTION II. APPARATUS DRIVER TRAINING REQUIREMENTS

All Maine Fire Departments must establish training programs for all fire apparatus drivers that, at a minimum, include the following:

A. A review of all applicable Maine Title 29-A motor vehicle laws.

B. Apparatus drivers must complete an Emergency Vehicle Operations Course (EVOC), or attend Commercial Driver License (CDL) training or other training that meets National Fire Protection Association (NFPA) 1002 training for drivers.

C. Apparatus drivers must have a general knowledge of the specific vehicle(s), equipment and their proper operation.

D. Apparatus drivers’ skills must be evaluated on each vehicle they will drive using a skills evaluation form such as: Bureau of Labor Standards (BLS), Volunteer Fireman Insurances Services (VFIS), Maine Municipal Association (MMA) or other.

E. Apparatus drivers’ skills must be assessed every 3 years.

SECTION III. APPARATUS DRIVER APPROVAL

Apparatus drivers must be approved by the Chief.

SECTION IV. APPARATUS DRIVER TRAINING RECORDS

Individual apparatus driver training records must be maintained for duration of the individual’s employment.

History

• STATUTORY AUTHORITY: 26 M.R.S. §2107
• EFFECTIVE DATE: March 2, 2011 – filing 2010-617
• AMENDED: June 10, 2018 – filing 2018-097

Chapter 8 Occupational Safety and Health Standards for Whistleblower/Discrimination in the Public Sector

Code Me. R. 12-179 Ch. 8 Occupational Safety and Health Standards for Whistleblower/Discrimination in the Public Sector {#sec-12-179-ch.-8 omnilex-key=us-me-regs-official--dept-labor--12-179 Ch. 8}

Summary: The purpose of this Chapter is to incorporate by reference where applicable rules governing Occupational Safety and Health as promulgated by the Federal Occupational Safety and Health Administration at 29 CFR Part 1977 as of June 1, 2018.

8.1 Prohibition Against Discrimination

As set forth in 26 M.R.S. §570, a person may not discharge or in any manner discriminate against an employee because that employee has filed any complaint concerning an alleged occupational safety or health hazard or has testified or is about to testify in any proceeding relating to employee safety and health or because of the exercise by the employee on behalf of the employee or others of any right under this chapter.

Any employee who believes that the employee has been discharged or otherwise discriminated against by any person in violation of this section may, within 30 days after the alleged violation occurs, file a complaint with the director, alleging discrimination. Upon receipt of the complaint, the director shall conduct an investigation as the director determines is appropriate. If upon investigation the director determines that the provisions of this chapter have been violated, the director shall bring an action in the Superior Court in the county in which the alleged violation occurred. In any action, the Superior Court has jurisdiction, for cause shown, to restrain violations of this section and order all appropriate relief, including rehiring or reinstatement of the employee to the employee's former position with back pay.

Within 90 days of the receipt of a complaint filed under this section, the director shall notify the complainant of the director's determination.

8.2 Incorporation by Reference

In addition to the provisions of state law in the preceding section, the State Board of Occupational Safety and Health adopts where applicable to public employees under the authority of the Board the Standards for Occupational Safety and Health as promulgated by the U.S. Department of Labor, Occupational Safety and Health Administration as Title 29 Code of Federal Regulations , Part 1977, revised as of June 1, 2018.

8.3 Exception:

All references to Secretary of Labor in 29 CFR Part 1977 shall mean Director, Bureau of Labor Standards.

History

• STATUTORY AUTHORITY: 26 MRS §§ 569, 570
• EFFECTIVE DATE: July 7, 2019 – filing 2019-110

Chapter 9 Occupational Safety and Health Standards for Issuing Variances in the Public Sector

Code Me. R. 12-179 Ch. 9 Occupational Safety and Health Standards for Issuing Variances in the Public Sector {#sec-12-179-ch.-9 omnilex-key=us-me-regs-official--dept-labor--12-179 Ch. 9}

Summary: The purpose of this Chapter is to incorporate by reference where applicable rules governing Occupational Safety and Health as promulgated by the Federal Occupational Safety and Health Administration at 29 CFR Part 1905 as of June 1, 2018.

9.1 Variance

As set forth in 26 M.R.S. §571, any affected employer may apply to the director for order for a variance from a standard promulgated under this chapter. Affected employees shall be given notice of each application and an opportunity to participate in a hearing. The director shall issue the order if he determines on the record, after a hearing and, where appropriate, an inspection, that the proponent of a variance has demonstrated by a preponderance of the evidence that the conditions, practices, means, methods, operations or processes used or proposed to be used by an employer will provide employment and places of his employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard. Such an order may be summarily revoked by the director on his own motion or modified or revoked by the director upon application by an employer or employee in the manner prescribed for its issuance. Any person aggrieved by an order of the director may appeal, at any time, from the order to the board under the process established in 26 M.R.S. §568.

9.2 Incorporation by Reference

In addition to the provisions of state law in the preceding section, the State Board of Occupational Safety and Health adopts where applicable to public employees under the authority of the Board the Standards for Occupational Safety and Health as promulgated by the U.S. Department of Labor, Occupational Safety and Health Administration as Title 29 Code of Federal Regulations , Part 1905, revised as of June 1, 2018.

9.3 Exception

All references to Secretary of Labor in 29 CFR Part 1905 shall mean Director, Bureau of Labor Standards.

History

• STATUTORY AUTHORITY: 26 MRS §§ 569, 571
• EFFECTIVE DATE: July 7, 2019 – filing 2019-111

Chapter 10 Occupational Safety and Health Standards for Section 1908 Consultation Guidelines in the Public Sector

Code Me. R. 12-179 Ch. 10 Occupational Safety and Health Standards for Section 1908 Consultation Guidelines in the Public Sector {#sec-12-179-ch.-10 omnilex-key=us-me-regs-official--dept-labor--12-179 Ch. 10}

Summary: The purpose of this Chapter is to incorporate by reference where applicable rules governing Occupational Safety and Health as promulgated by the Federal Occupational Safety and Health Administration at 29 CFR Part 1908 as of June 1, 2018.

10.1 Incorporation by Reference

The State Board of Occupational Safety and Health adopts where applicable to public employees under the authority of the Board the Standards for Occupational Safety and Health as promulgated by the U.S. Department of Labor, Occupational Safety and Health Administration as Title 29 Code of Federal Regulations , Part 1908, revised as of June 1, 2018.

History

• STATUTORY AUTHORITY: 26 MRS §§ 565, 569
• EFFECTIVE DATE: July 7, 2019 – filing 2019-112

Chapter 11 Occupational Safety and Health Standards for Worker Walkaround Representative Designation

Code Me. R. 12-179 Ch. 11 Occupational Safety and Health Standards for Worker Walkaround Representative Designation {#sec-12-179-ch.-11 omnilex-key=us-me-regs-official--dept-labor--12-179 Ch. 11}

Summary: The purpose of this Chapter is to clarify who may participate in walkaround inspections as an “employee representative,” and, at a minimum, conform to Federal Occupational Safety and Health Administration 29 CFR Part 1903.8 revised as of May 31, 2024, requirements.

11.1 Walkaround Representative Designation

As set forth in 26 M.R.S. §44-A. Walkaround inspections: “A representative of the employer and an authorized employee representative shall be given an opportunity to accompany the director or his authorized agent during the physical inspection of the workplace of any employer, subject to this section, for the purpose of aiding such inspection. Where there is no authorized employee representative, the director or his authorized agent shall consult with a reasonable number of employees concerning matters of safety in the workplace. The employee representative shall not lose any privilege or compensation during or because of his attendance in any such inspection.”

One or more of the representatives authorized by employees may be an employee of the employer or a third party. When the representative(s) authorized by employees is not an employee of the employer, they shall be permitted to accompany the Compliance Safety and Health Officer during the inspection for the purpose of aiding such inspection, including by helping the compliance officer receive valuable health and safety information from workers who may not be able or willing to provide such information absent the representative.

The intent of this language is to comply, at a minimum, with Title 29 Code of Federal Regulations, Part 1903.8, revised as of May 31, 2024.

History

• STATUTORY AUTHORITY: 26 M.R.S. §565
• EFFECTIVE DATE (NEW): May 24, 2025 – filing 2025-116

12-180 Maine Labor Relations Board

Chapter 10 General Rules

Code Me. R. 12-180 Ch. 10 General Rules {#sec-12-180-ch.-10 omnilex-key=us-me-regs-official--dept-labor--12-180 Ch. 10}

SUMMARY: This chapter defines certain terms used throughout the rules of the Maine Labor Relations Board and contains other rules of general application.

§ 1. Effective Date

The rules of the Maine Labor Relations Board (Board) contained in Chapters 10 through 13 are effective as of July 1, 2025. All actions pending as of that date are subject to these rules.

§ 2. Applicability

The Board’s rules apply to employers, employees, employee organizations or bargaining agents as defined in the Municipal Public Employees Labor Relations Law , 26 M.R.S.A. §962, the State Employees Labor Relations Act , 26 M.R.S.A. §979-A, the University of Maine System Labor Relations Act , 26 M.R.S.A. §1022 or the Judicial Employees Labor Relations Act , 26 M.R.S.A. §1282.

§ 3. Fees and Expenses

The parties are required to share the costs of the Board members’ per diem and expenses for hearings held on Prohibited Practice Complaints, Interpretive Rulings, and appeals of unit matters or appeals of election matters. No fees are required for costs related to prehearing conferences, unit composition hearings or election procedures.

§ 4. Executive Director

Whenever a rule refers to the executive director, the action or responsibility may be delegated to the executive director’s designee.

§ 5. Definition of Working Days

"Working days" means those days when State offices in Augusta are open for business.

§ 6. Computation of Time Periods

In computing any period of time prescribed or allowed by these rules or by any applicable statute, the day of the act or event after which the designated period of time begins to run is not included. The last day of the period is included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.

§ 7. Filing

1. Electronic Filing Required. Except as provided in subsections 4 and 5, all correspondence, motions, petitions, complaints and any other documents filed with the Board shall be filed electronically via internet transmission to the Board’s general email address, mlrb@maine.gov, in the manner provided for in this section.

2. Electronic Filing Procedure. All documents filed electronically must be filed pursuant to the following procedure.

A. The filing shall include an email correspondence to the Board that identifies the name of the person or representative making the filing and the name of the party in whose name the document is being filed.

B. Documents filed electronically must be in Microsoft Word® or PDF format and must be capable of being readily printed or otherwise reproduced clearly and legibly on paper 8 and 1/2 inches by 11 inches in size. Documents for filing must be included as an attachment to the email required in paragraph A.

C. When a signature is required for a document to be filed with the Board, the document must either be signed by hand and scanned as a PDF file or must be signed electronically in the following format: “/s/ [signatory’s name].”

D. Documents submitted to the individual email addresses of Board members, the executive director, Board counsel or other staff members shall be deemed not filed.

3. Filing Date. A document submitted to the Board electronically will be deemed to be filed or received on the date and time in which the Board received the document at the Board’s general email address, mlrb@maine.gov, in accordance with this section. A document will be considered filed on a certain day if it is received electronically as of 11:59 p.m. on that day. The date and time that a document has been received electronically will be noted in a Notice of Electronic Filing, which will be sent by the Board electronically to the filing party.

4. Filing by Mail or Hand Delivery. Parties who are unable to submit documents electronically may submit documents by mail or hand delivery. Such filings or submissions must include a statement certifying that the party was unable to transmit the documents electronically, including a description of the reasons that electronic transmission of the documents could not be accomplished. The Board may reject any such filings that it finds could have been submitted electronically. A party may hand deliver a document for filing at the Board’s office, by prior arrangement, between the hours of 8:30 a.m. and 4:30 p.m. on Monday through Friday, excepting dates on which the office is closed due to State holidays, extreme weather or emergency.

5. Showing of Interest and Employee Authorization Forms. Notwithstanding subsections 1, 3 and 4, this subsection governs submission of a petition that requires showing of interest or employee authorization forms. Such petition must be filed electronically, in accordance with this section, but need not include electronic submission of the accompanying showing of interest or employee authorization forms. Filing of the petition will not be considered complete until the Board has receivedat its office the signed original showing of interest or employee authorization forms by mail, delivery service or hand delivery, or until the Board has received a digital copy of the hand-signed original showing of interest or employee authorization forms. In the event that a petitioner submits a digital copy of the showing of interest or employee authorization forms, the petitioner must retain the originals and must provide them to Board staff if requested.

§ 8. Service

1. Electronic Service. Except in the case of service of a prohibited practice complaint, amended complaint or subpoena, whenever a rule requires that a party serve a copy of a document on another party, service may be effected exclusively by email.

For service of a prohibited practice complaint or amended complaint, service will be considered complete on the date that service was provided to the other party by email, so long as service by mail, hand delivery or delivery via a delivery service occurred on the same calendar day.

2. Certificate of Service. Whenever a rule requires that a party serve a copy of a document on another party, the serving party may demonstrate compliance with the requirement of service by submitting to the Board a signed statement certifying service. The statement should include a written declaration of the names and addresses of the parties served and the date and manner of service. The following is an example of a statement certifying service: "I, _______, certify that on ______, I served a copy of this document on _____(name of party) by mail/hand delivery/delivery via _____ delivery service (indicate which method), at the following address:." Proof of service, such as a certified mail return card, is not required except in the case of a prohibited practice complaint or amended complaint. Such proof will satisfy the requirement for a certificate of service. A sample certificate of service is available from the Board.

3. Proof of Service. For a prohibited practice complaint or amended complaint, the executive director may at any time require the complainant to file proof of the date that the complaint was physically delivered on the respondent if proof of service is not filed with the complaint. Proof of service may be in the form of either a certified mail receipt signed by the recipient addressee or an agent of the addressee, a signed and dated acknowledgment of receipt by hand delivery, a dated confirmation of delivery from the Post Office or other delivery service, a dated statement of refusal of service or a copy of the sent email that includes the date and the email address to which it was sent.

§ 9. Official Transcripts

If the Board causes the proceedings to be transcribed, the court reporter producing the transcript shall make copies available to the parties to the proceeding upon request and prompt tender of the appropriate fee. Requests for transcripts must be made to the court reporter. The Board's copy of the transcript is available for inspection, but not copying, by the parties. Transcripts prepared at the directive of the Board or its executive director are the official transcripts of the Board proceeding. A party to a Board hearing seeking to have the hearing transcribed may, with prior approval of the Board, make arrangements for transcription by a qualified court reporter. If such arrangements are made and a transcript is produced, a copy must be furnished to the Board without cost and to the other parties upon request and tender of the appropriate fee. A transcript prepared at the request of a party may, at the discretion of the Board, be reviewed by the Board for accuracy and, if approved by the Board, deemed the official transcript.

§ 10. Enlargement of Time Periods

1. Request. A party wishing to request an extension of a deadline for filing a pleading, motion or other document, or a postponement of a hearing or prehearing conference, must do so in accordance with the following guidelines.

A. Prior to requesting an extension or postponement, the requesting party must notify all other parties to the matter of the request and ask whether the other parties join, consent, are neutral or object to the request.

B. A party’s request for an extension or postponement shall be made in writing and communicated by email to the Board’s Executive Director and to all parties to the matter.

C. An extension or postponement request must briefly describe the reason for the request.

D. If the request is not made jointly or consented to by all other parties, the requesting party must state the efforts made to contact the other parties before making the request and state the parties’ position on the request, if known. Except in cases that require immediate action, the Board’s Executive Director will attempt to contact parties that have not joined or consented to an extension or postponement request to determine their position on the request.

E. An extension or postponement request made less than 14 days prior to the deadline or hearing date, whether joint or individual, must state the reason the request could not have been made earlier.

2. Board Action. When an act must be done within a specified time period and, prior to the expiration of that period the Board receives a request for enlargement of that time, the Board may in its discretion with or without motion or notice enlarge that time period for good cause shown. Upon motion made after the expiration of the specified period, the Board may extend the period where the failure to act was the result of excusable neglect.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. §968 sub-§3
• EFFECTIVE DATE: January 1, 2001 – filing 2000-524
• AMENDED: April 1, 2020 – filing 2020-034
• AMENDED: July 1, 2023 – filing 2023-088
• AMENDED: July 1, 2025 – filing 2025-127 [Note: Effective date of amendment was corrected on 7/1/2025, pursuant to § 1 of the rule.]

Chapter 11 Bargaining Unit Composition and Representation Matters

Code Me. R. 12-180 Ch. 11 Bargaining Unit Composition and Representation Matters {#sec-12-180-ch.-11 omnilex-key=us-me-regs-official--dept-labor--12-180 Ch. 11}

SUMMARY: This chapter contains rules concerning petitions to create, modify, or merge bargaining units, petitions to hold bargaining agent elections, petitions to merge bargaining agents, hearings on unit composition issues, procedures for bargaining agent certification and decertification, and appeals on representation matters.

REPRESENTATION PETITIONS: PETITIONS TO CREATE OR MODIFY BARGAINING UNITS AND PETITIONS TO HOLD BARGAINING AGENT ELECTIONS

§ 1. Types of Representation Petitions

Petitions are used to request Maine Labor Relations Board (Board) proceedings to create or modify a bargaining unit or to conduct a bargaining agent election. The following are the different types of representation petitions used at the Board.

1. Unit Determination Petition. When there is a disagreement on the categories of jobs to be included in a bargaining unit, a petition for unit determination should be filed with the Board in which the petitioner proposes an appropriate bargaining unit. A unit determination petition is also used when the goal is to sever a group of positions from an existing unit to create a new separate unit or to expand an existing unit by adding a new group of jobs.

1-A. Majority sign-up petition. A majority sign-up petition is used when a majority of the employees in a unit appropriate for bargaining have signed valid authorizations designating the employees' organization specified in the petition as their bargaining agent and no other individual or labor organization is currently certified or recognized as the bargaining agent of any of the employees in the unit. When a majority sign-up petition concerns a proposed bargaining unit, the petition will be presumed to be a concurrent petition for unit determination.

2. Election Petition. An election petition is necessary for a bargaining agent election, a decertification election or a combined election to decertify the incumbent and certify a new bargaining agent.

3. Unit Clarification. A unit clarification petition is used when either the employer or the incumbent bargaining agent wishes to modify an existing bargaining unit. A unit clarification petition is the only way to modify the composition of a unit during the term of a collective bargaining agreement, absent agreement of the parties.

4. Unit Merger Petition. A petition for a unit merger election is used when two bargaining units that are represented by the same bargaining agent want to combine to form a single bargaining unit.

4-A. Bargaining Agent Merger Petition. A petition for a bargaining agent merger election is used when two or more bargaining agents that are members or affiliates of the same public employee organization want to combine to form a single bargaining agent.

5. Petition to Intervene. A petition to intervene is appropriate when a third party wishes to become a party in a unit determination hearing, majority sign-up petition or a bargaining agent election or decertification.

6. Petition to contest exclusionary designation. A petition to contest exclusionary designation may be filed by an individual who has been excluded from collective bargaining because his or her position does not fit within the statute’s definition of covered employee.

§ 2. Petitions Are Necessary When Parties Disagree

Petitions are necessary when the parties are unable to agree on the composition of the bargaining unit or on the designation of the bargaining agent.

§ 3. When Parties Agree, Petitions Are Not Necessary

Petitions are not necessary when the parties have agreed on the composition of the bargaining unit or when the employer has agreed to voluntarily recognize the bargaining agent.

1. Agreement on Bargaining Unit. When the parties agree that certain categories of jobs constitute an appropriate unit, the parties shall sign an Agreement on Appropriate Bargaining Unit form (MLRB Form 1) and file it with the Board. The unit agreed to in a properly-filed MLRB Form 1 may not be challenged by either party for a period of one year from the date of filing with the Board. The MLRB Form 1 may be modified or withdrawn by agreement of the parties at any time, as long as there is no pending question concerning representation. An MLRB Form 1 submitted to modify a unit should indicate that nature of the modification.

2. Voluntary Recognition of Bargaining Agent. When the parties agree that a prospective bargaining agent represents the majority of employees in an established bargaining unit, they shall file a Voluntary Recognition Form (MLRB Form 3) with the Board. The voluntary recognition may not be challenged for one year from the completion of the posting period required by the executive director under section 15 of this Chapter.

3. Notice to Employees of Agreement or Recognition. Once a voluntary recognition form or an agreement on appropriate bargaining unit has been properly filed, the executive director shall issue Notices to Employees of the filing. The notices must advise employees of the unit agreement or voluntary recognition, generally describe the rights of employees and explain the legal effect of the filing. The notices must be distributed or posted by the employer in accordance with section 15 of this Chapter.

§ 4. Petitions Are Formal Requests for Board Action

Petitions are formal requests for Board action. All petitions must be in writing and must contain a declaration by the petitioner or the petitioner’s representative under penalty of law that its contents are true and correct to the best of the declarant’s information and belief.

§ 5. Who May File Petitions

Generally, a petition may be filed by any public employer or any public employee, group of public employees, or public employee organization representing the employees, whether or not formally organized. The specific limitations on who may file petitions are listed below.

1. Unit Determination Petitions. A unit determination petition may be filed by an employer, an employee, a group of employees or any individual or employee organization acting on their behalf.

1-A. Majority Sign-up Petition. A majority sign-up petition may be filed by an employee, a group of employees or any individual or employee organization acting on their behalf.

2. Bargaining Agent Election Petitions. A bargaining agent election petition may be filed by an employer, an employee, or a group of employees or any individual or employee organization acting on their behalf.

3. Decertification Election. A decertification election petition or a petition to decertify the incumbent bargaining agent and elect a new bargaining agent may be filed by an employee, a group of employees or any individual or employee organization acting on their behalf. Neither the employer nor the incumbent bargaining agent may file a decertification petition or cause a decertification petition to be filed.

4. Unit Clarification Petition. A unit clarification petition may be filed only by the incumbent certified or recognized bargaining agent or the employer.

5. Petition for Unit Merger Election. A petition for a unit merger election may be filed only by the employer or the incumbent bargaining agent.

5-A. Petition for Bargaining Agent Merger Election. A petition for a bargaining agent merger election may be filed only by two or more certified bargaining agents that are members or affiliates of the same public employee organization.

6. Petition to Intervene. A petition to intervene may be filed by an organization seeking to intervene in a unit determination proceeding, a majority sign-up petition a bargaining agent election or a decertification election.

7. Petition to Contest Designation as Excluded Employee. Any employee who desires to contest the appropriateness of an exclusionary designation which would operate or has operated to exclude that employee from the coverage of an otherwise applicable Labor Relations Act may seek a determination on the appropriateness of that exclusion by filing a unit determination petition.

§ 6. When to File Petitions

The following time restrictions apply to the filing of petitions with the Board.

1. Contract Bar. If a valid collective bargaining agreement is in effect which covers any or all of the employees or positions included in the petition, the unit determination petition, election petition or decertification petition must be filed in the window period beginning 90 and ending 60 days prior to the expiration date of that contract. A petition filed more than 90 days or less than 60 days prior to the expiration of the contract will be dismissed. Representation proceedings properly initiated by filings during the window period may be processed at any time after the filing regardless of the existence of a collective bargaining agreement. If there is no collective bargaining agreement in effect or the collective bargaining agreement has expired and a successor agreement has not become effective, a unit determination petition, an election petition or a decertification petition may be filed at any time. This contract bar rule does not apply to unit clarification petitions or merger petitions.

2. Certification Bar. No question concerning representation may be raised within one year of a voluntary recognition, certification by majority sign-up, certification by election or attempted certification. An election in which the incumbent bargaining agent is decertified and in which no other prospective bargaining agent appeared on the ballot is not considered a certification or attempted certification within the meaning of this rule.

3. Limitation on Unit Clarification Petitions. A unit clarification petition may be filed only by the employer or the incumbent certified or recognized bargaining agent. A unit clarification petition is not appropriate unless the circumstances surrounding the formation of an existing bargaining unit are alleged to have changed sufficiently to warrant modification in the composition of the bargaining unit, the parties are unable to agree on appropriate modifications and there is no question concerning representation. Unit clarification petitions may be denied if the question raised should properly be settled through the election process, or the petition requests the clarification of unit placement questions which could have been but were not raised prior to the conclusion of negotiations which resulted in an agreement containing a bargaining unit description. Unit clarification petitions must not be filed with such frequency as to constitute harassment.

§ 7. Contents of Petition

The petition must be filed with the Board in accordance with the filing requirements of Chapter 10, section 7. Petition forms are available from the Board. The petition must contain:

1. Petitioner’s Name. The name, address and telephone number of the petitioner and any representative for correspondence other than the petitioner.

2. Employer’s Name. The name and address of the employer of the affected employees and the name, address and phone number of a representative of the employer authorized to receive notices or requests for information, if known by the petitioner.

3. Bargaining Unit Description. A description of the existing collective bargaining unit or the unit claimed to be appropriate and the estimated total number of employees in that unit. The description must include the job classifications of employees included in or excluded from the existing or proposed unit and an estimate of the number of employees in each included classification. If less than all positions in any specific job classification are proposed to be included or excluded from the unit, the description must include a listing of the positions to be included and excluded.

4. Collective Bargaining Agreement. A copy of the current or most recent collective bargaining agreement covering the bargaining unit, if any.

5. Name of Employee Organizations. The names, addresses and telephone numbers of any employee or employee organization other than the petitioner claiming to represent any of the employees in the proposed unit and a copy of each written agreement covering any employee in that unit.

6. Name of Proposed Bargaining Agent. The name of the prospective bargaining agent as it will appear on the ballot, if election is requested.

7. Other facts. Any other facts relevant to the petition.

8. Remedy Sought. A statement of the action or remedy sought from the Board.

9. Employer Petition. A petition for unit determination or bargaining agent election submitted by the employer must include a statement that one or more employees or employee organizations have presented to it a claim to be recognized as the representatives in a bargaining unit.

10. Agreement Attempted. A petition for unit determination submitted by either the employer­, an employee or an employee organization must state that the parties are unable to agree on an appropriate bargaining unit.

11. Showing of Interest. A petition for unit determination, bargaining agent election, or decertification submitted by an employee or employee organization must be accompanied by showing of interest forms from 30 percent of the employees in the proposed or existing bargaining unit. If both a unit determination and a bargaining agent election are sought, the same showing of interest forms may be used for both purposes.

11-A. Employee Authorization. A petition for bargaining agent certification by majority sign-up submitted by an employee, group of employees or any individual or employee organization acting on their behalf must be accompanied by employee authorization forms from a majority of the employees in the proposed or existing bargaining unit. If both a unit determination and a majority sign-up certification are sought, the employee authorization forms may be used in place of the showing of interest forms.

12. Unit Clarification Petition. A unit clarification petition must include a listing of the job classifications to be added or removed from the unit and an allegation that since the formation of the unit the circumstances have changed enough to warrant modification of the unit. The petition must also include a brief description of the nature of the changed circumstances and a statement that the parties are unable to agree on modifications. Showing of interest forms are not necessary for unit clarification petitions.

13. Petition to Contest Designation as Excluded Employee. A petition to contest designation as an excluded employee must include items specified in subsections 1, 2, 4 and 5 above and must include a statement of the specific facts upon which the dispute regarding the exclusion is based. No showing of interest is required.

§ 8. Showing of Interest and Employee Authorization

The required showing of interest forms that accompany a petition for unit determination, bargaining agent election or decertification, and the required employee authorization forms that accompany a petition for bargaining agent certification by majority sign-up, must be submitted to the Board only. The Board will determine the adequacy of the showing of interest or employee authorization based upon the estimated number of employees in the proposed unit. The showing of interest forms and employee authorization forms must comply with the following requirements.

1. Form of Evidence. The showing of interest or employee authorization must consist of original separate documents, with a separate document being signed by each individual prospective unit employee who supports creation of the bargaining unit or representation, and may be in the form of effective membership or authorization cards or statements. A digital copy of these documents may be filed with the Board in lieu of the originals, provided the petitioner retain the originals and provide them to Board staff if requested. Any form of evidence filed with the Board pursuant to this rule must contain, at a minimum:

A. The signature of the employee;

B. The typewritten or printed name of the employee;

C. A handwritten indication of the date the employee's signature was

obtained; and

D. For a showing of interest, a statement that the person signing desires to be represented by the petitioner for the purposes of collective bargaining.

E. For an employee authorization, a statement that the person signing designates the employee organization as the person’s bargaining representative for the purposes of collective bargaining.

Any signature which is undated or which shows that it was obtained more than 6 months prior to the filing of the showing of interest or employee authorization with the Board is invalid for the purposes of calculating the showing of interest or employee authorization. Sample showing of interest forms and employee authorization forms are available from the Board.

2. Acceptance of Evidence. The executive director shall make the determination administratively on whether the showing of interest or employee authorization evidence is satisfactory in form or quantity. That determination is subject to review only by the Board, on the basis that specific portions of the showing were obtained by collusion, coercion, forgery, intimidation, fraud or misrepresentation, or are otherwise invalid.

§ 9. Review; Amendment; Action on Petition

The executive director shall review the petition for sufficiency upon filing with the Board and take action in accordance with this rule.

1. Grounds for Dismissal. The executive director shall dismiss a petition if it is not filed and adequate showing of interest forms or employee authorization forms are not submitted within the time periods specified by section 6 of this Chapter.

2. Order to Show Cause. At the executive director’s discretion, the executive director may offer a party the opportunity to show cause why the petition should not be dismissed prior to dismissing the petition.

3. Permitted Amendments. If the petition is filed in a timely manner but is not complete, the executive director shall serve on the petitioner a notice of errors and insufficiencies in the petition and shall provide a copy of that notice to the respondent. Amendments to petitions must be made within 15 calendar days of service of the notice of insufficiencies. Permitted amendments are effective as if made on the date the petition was filed.

4. Dismissal; Appeal. Insufficient petitions which are not amended during the time period specified in paragraph 3 must be summarily dismissed by the executive director, subject to appeal to the Board under section 30 of this Chapter. The notice of appeal must state with specificity the grounds upon which the request for review is based. The Board shall review the appropriateness of the summary dismissal as a matter of law and may also permit evidence of a party's excusable neglect regarding failure to amend. The Board shall allow oral argument upon request and may require that the parties file briefs.

5. Notification of Parties. If the petition is complete, the executive director shall transmit an official copy of the petition to the respondent within 24 hours with a letter indicating whether a response is required. This transmission may be made by electronic means.

§ 10. Posting of Petition on Internet

The Board shall post a true copy of each properly filed petition on the Board’s internet site. Insufficient petitions are not posted; amended petitions must be posted on the day the curative amendment is granted. The purpose of the posting is to inform the public of the filing of the petition. The posted petition may not be removed until either the election is held, the unit has been agreed upon by the parties, a unit determination hearing has been conducted or the petition has been withdrawn.

§ 11. Response to Unit Determination Petition

A written response to a unit determination petition must be filed with the Board within 15 calendar days of the date the Board provided the respondent with a copy of the petition. The response must indicate whether the respondent agrees that the unit proposed by the petitioner is appropriate and the basis of any objection. A copy of the response must be simultaneously served on the petitioner and any other respondents. If no response is filed by a respondent within the 15-day response period, or within an extension of time allowed by the executive director, the respondent will be deemed to have agreed to the appropriateness of the unit as proposed by the petitioner.

1. Challenge to Showing of Interest. If the employer wishes to challenge the showing of interest, the employer must include with its response an alphabetized list of all employees in the classifications specified by the petitioner for inclusion in any proposed unit. The alphabetized list must indicate the job classification of each employee. If the employer fails to provide the list, the Board will determine the adequacy of the showing of interest based upon the petitioner’s estimated number of employees in the proposed unit. If the employer challenges the authenticity of the signatures, copies of the employees’ signatures must be provided for comparison by the Board.

2. Disagreement on Appropriateness of Unit. If the respondent disagrees with any proposed unit, the response must include a detailed description of the unit which it considers to be appropriate. The respondent shall estimate the total number of employees in that unit, state the classifications of employees sought to be included in and excluded from the unit and estimate the number of employees in each classification.

3. Exclusions Claimed. If less than all positions in any specific classification are proposed by the respondent to be included in or excluded from the unit, the response must contain a listing and description of the positions to be included and excluded together with the statutory basis for each proposed inclusion and exclusion.

§ 12. Response to Unit Clarification Petition

A written response to a unit clarification petition must be filed with the Board within 15 calendar days of the date the Board provided the respondent with a copy of the petition. The respondent shall file with the Board a written response indicating whether it agrees with the modification proposed in the petition and the basis of any objection. A copy of the response must be simultaneously served on the petitioner. If no response is filed by a respondent within the 15-day response period, or within an extension of time allowed by the executive director, the respondent will be deemed to have agreed to the modification.

§ 12-A. Response to Majority Sign-up Petition

1. Notice to Employees. Once a majority sign-up petition has been properly filed, the executive director shall issue Notices to Employees of the filing. The notices must advise employees of the majority sign-up petition, generally describe the rights of employees and explain the legal effect of the filing. The notices must be distributed or posted by the employer in accordance with section 15 of this Chapter.

2. Objections. A party wishing to object to the filing of a majority sign-up petition must do so within 15 calendar days of the date the Board transmitted an official copy of the petition to the respondent. The permissible objections are limited to the following:

A. A party may object to the petition on the basis that one or more employees in the proposed or existing bargaining unit are currently represented by a bargaining agent.

B. A party may object to the petition on the basis that the executive director incorrectly determined that the petition was filed within the time frames established by section 6 of this Chapter. A party making such an objection must submit evidence supporting a reversal of the initial finding.

C. A party may object to the petition based upon a good faith doubt of the sufficiency of the employee authorization submitted. Any party making such an objection shall file with the objection an alphabetized list of the employees in the bargaining unit. The executive director will verify the contents of the list with the employer if it was submitted by a party other than the employer. If a party challenges the authenticity of the signatures, copies of the employees’ signatures must be provided by the employer for comparison by the Board.

D. If there has not been any collective bargaining activity in the bargaining unit for 5 or more years, that is, there has been no contract in effect for over 5 years and no negotiation sessions or attempts to negotiate have occurred, the employer may respond to a majority sign-up petition by objecting to the continued appropriateness of the bargaining unit and requesting a unit determination hearing. If the bargaining unit has been inactive for less than 5 years and is unrepresented at the time the petition is filed, the employer may respond by objecting to the appropriateness of the bargaining unit only if the employer alleges that there has been a substantial change in the circumstances since the expiration of the last collective bargaining agreement that warrants modification of the unit. The employer’s response must include a description of the changed circumstances affecting the continued appropriateness of the bargaining unit and a description of the unit it considers appropriate.

3. Majority Support. If the executive director determines that the petition is sufficient, the executive director will examine the demonstration of support. If the executive director finds that a majority of the employees in a unit appropriate for bargaining have signed employee authorization forms designating the employees' organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board or the executive director shall certify the employees' organization as the bargaining agent.

4. Minority Support. If the valid employee authorization forms do not demonstrate majority support, but constitute at least a 30 percent demonstration of support, the executive director shall call an election, pursuant to this Chapter, to determine whether the organization represents a majority of the members in the bargaining unit. If the employee authorization forms represent less than a 30 percent demonstration of support, the executive director shall dismiss the petition.

§ 13. Response to Election Petition or Decertification Petition

A party wishing to object to the filing of a bargaining agent election petition or a decertification election petition must do so within 5 working days of the date the Board provided an official copy of the petition to the respondent. If no response is filed by a respondent within the 5-day response period, the election will be scheduled. The permissible objections are limited to the following:

1. Objection to Timeliness of Filing. A party may object to the petition on the basis that the executive director incorrectly determined that the petition was filed within the time frames established by section 6 of this Chapter. A party making such an objection must submit evidence supporting a reversal of the initial finding, such as a copy of an applicable collective bargaining agreement.

2. Objection to Showing of Interest. A party may object to the petition based upon a good faith doubt of the sufficiency of the showing of interest submitted. Any party making such an objection shall file with the objection an alphabetized list of the employees in the bargaining unit. The executive director will verify the contents of the list with the employer if it was submitted by a party other than the employer. If a party challenges the authenticity of the signatures, copies of the employees’ signatures must be provided by the employer for comparison by the Board.

3. Objection to Continued Appropriateness of the Bargaining Unit. If there has not been any collective bargaining activity in the bargaining unit for five or more years, that is, there has been no contract in effect for over 5 years and no negotiation sessions or attempts to negotiate have occurred, the employer may respond to an election petition by objecting to the continued appropriateness of the bargaining unit and requesting a unit determination hearing. If the bargaining unit has been inactive for less than 5 years and is unrepresented at the time the petition is filed, the employer may respond by objecting to the appropriateness of the bargaining unit only if the employer alleges that there has been a substantial change in the circumstances since the expiration of the last collective bargaining agreement that warrants modification of the unit. The employer’s response must include a description of the changed circumstances affecting the continued appropriateness of the bargaining unit and a description of the unit it considers appropriate.

§ 14. Notices of Hearing and Notices of Election

Once a response is received or the period for filing a response has expired, the executive director shall schedule an election or a unit hearing or other type of representation hearing, if a hearing is necessary to resolve the dispute. The executive director shall issue Notices to employees and distribute them as provided by this rule.

1. Notice of Hearing. When a unit determination hearing or other type of representation hearing is scheduled, the executive director shall prepare a Notice of Hearing for delivery to the parties and posting by the employer. The Notice must advise employees that a petition was filed and must include a statement of the time, place and nature of the hearing, the names of the parties as determined by the executive director, and a statement of the unit claimed to be appropriate by the petitioner, by the employer and by any intervenors. The Notice must generally describe the method by which the matter will be resolved, the rights of employees and the opportunity for employees to participate in the proceeding.

2. Notice of Election. When a bargaining agent election or decertification election is scheduled, the executive director shall prepare a Notice of Election for posting by the employer that contains the information required by section 44 of this Chapter. The notices must advise employees of the pendency of the bargaining agent election petition and the period within which intervention petitions may be filed, and must generally inform employees of their rights.

§ 15. Posting of Notices by Employer

Whenever the executive director prepares a notice under this Chapter, the executive director shall administratively determine whether the employer shall post the notices or forward them to all affected employees by postpaid first class mail, electronic mail or by other acceptable means. The executive director shall specify the places and periods of posting, and the manner of determining the date of its commencement. The posting period may not be less than 7 calendar days, except for extraordinary circumstances. The employer shall take reasonable precautions to ensure that posted notices are not altered, covered, defaced or removed before the completion of the posting period and shall notify the executive director of satisfaction of the posting requirements.

§ 16. Posting of Notices by the Board

Any notice prepared under this Chapter and distributed to an employer must also be posted on the Board’s internet site.

§ 17. Petitions to Intervene

A petition to intervene in a previously requested unit determination proceeding, majority sign-up petition, bargaining agent election or decertification election must meet the requirements set forth in this rule.

1. Form and Filing for Intervention. A petition to intervene must conform to the requirements of section 7 of this Chapter, subsections 1 through 8.

2. Showing of Interest. The petition must be accompanied by written evidence that at least 10 percent of the employees in the unit proposed in the petition which initiated the proceedings desire to be represented by the intervention petitioner for the purposes of collective bargaining. This showing of interest evidence must be filed with the Board only and is subject to the requirements of section 8 of this Chapter.

3. Time of Filing. A petition to intervene in a unit determination proceeding, a majority sign-up petition, a bargaining agent election or a decertification election must be filed no later than 10 calendar days after the date of posting of the Notice of Hearing or Notice of Election required by section 14 or the Notice to Employees required by section 12-A of this Chapter.

4. Review of Petition. The executive director shall administratively examine the petition to intervene and its supporting documents for compliance with the pertinent statutory and rule requirements and take appropriate action, which may include granting or dismissing the petition.

5. Notification to Parties. If the petition is complete, the executive director shall transmit an official copy of the petition to the other parties within 24 hours with a letter indicating whether a response is required. This transmission may be made by electronic means.

6. Posting of Petition. The Board shall post a true copy of each granted petition to intervene on the Board’s internet site in accordance with section 10 of this Chapter.

7. Withdrawal of Initial Petition. Withdrawal of the initial unit determination petition, majority sign-up petition or election petition does not affect the processing of a timely-filed petition for intervention where the intervenor successfully supplements its showing of interest or employee authorization so as to constitute at least a 30 percent showing. The executive director shall specify a reasonable time period for such supplementation. Originally filed cards or forms are considered current for the purposes of supplementation.

( § 18 - § 20. Reserved.)

UNIT DETERMINATION AND UNIT CLARIFICATION HEARINGS AND APPEALS

§ 21. Notice of Unit Hearing

If necessary to resolve the dispute over the composition of the bargaining unit, the executive director may hold an evidentiary hearing. When a hearing is scheduled, a Notice of Hearing must be issued and distributed in accordance with section 14 of this Chapter. The Notice of Hearing and any amendments to it must be posted on the Board's internet site and a copy mailed or electronically transmitted to any person or organization that has previously requested notice of all proceedings on the petition.

§ 22. Criteria for Appropriate Bargaining Units

In determining whether a particular position should be included in a unit or whether a proposed unit is appropriate, the hearing examiner is required to apply the specific provisions in the Act governing the employees in question.

1. Excluded Employees. Persons who are excluded from the definition of employee under the applicable Act, 26 M.R.S.A. §962(6), §979-A(6), §1022(11) or §1282(5), may not be included in a bargaining unit.

2. Units Established by Statute. Bargaining units at the University of Maine System, the Maine Maritime Academy and the Maine Community College System must conform to the units established in 26 M.R.S.A. §1024-A to the extent required by that section.

3. Community of Interest. In determining whether a community of interest among employees exists, the hearing examiner shall, at a minimum, consider the following factors:

A. Similarity in the kind of work performed;

B. Common supervision and determination of labor relations policy;

C. Similarity in the scale and manner of determining earnings;

D. Similarity in employment benefits, hours of work and other terms and conditions of employment;

E. Similarity in the qualifications, skills and training of employees;

F. Frequency of contact or interchange among the employees;

G. Geographic proximity;

H. History of collective bargaining;

I. Desires of the affected employees;

J. Extent of union organization; and

K. The employer's organizational structure.

§ 23. Conduct of Hearing

The executive director shall conduct the hearing, if a hearing is held. The executive director may order the consolidation of petitions for hearing. As hearing examiner, the executive director has the power to administer oaths and to require by subpoena the attendance and testimony of witnesses, the production of books, records and other evidence relevant to issues raised by a unit determination petition, a unit clarification petition, or responses to the petition. The hearing examiner may also require the submission of written statements of fact, position or law prior to hearing. Any party may file a written application for subpoenas with the executive director in accordance with Chapter 12, §17. Witnesses subpoenaed by the Board are entitled to the same fees as are paid to witnesses in the Superior Court. A person served with a subpoena issued by the executive director may not refuse or neglect to appear or to testify or to produce books and papers relevant to the investigation, inquiry or hearing as commanded in that subpoena. Upon failure of any party to comply with a subpoena, the executive director may, absent constitutional, statutory or other privilege, disregard all related evidence offered by that party.

§ 24. Nature of Hearing

The purpose of the hearing is to develop a full and complete factual record. Each party bears the responsibility of producing evidence to support its contentions regarding the description of an appropriate unit or the proposed clarification. All testimony offered must be taken under oath or affirmation. A hearing transcript will be prepared for the Board and made available to the parties pursuant to Chapter 10, section 9.

§ 25. Rules Regarding Evidence

The strict rules of evidence observed by courts do not apply to representation hearings. The following rules regarding evidence apply:

1. Evidence. The hearing examiner shall admit evidence if it is the kind upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Irrelevant or unduly repetitive evidence may be excluded.

2. Rules of Privilege. The hearing examiner shall observe the rules of privilege recognized by law.

3. Written Evidence; Exception. No sworn written evidence may be admitted unless the author is available for cross-examination or subject to subpoena, except for good cause shown.

§ 26. Rights of Parties

Any party to the hearing shall have the right to be represented by counsel or by other representative, to examine and cross-examine witnesses and to offer documentary and other evidence. Stipulations may be offered with respect to any issue. Parties may request the issuance of subpoenas. The rules and procedures governing the issuance of subpoenas are set forth in Chapter 12, §17. The hearing examiner shall allow oral argument upon request, and, after consultation with the parties, may require briefs to be submitted. Any brief permitted to be filed must be filed in accordance with the filing requirements of Chapter 10, section 7. A copy of any brief filed with the Board must simultaneously be served on all parties to the matter.

§ 27. Ex Parte Communications Prohibited

No party or other person legally interested in the outcome of a hearing may communicate ex parte either directly or indirectly with the hearing examiner assigned to the case, in connection with any issue of fact, law or procedure.

§ 28. Report and Order

The hearing examiner shall render a report and order within a reasonable time either dismissing the petition in whole or in part or clarifying the unit, determining requests for exclusionary designations, determining an appropriate unit and directing an election or designating the organizations to appear on the ballot. If the report and order establishes a bargaining unit different from that proposed, the hearing examiner may require the supplementation of the showing of interest forms or employee authorization forms prior to scheduling an election or certifying a bargaining agent by majority sign-up. The hearing examiner may also take other appropriate action.

§ 29. Misconduct at a Hearing; Refusal of Witness to Answer Questions

Misconduct at a unit hearing is subject to the sanctions provided in Chapter 12, section 24.

§ 30. Appeal to Board

Any party in interest aggrieved by any ruling or determination of the executive director regarding a representation matter may appeal that ruling or determination to the Board. The appeal must be made in writing and must be made within 15 calendar days of the date of the ruling or determination. Objections to the conduct of an election by a Board agent must be made in accordance with section 54 of this Chapter.

1. Nature of Appeal. The appellate proceeding is not a hearing de novo . On appeal, the Board reviews the decision of the hearing examiner on the basis of the evidence presented to the examiner. An appealing party’s request for a transcript of the proceedings before a hearing examiner must be made with the notice of appeal and in accordance with Chapter 10, section 9.

2. Memorandum of Appeal. Within 20 calendar days of the later of either the issuance of the hearing examiner's report and order or service of a requested transcript of the underlying representation proceedings, the appealing party shall file a memorandum of appeal stating, with specificity, all exceptions that it takes to the hearing examiner's findings of fact, conclusions of law or order. The memorandum must contain citations to the specific record evidence or transcript portions which support each of the exceptions. The memorandum of appeal filed with the Board must be filed in accordance with the filing requirements of Chapter 10, section 7 and must simultaneously be served on all opposing parties.

3. Notice of Hearing. The hearing must be scheduled within a reasonable time from the filing of an appeal. The Board shall give at least 7 days’ notice of the time and place of such hearing to all parties in interest.

4. Rights of Parties to the Hearing. Any party to the appeal proceeding, as determined by the Board, has the right to be represented by counsel or by other representative for the purpose of offering oral argument requested by a party or written argument required by the Board. Stipulations may be offered with respect to any issue. The burden of proving material error on a given issue rests with the party appealing that issue. The Board shall allow oral argument and may require briefs to be submitted. Briefs must be filed in accordance with the filing requirements of Chapter 10, section 7 and must be simultaneously served on all other parties.

5. Ex Parte Communications Prohibited. No party or other person legally interested in the outcome of the appeal may communicate ex parte either directly or indirectly with any Board member or assigned Board attorney in connection with any issue of fact, law or procedure.

6. Powers of the Chair. The Chair shall have all the powers set forth in Chapter 12, section 13 of these Rules.

7. Decision and Order of the Board. The Board shall issue its decision and order, in writing, pursuant to and consistent with its powers under 26 M.R.S.A. §§ 968, 979-G, 1028 or 1288. A decision and order must include findings of fact and conclusions of law and must either affirm or modify the ruling or determination of the hearing examiner and specify the reasons for that action. A copy of the decision must be mailed or electronically transmitted to all parties in interest or their representatives of record.

( § 31 - § 40. Reserved. )

ELECTIONS OF BARGAINING AGENT AND DECERTIFICATION ELECTIONS

§ 41. Election Procedures Same

The election procedures established by this chapter apply to all representation elections conducted by the Board. Decertification election procedures and requirements are the same regardless of whether the bargaining agent facing challenge was certified by the Board or attained its status through voluntary recognition. Questions of representation raised by an election petition and a decertification petition for the same bargaining unit must be resolved in one election.

§ 42. Form of Elections

The executive director shall conduct all elections by secret ballot, at times and places and in such manner as the executive director may direct. When determining the method of voting and the selection of polling sites, the executive director shall consider the total number of eligible voters, the nature and geographic location of the work stations of eligible voters, the number of eligible voters at each work station, and the expressed desire of the parties, if any. The executive director may require the parties to attend a pre-election conference or participate in a telephone conference call to give relevant information upon which to base a decision regarding the date, time, place and manner of the election or to ascertain the identity of eligible voters. The determination of all disputed questions by the executive director regarding the date, time, place and manner of the election may be appealed to the Board within 5 working days of that ruling or determination, in accordance with section 54 of this Chapter.

§ 43. Voter Eligibility

The employees eligible to vote are those who were employed on the last pay date prior to the filing of the petition, who are employed on the date of the election, and who meet the applicable requirements defining covered employees set forth in 26 M.R.S.A. §§ 962(6), 979-A(6), 1022(11) or 1282(5). Employees not working on election day because of illness, vacation, leave of absence or other reason are eligible to vote if they have a reasonable expectation of continued employment.

§ 44. Voter List

At least 15 calendar days prior to the election or prior to the distribution of ballots for any election to be conducted by mail, or 7 calendar days following receipt of the Notice of Election, whichever is earlier, the employer shall actually deliver to each labor organization that is a party to the proceeding and to any individual petitioner a list of the names and addresses of the employees in the unit who are employed at the time of the submission of the list and who are otherwise eligible to vote under section 43 of this Chapter. A copy of this voter list must also be simultaneously filed with the Board. In case of mail balloting, the Board may accept pre-addressed, gummed labels from the employer in satisfaction of this requirement. In large units, if the employer is not able to provide pre-addressed labels, the Board may demand the list of eligible voters up to 20 calendar days prior to the date of mail ballot distribution.

§ 45. Notice of Election

At least 15 calendar days prior to the election, or prior to the distribution of ballots for any election to be conducted by mail, the executive director shall prepare and distribute a Notice of Election. The Notice of Election must specify the classifications or categories of employees in the bargaining unit for which the election is to be conducted, rules concerning eligibility to vote, the choices presented to the voter, and a sample ballot. For a mail-ballot election, the notice must indicate the date the ballots will be mailed or distributed to the prospective voters, the date and time the ballots will be counted and the latest date and time by which the completed ballots must be received at the offices of the Board in order to be counted. For an on-site election, the notice must specify the dates and polling places for the election and the hours the polls will be open. The notice may contain additional information and instructions as the executive director may consider appropriate.

§ 46. Posting of Notice of Election

Copies of the Notice of Election and the sample ballot must be sent to all employee organizations appearing on the ballot and to the employer. A copy of the Notice of Election and the sample ballot must be posted on the Board’s internet site at least 15 calendar days prior to the election. The employer shall post the Notice of Election and the sample ballot provided by the Board for at least 10 calendar days prior to the election or the distribution of mail ballots. Supplemental or amended Notices of Election and sample ballots must be posted by the employer upon receipt. The employer shall post the notices and sample ballots at all work locations where notices are customarily posted for the benefit of employees in the sought-after bargaining unit. This posting requirement may be modified by mutual written agreement of all parties filed with and approved by the executive director. The executive director may tailor the posting requirements in such a way as to provide adequate notice to employees. The employer shall take reasonable precautions to ensure that the notices and sample ballots are not altered, covered, defaced or removed before the completion of the election.

§ 47. Ballot Format

The executive director shall prepare and distribute official ballots. Ballots must contain the name of each representative and the choice of "no representative." The incumbent bargaining agent, if any, will automatically appear on the ballot as the first alternative. The order of appearance on the ballot of other alternatives is determined by the chronological order of filing or appearance in the records of the Board. In a runoff election, the order of appearance on the ballot is determined by the order of appearance on the ballot at the prior inconclusive election. The format of the official ballot is the same whether the election is conducted on site or by mail.

§ 48. Conduct of Election

The voting procedures used in a Board-conducted election must maintain the anonymity of the ballots to the greatest extent possible. The procedures established by this section must be followed unless the parties otherwise agree and obtain the consent of the executive director.

1. Mail Ballot Election Procedure. On the date scheduled for mailing ballots, the executive director shall mail to each eligible voter an official ballot, a "Secret Ballot Envelope," a "Mail Ballot Envelope" and voting instructions. The instructions must tell the voter to return the ballot to the Board in the two envelopes as follows: the voted ballot must be placed in the smaller envelope marked "Secret Ballot Envelope" and having any additional instructions considered necessary by the executive director. The second and larger envelope is the "Mail Envelope" in which the "Secret Ballot Envelope" is placed and mailed or delivered to the Board. The "Mail Envelope" must be pre-addressed and postage paid and must have a space on it that identifies the voter by name and employer and contains any additional identifying marks the executive director considers necessary. Voter failure to comply with the identity requirements on the "Mail Envelope" or destruction of any identifying mark on it is sufficient cause to disqualify that ballot from being counted. At the time designated for counting the ballots, each "Mail Envelope" must be authenticated by comparison with the list of eligible voters. "Secret Ballot Envelopes" must then be removed from the "Mail Envelopes" and deposited in a suitable container along with other "Secret Ballot Envelopes" to preserve the anonymity of the ballots. The "Secret Ballot Envelopes" must then be opened, the ballots removed and counted at random, and the results recorded and witnessed as provided in subsection 3. All challenges to mail ballots which are based on or concern the identity of the voter or voter eligibility, and which are made pursuant to section 50 of this Chapter, must be raised prior to the removal of the "Secret Ballot Envelope" from the "Mail Envelope."

2. On-Site Election Procedure. The executive director shall designate the boundaries of the polling areas in the Notice of Election but may modify the boundaries of the polling areas at the election site. No electioneering of any kind is allowed within such area or areas. Any violation of this rule by any party or its representative or agent may be grounds for setting aside an election outcome favorable to the offending party. If it is necessary to conduct the election at more than one location, the ballots from each election location must be sequestered by the executive director until counted. These ballots must be sealed in an envelope or other appropriate container and delivered to the location where the ballots will be counted. The ballot count must occur at the time and place previously determined and announced by the executive director. If the election is conducted at only one election site, the ballots may be counted and the results certified promptly after the polls are closed.

3. Election Observers. Each party to the election may be represented by one observer at each polling place. A party so represented may designate that observer, and in the case of multiple sites, one of its observers, as its agent or representative for the purpose of observing the count of the ballots and for certifying, on a form to be supplied by the Board, the accuracy of that count. In an election conducted by mail balloting, the parties may each designate an election observer to be present at the counting of the mail ballots cast in the election. Except in the case of mail balloting, Employer observers must be persons without supervisory authority over the employees who are voting, and must not be eligible voters.

4. Destruction of Ballots. Ballots may be destroyed 6 months after the election.

§ 49. Elections in School Units During Summer

If an election in a school bargaining unit composed primarily of persons employed during the school year only is scheduled to occur during the summer break, the election may be delayed until the reopening of the school at the discretion of the executive director.

§ 50. Challenged Ballots

Any prospective voter may be challenged for cause. A challenged voter must be permitted to vote in the following manner: The ballot must be sealed by the challenged voter in an envelope marked only "Secret Ballot." That "Secret Ballot Envelope" must be sealed by the challenged voter in a separate "Challenged Ballot Envelope" on which the voter is identified and the cause of challenge disclosed. The employee shall then report to the Board election agent conducting the election, and must then be allowed to put the "Challenged Ballot Envelope" into the container with the regularly cast ballots. In a mail ballot election, the Board agent shall write on the outer mail envelope the cause of the challenge and set the challenged ballot aside. If the challenged ballots are insufficient in number to affect the result of the election, no determination with respect to them may be made. If the challenged ballots are sufficient in number to affect the result of the election, the executive director shall resolve the challenge. If the executive director concludes that a hearing is necessary to resolve the challenge, the hearing procedures provided in sections 21 to 30 apply.

§ 51. Void Ballots

Ballots that have been mutilated, spoiled, marked with more than one choice or which do not clearly reveal the intent of the voter, as well as mail ballots that are returned without the voter’s signature or other required identifying mark on the mail envelope may be determined to be "void ballots" by the executive director. A void ballot may not be counted as favoring any alternative proposition appearing on the ballot. The executive director shall liberally view ballots in favor of validity.

§ 52. Appeal on Challenged or Voided Ballots

The decision of the executive director concerning challenged or void ballots may be appealed to the Board within 5 working days of the announcement of the ruling or determination. The appeals procedure before the Board shall in all other respects conform to section 30 of this Chapter. The Board's decision on review of challenged or void ballots may affirm, vacate, hold in abeyance or modify any previous certification issued as a result of the election.

§ 53. Report of Election and Certification of Representative

Upon the conclusion of any election, the executive director shall prepare a report of the result of the election and serve this report upon the parties. When an organization receives the majority of valid votes cast, the executive director shall certify it as the bargaining agent and include this certification with the report of election. If in a decertification election the incumbent bargaining agent obtains a majority of the valid votes cast, the executive director shall recertify it as the bargaining agent, whereupon the statutory one-year bar referred to in section 6 of this Chapter applies.

§ 54. Objections to Conduct of Board Agent

Within 5 working days after the election results are reported by the executive director, any party who intends to object to any action of the executive director in conducting an election shall file written objection with the Board and shall serve a copy of the objection upon all other parties to the election. The objection must contain a plain statement of the grounds of the objection. The Board shall hear the matter in accordance with section 30 of this Chapter, make its determination with respect to the objections and shall then affirm, vacate, hold in abeyance or modify the certification of the Board's designee, or of the executive director, or take such other action as it may deem appropriate. Any defect in making an objection may warrant dismissal by the Board.

§ 55. Objection to Conduct of Party

Any objection to the conduct of a party to an election must be by a prohibited practice complaint filed in accordance with 26 M.R.S.A. §§ 968, 979-H, 1029 or 1289, as appropriate, and in conformity with Chapter 12 of these Rules. Activities of a party to an election which materially compromise the secret ballot process, effectively disenfranchise eligible voters or otherwise interfere with a free and fair election are grounds for such an objection.

§ 56. Requirement of Majority

In all elections a majority of the valid votes cast determine the outcome of the election. In initial or runoff elections where the ballot affords only the alternatives of one bargaining representative and "no representative," a tie in the tally of votes cast results in no representative.

§ 57. Runoff Election

The executive director shall conduct a runoff election when an election in which the ballot provided for three or more choices ultimately results in no choice receiving a majority of the valid ballots cast. A runoff election may not be held until any objections filed have been resolved by the Board.

1. Eligibility of Voters in Runoff Election. Only employees who were eligible to vote in the initial election and who remain in the bargaining unit on the date of the runoff election are eligible to vote in the runoff election.

2. Ballot Format in Runoff Election. The ballot in the runoff election must provide for selection between the choices receiving the largest and second largest numbers of valid votes in the initial election. The order of appearance of the choices on the rerun ballot are based on the order of appearance in the initial election.

§ 58. Cancelled Elections; Reruns

If a scheduled election is cancelled at the request of the petitioner, the petitioner is barred for a period of one year from participating in an election in that or a similar unit of those employees. When an election is rescheduled or rerun due to a party's prohibited practices, that party may be ordered to pay the costs occasioned by the rescheduled or rerun election.

( § 59 - § 60. Reserved .)

MERGER OF BARGAINING UNITS

§ 61. Unit merger

Bargaining units subject to the Municipal Public Employees Labor Relations Law may be merged in accordance with 26 M.R.S.A. §966(4) and these rules. If the same certified or currently recognized bargaining agent represents multiple bargaining units with the same public employer, either the employer or the bargaining agent may file a request to merge those bargaining units with the executive director.

1. When Parties Agree on Merger. When the certified or recognized bargaining agent and the public employer agree to merge two or more bargaining units into one, they shall sign an agreement to that effect and submit it to the Board. The standard Agreement on Appropriate Unit Form may be used for this purpose, indicating that the purpose of the agreement is to merge the units. The Board will prepare a Notice to Employees describing the agreement to merge units and giving the affected employees a reasonable period in which to object. If an objection is received by the Board from an employee in any of the affected units, a merger election will be conducted in accordance with subsection 2.

2. Unit Merger Election Requested. When a petition for a unit merger election is filed or when an employee objects to a merger agreed upon by the parties, the executive director shall order a unit merger election. The election will determine whether a majority of the employees voting in each bargaining unit wish to be within the expanded unit. The only question on the ballot in a unit merger election is approval or disapproval of the proposed merger. The executive director shall certify the bargaining agent for an expanded unit consisting of any bargaining units in which a majority of the employees voting approved the merger. The election procedures must otherwise conform with sections 41 to 58.

3. Decertification Elections Take Precedence. If a petition has been filed by a competing organization for decertification of the current bargaining agent for any of the bargaining units subject to the merger, then the decertification petition takes precedence over a petition to merge bargaining units.

4. Frequency. Unsuccessful petitioners may not renew their merger requests within one year of the date of the filing of an unsuccessful petition.

5. Supervisors and Teachers. A bargaining unit composed of a majority of supervisors may not merge under this rule with any other unit nor may a bargaining unit of teachers merge with a bargaining unit of nonprofessional employees. In such cases, a unit determination petition is necessary.

MERGER OF BARGAINING AGENTS

§ 62. Bargaining agent merger

Bargaining units subject to the Municipal Public Employees Labor Relations Law may be merged in accordance with 26 M.R.S.A. §967(3) and these rules. Two or more bargaining agents who are certified by the executive director and who are members or affiliates of the same public employee organization may petition to merge.

1. Bargaining agent merger requested. When a petition for a bargaining agent merger election is filed, the executive director shall order a bargaining agent merger election. The election will determine whether a majority of the employees represented by the petitioning bargaining agents are in favor of merging the bargaining agents. The only question on the ballot in a bargaining unit merger election is the approval or disapproval of the proposed merger of the bargaining agents. On an affirmative vote of the majority of the employees represented by each petitioning bargaining agent, the executive director shall certify the merged bargaining agent. The election procedures must otherwise conform with sections 41 to 58.

2. Contract. After a merger is ordered, the parties to a contract in which one party to that contract is one of the merged bargaining agents shall honor the terms of the contract unless the public employer and the merged bargaining agent agree to different terms.

( § 63 - § 70. Reserved .)

UPDATING RECORDS AT BOARD OFFICES

§ 71. Notification of Contract Expiration

When a party notifies the executive director of the pending expiration of a contract as required by the applicable statute, that notice will be used as evidence of continued activity of the unit for purposes of section 82 of this Chapter.

§ 72. Copies of Collective Bargaining Agreements

If a valid collective bargaining agreement is supplied to the Board, it will be used to update the Board’s records to reflect changes in the name of the previously certified or recognized bargaining agent, in the composition of the bargaining unit, and as evidence of continued activity of the unit for the purposes of section 82 of this Chapter. No notice to employees of the changes will be posted. As space limitations require, the Board may elect to retain only those portions of the collective bargaining agreement it considers necessary.

( § 73 - § 80. Reserved .)

REVOCATION OF BARGAINING AGENT CERTIFICATION

§ 81. Disclaimer of Interest

A certified or recognized bargaining agent may disclaim interest in representing a bargaining unit in accordance with this rule.

1. Contents of Request. A certified or recognized bargaining agent wishing to disclaim interest in representing a bargaining unit must file a written request with the executive director. The request must include an assertion by the bargaining agent that no collective bargaining agreement covering bargaining unit members is in effect and that the bargaining agent has no outstanding financial obligations related to election costs, the grievance process, including arbitration, or impasse resolution proceedings.

2. Posting of Disclaimer Notice. If there is no collective bargaining agreement in effect and the bargaining agent asserts that there are no outstanding financial obligations, the executive director will prepare a Notice of Disclaimer for posting by the employer or for distribution directly to the affected employees. If there is a collective bargaining agreement in effect, the Notice of Disclaimer will not be distributed until the contract has expired. The Board may require the disclaiming union to provide the Board with the mailing addresses of all unit members to enable the Board to distribute notices of the petition for disclaimer.

3. Objection to Disclaimer. The petition to disclaim must be denied upon the objection of any interested party. An objection must be received within 15 calendar days of the issuance of the Notice.

4. Consideration of Objection. After receipt of an objection to a petition to disclaim, the executive director shall consider the nature of the objection and take appropriate action. This action may include formal or informal mechanisms to resolve the dispute, granting or denying the petition to disclaim or scheduling a decertification election. The decision of the executive director may be appealed to the Board in accordance with section 30 of this Chapter.

5. Effect of Disclaimer. Upon approval of a request to disclaim interest, the executive director shall revoke certification or recognition. The petitioner is not allowed to file, or intervene in, a petition to represent employees in the disclaimed bargaining unit for a one-year period following the date of the order revoking certification or recognition.

§ 82. Revocation of Certification in Inactive Unit

The executive director may revoke the certification of a bargaining agent that has been inactive for 5 or more years if there is no evidence of any activity in the Board’s records and no evidence of activity is received by the Board following the notice requirements of this rule.

1. Inactive Bargaining Unit. If the Board’s records indicate that a certified or recognized bargaining agent has been inactive for a period of five or more years, the Board may solicit information from the parties on the continued existence of a collective bargaining relationship in that bargaining unit. The Board may request a copy of any document demonstrating that a collective bargaining relationship exists or existed during the previous 5 years or that the bargaining agent submitted a written request to meet and negotiate during that same time period. If any evidence is presented that indicates that the bargaining agent has been active during the previous 5 years, the Board may not revoke certification under this section. Evidence should be liberally viewed in favor of continued certification.

2. Posting of Notice. If the Board is not able to find any evidence that the bargaining agent has been active in the past 5 years by contacting the employer, the bargaining agent of record or any likely successors, the Board must issue a Notice to Employees concerning the potential revocation of bargaining agent certification before any action may be taken. The notice must state the name of the certified or recognized bargaining agent, the nature and date of the most recent collective bargaining activity known to the Board and the time period during which objections to the Board revocation of certification must be filed. This posting period must be at least 15 calendar days and, for school units, may not include school vacation periods.

3. Objections. Any party objecting to the Board revocation of certification must contact the Board within the time period specified in the notice and provide evidence in support of its position within a reasonable time thereafter. The collective bargaining activity serving as the basis of the objection must have occurred prior to the date of the Notice to Employees issued by the Board.

4. Notice to Other Parties. Any Notice of Revocation of Certification distributed will also be sent to any person or organization that has previously notified the Board of its desire to receive such notices.

History

• STATUTORY AUTHORITY: 26 M.R.S. §968 sub-§3
• EFFECTIVE DATE: January 1, 2001 – filing 2000-525
• NON-SUBSTANTIVE CORRECTION: February 20, 2001 - adjusted title of § 9
• AMENDED: April 1, 2020 – filing 2020-035
• AMENDED: July 1, 2023 – filing 2023-089
• AMENDED: July 1, 2025 – filing 2025-128 [Note: Effective date of amendment was corrected on 7/1/2025, pursuant to § 1 of the rule.]
• AMENDED: APAO WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK: July 17, 2025

Chapter 12 Prohibited Practice Complaints; Interpretive Rulings

Code Me. R. 12-180 Ch. 12 Prohibited Practice Complaints; Interpretive Rulings {#sec-12-180-ch.-12 omnilex-key=us-me-regs-official--dept-labor--12-180 Ch. 12}

SUMMARY: This chapter contains rules on filing prohibited practice complaints, responding to a complaint, the prehearing conference, the adjudicatory hearing and the issuance of decisions and orders by the Board. This chapter also contains rules on requests for interpretive rulings from the Board.

PROHIBITED PRACTICE COMPLAINTS

§ 1. Nature of a Prohibited Practice Complaint

The filing of a prohibited practice complaint with the Board is a request that the Board adjudicate whether the named party has violated the applicable collective bargaining law as charged in the complaint, and, if so, that the Board provide an appropriate remedy.

§ 2. Who May File a Complaint

Any employer, employee, employee organization or bargaining agent that believes that any employer, employee, employee organization or bargaining agent has engaged in or is engaging in a prohibited act or practice as defined in 26 M.R.S.A. §§ 964, 979-C, 1027 or 1284 may file a complaint with the Board.

§ 3. Time Limit for Filing a Complaint

No complaint may be filed that is based upon any alleged prohibited practice occurring more than 6 months prior to the filing of the complaint with the Board. The complaint must be served on the party charged prior to being filed with the Board.

§ 4. Complaint is a Formal Request

The complaint is a formal request for relief and, as such, the complaining party must have grounds to support its complaint. The complaint must be submitted in writing in accordance with the filing requirements of Chapter 10, section 7 and must contain a declaration by the person signing, under penalty of law, that its contents are true and correct to the best of the declarant's information and belief.

§ 5. Contents of Complaint

The complaint must contain, insofar as is known, the information specified in this section. This information may be furnished on a form provided by the Board. The complaint must contain the following information:

1. Name of Complainant. The full name, address and affiliation, if any, of the complaining party, and the title of any representative filing a complaint.

2. Name of Respondent. The full name and address of the employer, employees or employee organizations against whom the complaint is made.

3. Copy of Collective Bargaining Agreement. A copy of any existing bargaining contract or agreement relating to the unit involved in the prohibited practice complaint.

4. Concise Statement of Facts. A clear and concise statement of the facts constituting the complaint, including the date and place of occurrence of each particular act alleged, names of persons who allegedly participated in or witnessed the act and the sections, including subsections, of the labor relations statutes alleged to have been violated. The complaint must consist of separate numbered paragraphs with each paragraph setting out a separate factual allegation.

5. Relief Sought. A statement of the relief the complaining party seeks. This claim for relief does not limit the powers of the Board.

6. Other Relevant Information. A brief statement of any other information relative to the charge.

The complaint may also include, but is not required to include, attached documentary evidence in support of the factual allegations made in the complaint. Such attachments will generally be considered if they aid in understanding the allegations in the complaint, but they may not be used as a substitute for the specific allegations of fact required in the complaint. In the event that the complainant wishes to include such attachments in the record as documentary evidence, they must be introduced in the same manner as any other documentary evidence at the prehearing conference or hearing, subject to objection by an opposing party and an admissibility ruling by the prehearing officer or Chair.

§ 6. Delivery of Complaint to Other Party; Proof of Service

A prohibited practice complaint may not be filed with the Board until the complaining party has served a copy of the complaint upon the party against whom the charge is made. As provided in Chapter 10, §8, service will be considered complete on the date that service was provided to the other party by email, so long as service by mail, hand delivery or delivery via a delivery service occurred on the same calendar day.

The executive director may at any time require the complainant to file proof of the date that the complaint was served on the respondent if proof of service is not filed with the complaint. Failure to provide the proof of service as required by the executive director is grounds for dismissal of the complaint. Proof of service may be in the form of either a certified mail receipt signed by the recipient addressee or an agent of the addressee, a signed and dated acknowledgment of receipt by hand delivery, a dated confirmation of delivery from the Post Office or other delivery service, a dated statement of refusal of service or a copy of the sent email that includes the date and the email address to which it was sent. These requirements also apply to amended complaints.

§ 7. Docket Number

The Board shall notify the parties of the receipt of the complaint and the docket number assigned. The parties must include the docket number on all documents and subsequent correspondence concerning the complaint.

§ 8. Review, Amendment and Action on Complaint

After the 20-day period in which the respondent’s answer is due pursuant to section 9, the executive director shall review the complaint for sufficiency and proceed in accordance with this rule.

1. Action Following Review for Sufficiency. Upon reviewing the complaint for sufficiency, the executive director shall take appropriate action, which may include the issuance of a notice of a prehearing conference or an evidentiary hearing, summary dismissal of the complaint in whole or in part, entry of an uncontested order or issuance of a recommended order by the executive director. The executive director may also issue a notice of errors and insufficiencies to the complainant and allow amendment of the complaint.

2. Permitted Amendments. A party may amend its complaint once as a matter of course at any time before a responsive pleading is served and once after receiving a notice of errors and insufficiencies from the executive director. Amendments made in response to a notice of errors and insufficiencies from the executive director must be filed within 15 calendar days of service of the notice. Amendments must be delivered to all other parties in accordance with section 6 of this Chapter. When the claim asserted in an amended complaint arises out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the permitted amendment relates back to the date of the original pleading. A complaint may also be amended at the prehearing conference, with the consent of the other party, in accordance with §10(10), or at the hearing in accordance with §20.

3. Dismissal; Appeal. If, after the opportunity for amendment has expired, the allegations in the complaint do not constitute a prima facie violation of the applicable collective bargaining law, the complaint may be summarily dismissed in whole or in part by the executive director who shall notify the parties of the determination. A party whose complaint is summarily dismissed in whole or in part may appeal to the Board by filing a motion requesting review of the dismissal within 15 calendar days after the issuance of the dismissal. The motion must clearly and concisely set forth the points of fact and law claimed to be sufficient to establish a prima facie violation of the applicable collective bargaining law. Upon the filing of a timely motion for review, the Board shall examine the complaint as it existed when summarily dismissed in light of the assertions contained in the motion. If upon such examination the Board finds the complaint insufficient, it shall affirm the summary dismissal of the charge and shall notify the parties in writing of the determination. If the Board finds the complaint to be sufficient, it shall reinstate the complaint and shall so notify the parties.

§ 9. Response to Complaint

The party against whom a complaint has been filed shall file its answer to a complaint and any motion to dismiss within 20 calendar days after the filing of the original complaint, or 10 calendar days after the filing of the amended complaint, whichever is later. The respondent shall simultaneously serve a copy of the answer upon the complaining party and certify that service was made in accordance with Chapter 10, section 8 of these Rules.

1. Contents of Answer. The answer must include a specific admission, denial or explanation of each allegation in the complaint and must fairly meet the substance of the allegations denied. The answer must be signed by the respondent. Any material allegation not denied in the answer is deemed admitted. Any request for deferral of issues raised to the parties' grievance process, including arbitration, must be made in the answer. A joint statement of any matters of agreement reached by the parties must be attached to the answer.

2. Counter Complaint. If the answer contains a counter complaint, that counter complaint will be reviewed in accordance with section 7 and, if it alleges a prima facie violation of the applicable collective bargaining law , an answer to that counter complaint will be required. A counter complaint is treated like an initial complaint, in all respects.

3. Failure to Answer. Failure to file a timely answer constitutes an admission of the properly pleaded material facts alleged in the complaint. Failure to file an answer is grounds for the Board to render a default order against the respondent unless the Board finds that the respondent's failure to answer is the result of excusable neglect. The default is with prejudice, unless the order provides otherwise.

§ 10. Prehearing Conference; Notice and Procedure

The executive director may require attendance at a prehearing conference by the parties or their representatives. The purpose of a prehearing conference is to prepare for an orderly hearing, to narrow the issues to be resolved at hearing and to explore opportunities for settlement.

1. Notice. The executive director shall serve notice of the prehearing conference on the parties by mail. The notice must include the time, date and place of the conference or hearing.

2. Required Information. The notice of prehearing conference may require the parties to provide either at the prehearing conference or up to one week prior to the date of the prehearing conference, the following information:

A. A written statement of relevant issues of fact and law;

B. An estimate of the time required for hearing;

C. Proposed stipulations and admissions;

D. Exhibits and a list of the names and addresses of witnesses intended to be offered at hearing;

E. A concise description of the settlement posture of the case without reference to the specific figures involved in prior discussions or negotiations;

F. Oral argument on any request for deferral; or

G. Any other information which in the opinion of the prehearing officer may aid in resolution or narrowing of the disputed issues remaining for hearing.

3. Documentary Evidence. The prehearing officer shall mark and admit all documentary evidence on which the parties agree. Disputed documentary evidence must be marked for identification and the basis of any objection noted by the prehearing officer. The Board shall rule on the admissibility of documentary evidence upon motion by the offering party at the evidentiary hearing. Documentary evidence offered under this rule must be submitted in 5 copies unless the executive director or prehearing officer permits the parties to submit evidence electronically. Only documentary evidence which was not available to the party offering it at the time of the prehearing conference or which was not known to exist at that time may be considered for admission by the Board at the time of hearing.

4. Witness List. The prehearing officer shall make a witness list. Any change in the list of prospective witnesses must be communicated by each party to the others and to the Board at least 48 hours before the evidentiary hearing.

5. Collective Bargaining Agreement. In any case where the complaint refers to a collective bargaining agreement, that agreement must be treated as an exhibit admitted in evidence unless objection is seasonably noted.

6. Deferral to Arbitration. The executive director or prehearing officer shall cause a record to be made of argument concerning any request for deferral to arbitration and shall grant or deny the deferral request. Oral argument may be allowed, in the discretion of the executive director or prehearing officer, if a party requests it. If any party requests Board review of the deferral decision the executive director or prehearing officer must refer the record to the Board. The Board may confer telephonically or by other remote means to determine whether to grant or deny the motion to defer.

7. Dispositive Legal Issue. If it appears to the prehearing officer that the determination of a legal issue will resolve the dispute and render a fact hearing unnecessary, the prehearing officer may order a severance and fix a briefing schedule to enable the Board to first determine the legal issue. If the date for a fact hearing has already been set by the executive director, the prehearing officer may order that the hearing be rescheduled.

8. Settlement. The prehearing officer shall explore the settlement negotiations conducted by the parties and shall encourage a fair disposition of the case by settlement. The representatives of the parties shall make every reasonable effort to attend the prehearing conference with full authorization from their clients with respect to settlement.

9. Failure to Participate is Grounds for Dismissal or Default. Failure of a complainant to attend a prehearing conference, to satisfy the requirements of the prehearing notice or to file a brief required by the prehearing officer may be grounds for dismissal of the complaint. Failure of a respondent to attend a prehearing conference, to satisfy the requirements of the prehearing notice or to file a brief required by the prehearing officer may be grounds for the entry of a default order against the respondent. The dismissal or default is with prejudice, unless otherwise stated in the order of dismissal or default, and is final unless the Board finds that the failure to participate in the conference or hearing or to satisfy the requirements of the prehearing notice was the result of excusable neglect.

10. Prehearing Memorandum and Order. At the conclusion of the prehearing conference the prehearing officer shall issue a prehearing memorandum and order in which the fact issues for hearing are identified and amendments to pleadings agreed upon by the parties are recorded. The prehearing officer may order the parties to file legal memoranda or hearing briefs in advance of the hearing. Submission of such briefs is subject to the requirements of section 18 of this Chapter. The prehearing memorandum and order must indicate if additional copies of the complaint and the applicable collective bargaining agreement must be submitted prior to the hearing.

§ 11. Right to Intervene

In the discretion of the Board, any other person or organization may be allowed to present testimony at the hearing or, upon motion, to intervene and participate as a full or limited party to the proceeding.

§ 12. Notice of Hearing

When an evidentiary hearing is scheduled, notice of the hearing must be served on the parties by mail. The Notice of Hearing and any amendments to it must be posted on the Board’s internet site.

§ 13. Conduct of Hearing; Powers of Chair

The Chair has the power to administer oaths and to require by subpoena the attendance and testimony of witnesses, the presentation of books, records and other evidence relative or pertinent to the issues presented to the Board for determination. Any party may file a written application for subpoenas with the Board in accordance with section 17 of this Chapter. A person served with a subpoena issued by the Board may not refuse or neglect to appear or to testify or to produce books and papers relevant to the investigation, inquiry or hearing as commanded in that subpoena with the Board. Upon failure of any party to comply with a subpoena, the Board may, absent constitutional, statutory or other privilege, disregard all related evidence offered by that party.

§ 14. Nature of Hearing

The purpose of the hearing is to develop a full and complete factual record. The burden of proof rests with the complaining party. All testimony offered must be taken under oath or affirmation. A hearing transcript will be prepared for the Board and made available to the parties pursuant to Chapter 10, section 9.

§ 15. Rules Regarding Evidence

The strict rules of evidence observed by courts do not apply to Board hearings. The following principles regarding evidence apply:

1. Evidence. The Board shall admit evidence if it is the kind upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Irrelevant or unduly repetitive evidence may be excluded.

2. Rules of Privilege. The Board shall observe the rules of privilege recognized by law.

3. Written Evidence; Exception. No sworn written evidence may be admitted unless the author is available for cross-examination or subject to subpoena, except for good cause shown.

4. Evidence Not Offered at Prehearing Conference. If evidence is offered that was not offered at the prehearing conference, it is the responsibility of the offering party to establish why the proposed evidence was not available at the time of the prehearing conference. This limitation on the introduction of new evidence before the Board does not apply to evidence used for impeachment or rebuttal purposes. Other documentary evidence may be admitted by the Board, at its discretion, for the purpose of avoiding manifest injustice.

§ 16. Rights of Parties

Any party to the hearing has the right to be represented by counsel or by other representative, to examine and cross-examine witnesses and to offer documentary and other evidence. Stipulations may be offered with respect to any issue. Parties may request the issuance of subpoenas. The Board shall allow oral argument upon request and, after consultation with the parties, may require briefs to be submitted. Any brief permitted to be filed must be filed pursuant to the filing requirements of Chapter 10, section 7. A copy of any brief filed with the Board must be simultaneously served on all parties to the matter. A party’s representative may testify at the hearing but the Board may require the testimony to be in question and answer form.

§ 17. Witnesses and Subpoenas

A party to a proceeding before the Board or the executive director may request the attendance of witnesses voluntarily or by subpoena. If witnesses or documents are sought by subpoena, the requesting party must first make a written request of the Board or presiding official for the issuance of the subpoena. When the subpoena is issued, it is the responsibility of the requesting party to serve the subpoena or cause it to be served on the named individual. When a witness is subpoenaed, the witness fee and transportation allowance established by 16 M.R.S.A. §251 must be provided at the time the subpoena is served. If a party subpoenas a witness and then decides not to call that witness, the requesting party must give notice of its intent not to call that witness to the other parties to the proceeding, and to the Board or the executive director, at least 48 hours prior to the time the witness was scheduled to appear. A subpoena for documents will ordinarily require the production of the documents at the prehearing conference.

§ 18. Submission of Briefs

The Board may request any party to submit, at any time, a written statement of position, fact or law regarding any matter relevant to a pending prohibited practice complaint. Briefs requested or permitted by the presiding officer of an evidentiary hearing must be filed with the Board in accordance with the filing requirements of Chapter 10, section 7 on or before the date specified, and a copy must be simultaneously served on the other party or parties. Failure of a complainant to file a brief required by the presiding officer of an evidentiary hearing may be grounds for dismissal of the complaint. The failure of a respondent to file a brief required by the presiding officer of an evidentiary hearing may be grounds for entry of a default order against the respondent. An order dismissing a complaint or entering a default order resulting from a party's failure to file a brief must be with prejudice unless provided otherwise in the order.

§ 19. Ex Parte Communications Prohibited

No party or other person legally interested in the outcome of a hearing may communicate ex parte either directly or indirectly with any Board member or assigned Board attorney in connection with any issue of fact, law or procedure related to a pending prohibited practice complaint.

§ 20. Amendments to Conform

If evidence is objected to at the hearing on the ground that it is not within the issues set out in the pleadings, the Board may allow the pleadings to be amended and shall do so freely when it will aid in the presentation of the merits of the action and the objecting party fails to satisfy the Board that the admission of that evidence would prejudice it in maintaining its action or defense upon the merits. The Board may grant a continuance to enable the objecting party to meet that evidence. Upon the request of a party at the conclusion of the hearing, the complaint or response may be specifically amended to conform to the evidence.

§ 21. Withdrawal

A complaint may be withdrawn by the complaining party with the approval of the Board. If the withdrawal is without the approval of the other party, the withdrawal must be with prejudice. No proposed withdrawal based upon the settlement of a complaint within the Board's jurisdiction which contains an allegation of unlawful discrimination against any individual may be approved by the Board without notice to the discriminatee. Unlawful discrimination within the meaning of this rule includes discrimination in hire, or any term or condition of employment, on the basis of lawful organizational or collective bargaining activity or affiliation. Unlawful discrimination also includes discrimination based on the signing or filing of any affidavit, petition or complaint, or the giving of any information or testimony under the labor relations statutes. The notice by the Board must state the terms of the proposed settlement, apprise the discriminatee of the opportunity to refrain from joining in the settlement, extend the opportunity to assume party status concerning charges of discrimination addressed by the settlement in which the discriminatee does not join and set a reasonable deadline for the filing of notice of intention regarding the proposed settlement. A comparable notice provided by the complainant and signed by the individual discriminatee may be approved by the Board when appropriate.

§ 22. Stay of Election

The holding of an election and the issuance of a certification based upon the results of a previously conducted election may be stayed or set aside by the Board, pending the decision of a prohibited practice complaint relating to the unit petitioned for or relating to alleged irregularities in the selection or decertification of a bargaining agent.

§ 23. Shortening Time Limits or Staying Further Processing

The Board may order accelerated action on a claim without regard to the time limits otherwise provided in these rules, or may order a stay of further processing of a claim on such terms as are appropriate.

§ 24. Misconduct at a Hearing; Refusal of Witness to Answer Questions

Misconduct at any hearing before the Board or the executive director is grounds for summary exclusion from the hearing by the presiding officer. If the misconduct is of an aggravated nature and is engaged in by a representative of a party, it may be cause for suspension by the Board, after due notice and hearing, from further practice before the Board. Absent constitutional, statutory or other privilege, the refusal of a witness to answer any question may be grounds for striking all testimony given by that witness on related matters.

§ 25. Stale Proceedings

The Board, on its own motion and in the absence of a showing of good cause to the contrary, may dismiss a proceeding for want of prosecution at any time more than one year after the last docket entry showing any action taken by the complainant or petitioner other than a motion for continuance.

§ 26. Decision and Order of the Board

The Board shall issue its decision and order, in writing, pursuant to and consistent with its powers under 26 M.R.S.A. §§ 968, 979-H, 1029 or 1289.

(§ 27 - § 40. Reserved .)

INTERPRETIVE RULINGS

§ 41. Interpretive Rulings

An interpretive ruling is a means for determining specific questions as to the prospective rights, obligations or liabilities of a party when controversy or doubt has arisen regarding the applicability of a specific statute, Board order or rule. A petition for an interpretive ruling may not be used to resolve factual disputes between adversaries and may not be used as a substitute for other remedies provided by the collective bargaining laws.

1. Petition for Interpretive Ruling. A petition for an interpretive ruling may be filed with the Board by any person, employee organization or public employer. A petition for an interpretive ruling must be filed in accordance with the filing requirements of Chapter 10, section 7. In order to show the existence of a controversy or doubt, the petitioning party must describe the potential effect upon that party's interests in its petition. The petition must contain the following:

A. The name and address of the petitioner;

B. The statute, Board order or Board rule on which the interpretive ruling is sought;

C. A clear and concise statement of the facts and circumstances and the contemplated action of the petitioner which arguably might elicit the filing of a prohibited act complaint or to which the specified statute, Board order or Board rules and procedures might be applicable; and

D. A supporting memorandum of law.

If negotiations are in progress and a controversy has arisen concerning the required scope of bargaining, the petition must include a brief description of the positions taken by the parties and copies of all proposals and counterproposals submitted by the parties relating to the dispute.

2. Service of Petition on Other Party. Where any other person, employee organization or public employer is named in the petition, the petitioner shall simultaneously serve a copy of the petition on the named person, employee organization or public employer and provide a certificate of service to the Board.

3. Posting of Petition. Upon receipt of a petition for an interpretive ruling, the Board shall post notice of the petition on its internet site.

4. Hearing Permitted. The Board, at its discretion, may grant a hearing before the Board or a designated agent.

5. Pending Actions Proceed. The filing of a petition for an interpretive ruling does not stay the progress of any proceeding pending before the Board and does not relieve any party of any obligation set forth in the Maine Revised Statutes, any Board order or these rules and procedures.

6. Written Memoranda. Any person, employee organization or public employer may file with the Board a written memorandum addressed to the issues raised by the petition within 20 calendar days after the date the notice of the petition is posted on the Board's internet site. The memorandum must be submitted in accordance with the filing requirements of Chapter 10, section 7 and must include the caption of the case as posted by the Board. The memorandum must clearly and concisely set forth the position taken by that person, employee organization or public employer and the facts and arguments relied upon in support of that position.

7. Ruling Not Binding on Board. An interpretive ruling is not binding upon the Board, provided that, in any subsequent Board proceeding, any person's justifiable reliance upon the ruling must be considered in mitigation of any penalty sought to be assessed.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. §968 sub-§3
• EFFECTIVE DATE: January 1, 2001 – filing 2000-526
• NON-SUBSTANTIVE CORRECTION: February 20, 2001 - adjusted title of § 8
• AMENDED: April 1, 2020 – 2020-036
• AMENDED: July 1, 2023 – 2023-090
• AMENDED: APAO WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK: July 17, 2025

Chapter 13 Resolution of Contract Negotiations Disputes

Code Me. R. 12-180 Ch. 13 Resolution of Contract Negotiation Disputes {#sec-12-180-ch.-13 omnilex-key=us-me-regs-official--dept-labor--12-180 Ch. 13}

SUMMARY: This chapter contains rules on requesting mediation, fact-finding, and arbitration and rules governing certain aspects of those proceedings.

MEDIATION

§ 1. Who May Request Mediation and When

Traditional mediation services may be requested by either the bargaining agent or the public employer at any time during the bargaining process prior to interest arbitration.

§ 2. Requests for Mediation Services

A party requesting mediation assistance in negotiations for an initial or successor agreement shall provide the information specified in this rule to the Board. This information may be supplied on a form available from the Board.

1. Name and Address of Requesting Party. The name of the person making the request and the name, address and telephone number of the requesting party’s organization.

2. Name and Address of Other Party. The name of the contact person for the other party and the name, address and telephone number of the other party.

3. Name of Bargaining Unit. The name or a brief description of the bargaining unit involved.

4. List of Issues. A list of issues to be discussed in mediation.

5. Type of Agreement or Date of Reopener. Whether an initial or successor agreement or reopener is involved and the date of termination of the latest contract or of the reopener, if applicable.

§ 3. Preventive Mediation

Preventive mediation is a non-confrontational, collaborative technique for negotiating a collective bargaining agreement in which the mediator is on the scene before the negotiations begin. If necessary, the mediator trains the parties in interest-based bargaining so that the parties can work together to identify their individual and mutual interests and engage in joint problem solving to find ways to best meet such interests.

1. Requesting Preventive Mediation. Preventive mediation is initiated by joint request of the parties, indicating in writing their intention to participate in the process.

2. If Preventive Mediation Does Not Result in an Agreement. If preventive mediation does not result in an agreement, a new mediator will be assigned to assist the parties in traditional mediation upon the request of either party.

§ 4. Costs

The mediator’s fee and necessary expenses must be shared equally by the parties. The mediator’s fee is established by 26 M.R.S.A §965(2)(C). In order to initiate mediation, a party must first file a mediation request form with the Board, pursuant to the filing requirements of Chapter 10, section 7. The party must also provide by mail or hand delivery to the Board’s office a payment of $750, the party’s share of the estimated costs of mediation services. Upon receiving a request for mediation and the accompanying payment, the executive director shall appoint a mediator from the Panel of Mediators and shall bill the other party $750 for its share of the estimated costs of mediation services. The executive director shall bill or reimburse the parties for any difference between the estimated costs that were collected and the actual costs of providing the services.

§ 5. Appointment of Mediators

The executive director is responsible for appointing a member of the Panel of Mediators to assist the parties in resolving their dispute. The assigned mediator is responsible for scheduling all mediation sessions.

§ 6. Confidentiality in Mediation

Any information disclosed by either party to the dispute to the mediator in the performance of the duties of a mediator is privileged, as provided by 26 M.R.S.A. §965(2).

( § 7 - § 20. Reserved.)

FACT-FINDING

§ 21. Who May Request Fact Finding

Either party to a dispute may request the executive director to assign a fact-finding panel in accordance with these rules. When a request for fact finding is received, the executive director shall appoint a fact-finding panel, ordinarily of three members. In the case of judicial employees, if the parties agree to call upon the Board of Arbitration and Conciliation for fact-finding services, they must file a joint request for fact finding in accordance with 26 M.R.S.A. §1285(3) and with these rules.

§ 22. Request to Waive Fact Finding

Except in the case of judicial employees, if the parties agree not to follow the established fact-finding procedures, they shall jointly apply to the executive director to waive fact finding. The executive director may, in his or her discretion, concur with that agreement when substantial negotiating progress has been made prior to fact finding and the factual issues to be presented to an arbitrator or arbitration panel are reasonable and manageable in their number and difficulty.

§ 23. Request for Fact-Finding

The filing party shall file the request for fact-finding with the executive director pursuant to the filing requirements of Chapter 10, section 7. The request may be submitted on a form supplied by the Board. The request must contain:

1. Name of Requesting Party. The name, address, business and residence telephone numbers of the person filing the request and, if different, the name, address, business and residence telephone numbers of the person responsible for making the presentation to the fact finders.

2. Name of Representatives of Other Party. The name, address, business and residence telephone numbers of the bargaining representative of the other party and, if different, the name, address, business and residence telephone numbers of the person who is expected to make the presentation to the fact finders on behalf of the other party, if known.

3. Name of Bargaining Unit. The name of the bargaining unit involved, or the bargaining units involved if the negotiations involve more than one bargaining unit.

4. Type of Request. A statement indicating whether the request is unilateral or joint. If it is a joint request, the request must include a statement indicating whether the request is a joint request for the services of the Board of Arbitration and Conciliation as fact finders or seeks the appointment of private fact finders by the executive director.

5. Issues in Controversy. An appended statement indicating the unresolved issues in controversy marked "Issues in Controversy, Exhibit 1" signed by the requesting party, if the request is unilateral, or signed by the requesting party and the bargaining representative of the other party if the request is joint.

6. Alternative Times and Dates. An indication of alternative times, dates and places suitable for the requested hearing and an indication of which, if any, are acceptable to both parties to the controversy.

7. Signatures. The place and date the request was made, the signature of each requesting individual and the capacity in which each individual is acting.

§ 24. Copy of Request to Other Party

Any party making a unilateral request for fact finding shall mail or email a copy of that request to the other party.

§ 25. Qualification of Fact Finders

No person may serve as a fact finder who is from the community involved in the dispute or who may have a conflict of interest arising from the circumstances of the controversy. However, if both parties waive this geographic restriction, the executive director may appoint fact finders who are residents of the community involved in the dispute.

§ 26. Appointment of Fact Finders

The executive director shall appoint a panel of fact finders in accordance with this rule, whether the request is a joint request for fact finders from the Board of Arbitration and Conciliation (BAC) or a request for private fact finders.

1. Board of Arbitration and Conciliation (BAC). When the executive director has received a joint request for fact-finding services from members of the BAC, the executive director may first bill the parties for the estimated costs in accordance with section 27 of this Chapter. Once one party has paid its share, the executive director shall appoint the fact-finding panel from the three categories of BAC members.

2. Private Fact Finders. When there is a request for private fact finders, the executive director shall appoint these fact finders by making reference to three lists of fact finders maintained by the Maine Labor Relations Board, marked "Management Representative Fact Finders," "Employee Representative Fact Finders" and "Neutral-Chair Fact Finders." The executive director shall submit the current list of employee fact finders to the bargaining agent and the current list of management fact finders to the public employer. After receipt of such lists, each party shall notify the executive director of the names, in order of preference, of no more than 5 persons from the list of fact finders which that party prefers to have appointed to the fact-finding panel. The executive director will make every effort to comply with the parties' wishes in appointing the employee and management representatives to the fact-finding panel, but is not required to do so. The executive director shall select one person from each of the lists provided by the parties to serve on the fact-finding panel and shall select one person from the "Neutral-Chair Fact-Finders" list to be chair of the panel.

§ 27. Costs

The costs for services of the fact-finding panel must be shared equally by the parties to the controversy. Costs include per diem expenses and actual and necessary travel and subsistence expenses for the panel, the costs, if any, of hiring the premises where the hearing is conducted and the costs and expenses incurred in the production and publication of the resulting report, including stenographic expenses. The billing process depends on whether the fact finders are members of the Board of Arbitration and Conciliation or private fact finders.

1. Board of Arbitration and Conciliation (BAC) Fact Finders. When a request for fact-finding services by members of the BAC is received, the executive director may estimate costs and collect those costs prior to providing the services. Per diem fees are established by statute in 26 M.R.S.A. §931. Once one party has paid its share of the estimated cost, the matter is scheduled for hearing. The executive director shall bill or reimburse the parties for any difference between the estimated costs that were collected and the actual costs of providing the services.

2. Private Fact Finders. The parties are billed directly for the costs of services provided by private fact finders. The fees are set by the individual private fact finders.

§ 28. Notice of Hearing

Once the executive director has appointed fact finders and arranged for the hearing, the executive director shall notify all parties to the controversy and the fact finders of the time, place, and date for the hearing. This notification to the parties and to the fact finders must be sent at least 10 working days prior to the date set for the hearing. This 10-day limitation may be modified for cause by the executive director.

§ 29. Cancellations

A unilateral cancellation of a fact-finding hearing is not permitted once the letter of appointment and notice of hearing has been sent by the executive director. Fact-finding proceedings may only be cancelled or postponed if both parties to the controversy jointly agree and so notify the executive director and the members of the fact-finding panel. If a private fact-finding hearing is cancelled by joint agreement of the parties after the letter of appointment and notice of hearing has been sent, the members of the private fact-finding panel are entitled to a minimum of one day's compensation and reimbursement for expenses incurred if the cancellation occurs within 5 calendar days of the date of the hearing. Payment of these costs to the private fact finders must be shared equally by the parties to the controversy.

§ 30. Submission of Briefs or Statements

Each party to the controversy shall submit a brief or statement on the unresolved issues in controversy to the other party, to each of the appointed members of the fact-finding panel, and to the executive director at least 5 working days prior to the date of hearing. This period may be modified by the executive director if less than 10 days’ notice of the hearing is provided. This brief or statement may contain statements, facts, precedents, or other pertinent evidence to support that party’s position on the issues in question. All issues to be heard in oral argument must be set forth in this brief or statement. If the fact-finding proceeding is unilaterally invoked, the non-invoking party must include in its brief or statement any new issues it will raise at the fact-finding proceeding. The party requesting fact finding shall submit with its brief the most recent collective bargaining agreement, if any, between it and the other party.

§ 31. Conduct of Hearings

A fact-finding hearing is not a public hearing. A fact-finding hearing may only be public if all the parties and all the fact finders agree to have it public.

§ 32. Ex Parte Communications

A party’s representative may communicate with that side’s partisan member of the fact-finding panel without violating any prohibition on ex parte communications. No party or other person legally interested in the outcome of a hearing, however, may communicate ex parte either directly or indirectly with the panel’s neutral chair.

§ 33. Evidence

The fact-finding panel shall base its findings of fact and recommendations upon reliable and credible evidence produced at the hearing, but the panel may not insist on adherence to the legal rules of evidence. The fact-finding panel may request statistical data and reports on its own initiative in addition to the data regularly maintained by the Department of Labor. The panel has the power to administer oaths and to require by subpoena the attendance and testimony of witnesses and the production of books, records and other evidence relative or pertinent to the issues presented to them.

§ 34. Post-Hearing Briefs

When requested by a majority of the fact-finding panel, post-hearing briefs must be submitted not more than 10 calendar days after the termination of the fact-finding hearing.

§ 35. Fact-Finders Report

It is the responsibility of the chair of the fact-finding panel to prepare and distribute a fact-finding report containing the fact finders’ findings and recommendations.

1. Distribution; Due Date. The chair of the fact-finding panel shall submit a copy of the fact-finding report to each of the parties to the controversy and the original and one duplicate to the executive director not more than 30 calendar days after the termination of the hearing or after the panel's receipt of any post-hearing evidence or argument.

2. Extension of Due Date. The 30-day limit for the distribution of the fact-finding report may be extended by the Maine Labor Relations Board or executive director only in extenuating circumstances if the chair of the fact-finding panel initiates the request for an extension at least 5 calendar days before the expiration of the 30-day period. The chair must confirm the request in writing and provide a copy to each party. The Board or executive director shall rule on the request, state whether or not the extension was granted and, if so, the length of the extension, and shall send a copy of the ruling and the request to the chair of the fact-finding panel and to each of the parties to the controversy.

§ 36. Contents of Report

As a minimum, the report must contain:

1. Heading. A clear and concise heading making it readily apparent that the report results from a fact-finding hearing.

2. Parties. A clear and concise designation of each of the parties to the controversy.

3. Panel Members. The name and affiliation of each member of the fact-finding panel.

4. Time of Hearing. Time, date and place of the commencement and termination of the hearing.

5. Party Representatives. Names and capacities of persons appearing for and representing each side in the controversy.

6. Procedures Used. Statement of procedures followed prior to the fact-finding hearing.

7. Recommendations and Issues Resolved by Agreement. A detailed description of each unresolved issue submitted as an issue in controversy indicating the issue, the position of each party at the time of hearing and the ultimate recommendation of the fact finders on that issue. Any issues resolved by mutual agreement prior to or at the hearing must also be noted. In the case of successor agreements, the applicable contract sections which are the subject of recommendations by the fact finders must be specifically identified by article and section number.

8. Signatures. Date, place, capacities and signatures of the members of the fact-finding panel and, in the absence of any member’s signature, an indication of whether a minority report will be filed.

§ 37. Minority Reports

Minority reports may be submitted as a result of fact-finding hearings but must be prepared by the fact finder submitting the minority report. A minority report, if any, must be filed with each of the parties to the controversy, with the majority members of the fact-finding panel and with the executive director not more than 10 working days after the submission of the majority report. A minority report must be clearly marked "Minority Report," must contain the items specified in section 36 of this Chapter, subsections 1, 2 and 3, must clearly state each issue on which the panel member is dissenting and must state the dissenting member’s recommendations and reasons on an issue-by-issue basis.

§ 38. Subsequent Action by the Parties

The parties have a period of 30 calendar days after the receipt of findings and recommendations from the fact finders in which to make a good faith effort to resolve their controversy. If the parties have not resolved their controversy by the end of that period, either party may make the fact-finding recommendations public, but not until the end of that period unless the parties otherwise jointly agree.

( § 39 - § 50. Reserved .)

ARBITRATION

§ 51. Joint Request Required for Board of Arbitration and Conciliation (BAC)

All requests for arbitration services from members of the BAC must be a joint request from the parties to the dispute. In the case of interest arbitration, both parties must sign a letter or form requesting interest arbitration from the BAC. In grievance arbitration cases, if the applicable collective bargaining agreement includes an agreement to use the services of the BAC, the request filed need not be a joint request.

§ 52. Costs

When a joint request for arbitration services by members of the BAC is received, the executive director may estimate costs and collect those costs prior to providing the services. Per diem fees are established by statute in 26 M.R.S.A. §931. Once one party has paid its share of the estimated cost, the matter is scheduled for hearing. The executive director shall bill or reimburse the parties for any difference between the estimated costs that were collected and the actual costs of providing the services.

§ 53. Other Arbitration Proceedings

If the parties do not agree to request the services of the BAC jointly, the procedures specified in the applicable collective bargaining statute for selecting an arbitrator or arbitration panel apply.

History

• STATUTORY AUTHORITY: 26 M.R.S §968 sub-§3
• EFFECTIVE DATE: January 1, 2001 – filing 2000-527
• NON-SUBSTANTIVE CORRECTION: February 20, 2001 - adjusted punctuation.
• AMENDED: April 1, 2020 – filing 2020-037
• AMENDED: APAO WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK: July 17, 2025

12-181 Maine Apprenticeship Program

Chapter 1 Rules Relating to Labor Standards for Registration of Apprenticeship Programs

Code Me. R. 12-181 Ch. 1 Rules Relating to Labor Standards for Registration of Apprenticeship Programs {#sec-12-181-ch.-1 omnilex-key=us-me-regs-official--dept-labor--12-181 Ch. 1}

SUMMARY: These rules are adopted to establish, define and provide for the registration and deregistration of Apprenticeship Agreements or Programs with the Maine Apprenticeship Program. They contain guidelines for holding hearings and give the authority and the effective date.

Sections

1.1 Purpose and Scope

1.2 Definitions

1.3 Eligibility and Procedure for Maine Apprenticeship Program Registration

1.4 Criteria for Apprenticeable Occupations

1.5 Standards of Apprenticeship

1.6 Apprenticeship Agreement

1.7 Deregistration of Registered Programs

1.8 Hearings

1.9 Reinstatement of Program Registration

1.10 Complaints

1.11 Reciprocity

Sec. 1.1 Purpose and Scope

A. Title 26 MRSA Chapter 37 at 3202 authorizes and directs the Maine Apprenticeship Program to formulate and promote the furtherance of labor standards necessary to safeguard the welfare of apprentices and to extend the application of such standards by requiring the inclusion thereof in contracts of apprenticeship.

B. The purpose of this regulation is to set forth labor standards to safeguard the welfare of apprentices, promote apprenticeship opportunity and to extend the application of such standards by prescribing rules and regulations concerning the registration of acceptable apprenticeship programs in Maine. These labor standards, rules and regulations cover the registration, termination and deregistration of apprenticeship programs and of apprenticeship agreements, and matters relating thereto.

C. The provisions of this regulation shall apply to a person, firm, corporation, occupation or craft only after such person, firm, corporation, occupation or craft has voluntarily elected to conform to its provision.

Sec. 1.2 Definitions

As used in this regulation:

A. "Apprentice" means a person who is at least 16 years of age, except when a higher minimum age standard of 18 years of age is otherwise fixed by law or a sponsor, who is employed to learn an apprenticeable occupation that is approved by the Maine Apprenticeship Program.

B. "Apprenticeship Agreement" means a written agreement which conforms to standards established under Chapter 37 and this regulation and is entered into between an apprentice and either (1) an employer, (2) an association of employers, (3) an organization of employees, or (4) a joint committee representing employers and employees.

C. "Apprenticeship Committee" means those persons designated by the sponsor to act for it in the administration of the program. A committee may be " joint ", i.e., it is composed of an equal number of representatives of the employer(s) and of the employees represented by a bona fide collective bargaining agent(s) and has been established to conduct, operate, or administer an apprenticeship program and enter into apprenticeship agreements with apprentices. A committee may be " unilateral " or " non‑joint "' and shall mean a program sponsor in which a bona fide collective bargaining agent is not a participant; it includes an individual non-joint sponsor (apprenticeship program sponsored by one employer without the participation of a union) and group non-joint sponsor (apprenticeship program sponsored by two or more employers without the participation of a union).

D. "Apprenticeship Program" means a plan containing all terms and conditions for the qualification, recruitment, selection, employment and training of apprentices, as required under Maine Revised Statutes, Title 26 Chapter 37, including such matters as the requirements for a written apprenticeship agreement.

E. "Apprenticeship Standard" means the written document which sets forth the minimum labor standards required by law for training apprentices in a specified industry, area or plant. By reference, it is a part of the apprenticeship agreement. There are two basic types of standards - one providing for joint employer-union participation in the program and the second, referred to as unilateral standards, where responsibility for the apprenticeship is assumed by either management or organized labor, but not both. Normally, unilateral programs are sponsored by single employers.

F. “Bureau” means the Bureau of Employment Services within the Department

G “Committee” means the Maine Apprenticeship Committee established to assist, advise and guide the Maine Apprenticeship Program in the operation of the State’s apprenticeship program.

H “Department” means the Maine Department of Labor

I. “Electronic media” means media that utilize electronics or electromechanical energy for the end user (audience) to access the content; and includes, but is not limited to, electronic storage media, transmission media, the Internet, extranet, lease lines, dial-up lines, private networks, and the physical movement of removable/transportable electronic media and/or interactive distance learning.

J. "Employer" means any person or organization employing an apprentice whether or not such person or organization is a party to an apprenticeship agreement with the apprentice.

K. “Maine Apprenticeship Program” means the Maine Apprenticeship Program administered by the Bureau within the Department and is the state apprenticeship agency and registration agency established in MRS Title 26, Chapter 37, Section 3202 that has the responsibility for registering apprenticeship programs and apprentices; providing technical assistance; conducting reviews for compliance with 29CFR parts 29 and 30 and quality assurance assessments.

L. "Related Instruction" means an organized and systematic form of instruction designed to provide the apprentice with knowledge of the theoretical and technical subjects related to the apprentice’s occupation. Such instruction may be given in a classroom, through occupational or industrial courses, or by correspondence courses of equivalent value, electronic media, or other forms of self-study approved by the Maine Apprenticeship Program.

M. "Registration of an Apprenticeship Program" means the acceptance and recording of such program by the Maine Apprenticeship Program as meeting the basic standards and requirements of the Bureau for approval of such program. Approval is evidenced by a certificate of registration or other written indicia.

N. "Registration of an Apprenticeship Agreement" means the acceptance and recording thereof by the Maine Apprenticeship Program as evidence of the participation of the apprentice in a particular registered apprenticeship program.

O. "Sponsor" means any person, association, committee, or organization operating an apprenticeship program and in whose name the program is approved and registered.

Sec. 1.3 Eligibility and Procedure for Maine Apprenticeship Program Registration

A. No apprenticeship program or agreement shall be eligible for registration with the Maine Apprenticeship Program unless it is in conformity with the requirements of Chapter 37 and this regulation, and the training is in an apprenticeable occupation requiring not less than 2,000 hours of on job work experience and the characteristics set forth in MRS Title 26, Chapter 37

B. Apprentices must be individually registered under a registered program. Such registration shall be affected by filing copies of each apprenticeship agreement with the Maine Apprenticeship Program. Registration shall be reserved for those desiring to learn an occupation through reasonably continuous employment. Agreements shall not be registered for persons desiring only interim work or employed on a substantially shorter work week than is prevailing in the industry. This, however, does not apply to students pursuing a course of study in the same trade or closely related to the trade for which application is being made for registration.

C. The Maine Apprenticeship Program shall be notified within 45 days of persons who have successfully completed apprenticeship programs; and of transfers, suspensions, and cancellations of apprenticeship agreements and a statement of the reasons therefore.

D. Approved apprenticeship programs shall be accorded registration, evidenced by a certificate of registration.

E. Any modification(s) or change(s) to registered standards shall be promptly submitted to the Maine Apprenticeship Program and if approved, shall be recorded and acknowledged as a revision of such standards.

F. The request for registration, together with all documents and data required by Chapter 37 and this regulation, shall be submitted to the Maine Apprenticeship Program.

G. Under a program proposed for registration by an employer or employers' association, where the standards, collective bargaining agreement or other instrument, provides for participation by a union in any matter in the operation of the substantive matters of the apprenticeship program, and such participation is exercised, written acknowledgement of union Sec. 1.3 Eligibility and Procedure for Committee Registration (cont.) agreement or "no objection" to the registration is required. Where no such participation is evidenced and practiced, the employer or employers' association shall simultaneously furnish to the union, if any, which is the collective bargaining agent of the employees to be trained, a copy of its application for registration and of the apprenticeship program. The Maine Apprenticeship Program shall provide a reasonable time period of not less than 30 days nor more than 60 days for receipt of union comments, if any, before final action on the application for registration and/or approval.

H. Where the employees to be trained have no collective bargaining agent, an apprenticeship program may be proposed for registration by an employer or group of employers.

I. If the sponsor is involved in any abnormal labor condition such as a strike, lockout, or other similar condition, the application for an apprenticeship program may be withheld until such issue is resolved.

J. If it should be determined by the Bureau that a sponsor is in violation of any Federal or State Labor laws or rules and regulations affecting registration of programs, the application for an apprenticeship program may be withheld until such issues are resolved.

Sec. 1.4 Criteria for Apprenticeable Occupations

An apprenticeable occupation is one which is specified by the industry and which possesses all of the following characteristics:

A. Is customarily learned in a practical way through a structured systematic program of on-the-job supervised training;

B. It is clearly identified and commonly recognized throughout an industry;

C. Involves the progressive attainment of manual, mechanical or technical skills and knowledge which, in accordance with the industry standard for the occupation, would require the completion of at least 2,000 hours on on-the-job learning to attain; and

D. It requires related instruction to supplement the on-the-job learning.

Sec. 1.5 Standards of Apprenticeship

An apprenticeship program to be eligible for approval and registration by the Maine Apprenticeship Program shall conform to the following standards:

A. The program must have an organized, written plan embodying the terms and conditions of employment, training, and supervision of one or more apprentices in the apprenticeable occupation, as defined in Chapter 37 and this regulation, and subscribed to by a sponsor who has undertaken to carry out the apprentice training program.

B. The program standards must contain provisions that address:

1. The employment and training of the apprentice in a skilled occupation.

2. The term of apprenticeship, which for an individual apprentice may be measured either through the completion of the industry standard for on-the-job learning (at least 2,000 hours) (time-based approach), the attainment of competency (competency-based approach), or a blend of the time-based and competency-based approaches (hybrid approach) as defined in MRS Title 26, Chapter 37 section 3203.

3. An outline of work processes in which the apprentice will receive supervised work experience and training on the job, and the allocation of the approximate time to be spent in each major process;

4. Provision for organized, related instruction in technical subjects related to the occupation.

i. A statement of the number of hours to be spent in related instruction which shall not be less than the statutory minimum number of hours per year (144 hours for each year of apprenticeship). This instruction in technical subjects may be accomplished through media such as classroom, occupational or industrial courses, electronic media, or other instruction approved by the Maine Apprenticeship Program. Every apprenticeship instructor must:

ii. Meet the State Department of Education’s requirement for a vocational technical instructor in Maine, or be a subject matter expert, which is an individual such as a journeyworker, who is recognized within an industry as having expertise in a specific occupation; and

iii. Have training in teaching techniques and adult learning styles, which may occur before or after the apprenticeship instructor has started to provide the related technical instruction.

5. A statement that apprentices shall be at least sixteen years of age, with the exception of a higher age requirement which the Bureau has determined applicable in accordance with the State and Federal Child Labor Laws;

6. A statement of the progressively increasing scale of wages to be paid the apprentice consistent with the skill acquired, the entry wage to be not less than the minimum wage prescribed by the Federal and State Labor Standards Acts, where applicable, unless a higher wage is required by other applicable Federal law, State law, respective regulations, or by collective bargaining agreement;

7. A provision for probationary period reasonable in relation to the full apprenticeship term, with full credit given for such period toward completion of apprenticeship;

8. A provision that during the period of probation, the Maine Apprenticeship Program shall be directed to terminate an apprenticeship agreement the request in writing of any party thereto;

9. A provision that after the probationary period, the Maine Apprenticeship Program shall be empowered to terminate an apprenticeship agreement upon agreement of the parties thereto, or for good cause after giving all parties notice and opportunity to be heard;

10. Provision that the services of the Committee may be utilized for consultation regarding the settlement of differences arising out of apprenticeship agreement and where the differences cannot be adjusted locally, or in accordance with the established trade procedure, and any such differences which cannot be amicably settled by the parties may be submitted to the Bureau for final decision:

11. Provision for the numeric ratio of apprentice to journeymen consistent with proper supervision, training, safety, and reasonable continuity of employment, and applicable provisions in collective bargaining agreements, in relation to which a ratio of one apprentice for the first journeyman regularly employed and one apprentice for each subsequent three journeymen regularly employed by a participating employer in each apprenticeable occupation be established. The Maine Apprenticeship Program shall have the authority to waive the above ratio in those circumstances in which it may deem such action warranted. All requests for waivers shall be made in writing to the Maine Apprenticeship Program

12. Provision for transfer of employer's training obligation when the employer is unable to fulfill the obligation under the apprenticeship agreement to another employer under the same program with the consent of the apprentice and Maine Apprenticeship Program or program sponsor, with full credit to the apprentice for satisfactory time and training earned;

13. Provision for minimum qualifications required by a sponsor for persons entering the apprenticeship program;

14. Provision for granting of an advanced standing or credit for previously acquired experience, training, or skills for all applicants equally, with commensurate wages for any progression step so granted;

15. A provision that the employer shall instruct the apprentice in safe and healthful work practices and shall insure that the apprentice is trained in facilities and other environments that are in compliance with either the occupational safety and health standards promulgated by the Secretary of Labor under Public Law 91-596, or State standards that have been found to be at least as effective as the Federal standards;

16. A provision for the placement of an apprentice under a written apprenticeship agreement, which shall directly, or by reference, incorporate the standards of the program as part of the agreement;

17. A provision for periodic review and evaluation of the apprentice's progress in job performance and in related instruction, and the maintenance of appropriate progress records;

18. A provision of recognition for successful completion of apprenticeship evidenced by an appropriate certificate;

19. Identification of the registration agency;

20. A statement that the regular workday or work week for apprentices shall not be greater than those of the journeyworkers;

21. Provision for the registration, cancellation and deregistration of the program and requirement for the prompt submission of any modification or revision thereto;

22. Provision for registration of apprenticeship agreements and revisions, notice to the Maine Apprenticeship Program of persons who have successfully completed apprenticeship programs, and notice of terminations and suspensions of apprenticeship agreements and causes therefore;

23. A statement of how the committee is to be organized and a statement of the functions of the committee are required if the program sponsor is a joint apprenticeship committee;

24. Compliance with 29 CFR part 30, including the equal opportunity pledge prescribed in 29 CFR 30.3(c); an affirmative action program complying with 29 CFR 30.4; and a method for the selection of apprentices complying with 29 CFR 30.10, or compliance with parallel requirements contained in a State plan for equal opportunity in apprenticeship adopted under 29 CFR part 30 and approved by the Department. The apprenticeship standards must also include a statement that the program will be conducted, operated and administered in conformity with applicable provisions of 29 CFR part 30, as amended, or if applicable, an approved State plan for equal opportunity in apprenticeship. A statement containing the equal opportunity pledge prescribed as follows:

[Name of sponsor] will not discriminate against apprenticeship applicants or apprentices based on race, color, religion, national origin, sex (including pregnancy and gender identity), sexual orientation, genetic information, or because they are an individual with a disability or a person 40 years old or older. [Name of sponsor] will take affirmative action to provide equal opportunity in apprenticeship and will operate the apprenticeship program as required under Title 29 of the Code of Federal Regulations, part 30.

25. Name and address of the appropriate authority under the program to receive, process, and make disposition of complaints;

26. Provision for a participating employer's agreement; and

27. All apprenticeship standards must contain articles to comply with Federal laws, regulations and rules pertaining to apprenticeship.

Sec. 1.6 Apprenticeship Agreement

The apprenticeship agreement shall contain explicitly or by reference:

A. Name and signature of the contracting parties (apprentice, and the program sponsor or employer), and the signature of a parent or guardian if the apprentice is a minor;

B. The date of birth of apprentice;

C. Name and address of the program sponsor and registration agency;

D. A statement of the trade or craft in which the apprentice is to be trained and the beginning date and term of apprenticeship;

E. A statement showing:

1. The number of hours to be spent by the apprentice in work on the job; and

2. The number of hours to be spent in related and supplemental instruction;

F. A statement setting forth a schedule of the work processes in the trade in which the apprentice is to be trained and the approximate time to be spent at each process;

G. A statement of the graduated scale of wages to be paid the apprentice and whether or not the required school time shall be compensated;

H. Statements providing

1. For a specific period of probation during which the apprenticeship agreement may be terminated by either party to the agreement upon notice to the Maine Apprenticeship Program and

2. That, after the probationary period, the agreement may be terminated at the request of the apprentice, or may be suspended, or terminated by the sponsor, for good cause, with due notice to the apprentice and a reasonable opportunity for corrective action, and with written notice to the apprentice and to the Committee of the final action taken;

I. A statement that the apprentice will be accorded equal opportunity in all phases of apprenticeship employment and training, without discrimination because of race, color, religion, ancestry, sex, age, physical handicap, marital status, or court and arrest record; and

J. Name and address of the appropriate authority, if any, designated under the program to receive, process and make disposition of controversies or differences arising out of the apprenticeship agreement; any such controversies and differences which cannot be amicably settled by the parties may be submitted to the Maine Apprenticeship Program for final decision.

Sec. 1.7 Deregistration of Maine Apprenticeship Program-Registered Program

Deregistration of a program may be effected upon the voluntary action of the sponsor by a request for cancellation of the registration or, upon reasonable cause, by the Maine Apprenticeship Program, instituting formal deregistration proceedings in accordance with the provisions of this regulation.

A. Request by Sponsor. The Maine Apprenticeship Program may cancel the registration of an apprenticeship program by a written acknowledgement of such request stating, but not limited to, the following:

1. The registration is canceled at sponsor's request, and giving the effective date of such cancellation; and

2. That, within 15 workdays of the date of the acknowledgement, the sponsor must notify all apprentices of such cancellation and the effective date; that such cancellation automatically deprives the apprentice of his/her individual registration.

B. Deregistration by Maine Apprenticeship Program

1. Deregistration proceedings may be undertaken when the apprenticeship program is not conducted, operated, or administered in accordance with the registered standards or the requirements of Chapter 37 or this regulation.

2. Where it appears the program is not being operated in accordance with the registered standards or with requirements of Chapter 37 or this regulation, the Maine Apprenticeship Program shall so notify the program sponsor in writing.

3. The notice shall be sent by registered or certified mail, return receipt requested, shall state the deficiency(s) and remedy(s) required and shall state that the program will be deregistered for cause unless the corrective action is taken within 30 days.

4. Upon request by sponsor, the 30-day period may be extended for up to an additional 30-day period. During the period for correction the sponsor may be assisted in every reasonable way by the Committee.

5. If the required action is not taken within the allotted time, the Maine Apprenticeship Program shall send a notice to the sponsor by registered or certified mail, return receipt requested, stating the following:

a. This notice is sent pursuant to this subsection;

b. That certain deficiencies were called to the sponsor's attention and remedial actions requested;

c. Based upon the stated cause, the program will be deregistered, unless within 15 Workdays of receipt of this notice, the sponsor requests a hearing; and

d. If a hearing is not requested by the sponsor, the program will be automatically deregistered.

6. If the sponsor requests a hearing, the Maine Apprenticeship Program shall convene a hearing in accordance with Section 8 of these regulations.

7. In its discretion, the Maine Apprenticeship Program may allow the sponsor a reasonable time to achieve voluntary corrective action. If the Maine Apprenticeship Program’s decision is that the apprenticeship program is not operating in accordance with the registered standards or requirements of Chapter 37 and this regulation, the apprenticeship program shall be deregistered. In each case in which deregistration is ordered the Maine Apprenticeship Program shall notify the sponsor.

8. Every order of deregistration shall contain a provision that the sponsor shall, within 15 workdays of the effective date of the order, notify all registered apprentices of the de-registration of the program, the effective date, and that such action automatically deprives the apprentice of his/her individual registration.

Sec. 1.8 Hearings

A. Notice of hearings to be held by the Maine Apprenticeship Program shall be given as follows:

1. Within 10 working day of receipt of a request for a hearing, notice will be given by registered mail, return receipt requested, to the person or person's whose legal rights, duties or privileges are at issue, sufficiently in advance of the hearing date to afford an adequate opportunity to prepare and submit evidence and argument.

B. All Notices of Hearings shall contain the following:

1. A statement of the legal authority and jurisdiction under which the proceeding is being conducted;

2. A reference to the particular substantive statutory and rule provisions involved;

3. A short and plain statement of the nature and purpose of the proceeding and of the matters asserted;

4. A statement of the time and place of the hearing;

5. A statement of the manner and time within which evidence and argument may be submitted to the agency for consideration.

C. Disposition without full hearing

1. The Maine Apprenticeship Program may make informal disposition of any adjudicatory proceeding by default when any party fails to appear at the scheduled hearing, provided that notice of the consequences of such failure to appear has been given to said party. Any such default may be set aside by the Maine Apprenticeship Program for good cause shown.

2. The Maine Apprenticeship Program may limit the issues to be heard or vary any procedure prescribed by Maine Apprenticeship rule or the Administrative Procedure Act if the parties and Maine Apprenticeship Program agree to such limitation or variation, or if no prejudice to any party will result.

D. Ex Parte Communications: Separation of Functions,

1. In any adjudicatory proceeding, no panel members authorized to take final action or presiding officers designated by the Maine Apprenticeship Program to make findings of fact and conclusions of law shall communicate directly or indirectly, in connection with any issue of fact, law or procedure, with any person, except upon notice and opportunity for all parties to participate.

2. This section shall not prohibit the panel member or other presiding office described above from:

a. Communicating in any respect with other members of the panel or other presiding officer; or

b. Having the aid or advice of those members of his own Committee staff, counsel or consultants retained by the panel who have not participated and will not participate in the Maine Apprenticeship Program proceeding in an advocate capacity.

E. Opportunity to be Heard

1. The opportunity for hearing shall be afforded without undue delay.

F. Evidence

1. The panel need not observe the rules of evidence observed by the courts but shall observe the rules of privilege recognized by law.

2. Evidence shall be submitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The panel may exclude irrelevant or unduly repetitious evidence.

3. All witnesses shall be sworn.

4. Subject to these requirements, the Committee may, for the purposes of expediting adjudicatory proceedings, require the prefiling of all or part of the testimony of any witness in written form. Every such witness shall be subject to oral cross-examination.

5. No sworn written evidence shall be admitted unless the author is available for cross-examination or subject to subpoena, except for good cause shown.

G. Official Notice

1. The Maine Apprenticeship Program may take official notice of any facts of which judicial notice could be taken, and in addition may take official notice of general, technical or scientific matters within their specialized knowledge and of statutes, regulations and nonconfidential agency records. Parties shall be notified of the material so noticed, and they shall be afforded an opportunity to contest the substance or materiality of the facts noticed.

2. Facts officially noticed shall be included and indicated as such in the record.

3. Notwithstanding the foregoing, the panel may utilize their experience, technical competence and specialized knowledge in the evaluation of the evidence presented to them.

H. Record

1. In all adjudicatory proceedings the Maine Apprenticeship Program shall make a record consisting of the following:

a. All applications, pleadings, motions, preliminary and interlocutory rulings and orders;

b. Evidence received or considered;

c. A statement of facts officially noticed;

d. Offers of proof, objections and rulings thereon;

e. Proposed findings and exceptions, if any;

f. The recommended decision, opinion or report, if any, by the presiding officer;

g. The decision of the Maine Apprenticeship Program; and

h. All staff memoranda submitted to the members of the Maine Apprenticeship Program or other presiding officers by Maine Apprenticeship Program staff in connection with their consideration of the case, except memoranda of counsel to the Maine Apprenticeship Program.

2. The Maine Apprenticeship Program shall record all hearings in a form susceptible to transcription. Portions of the record as required and specified in subsection 1 of this rule may be included in the recording. The Maine Apprenticeship Program shall transcribe the recording when necessary for the prosecution of an appeal.

3. The Maine Apprenticeship Program shall make a copy of the record, including recordings made pursuant to subsection 2 of this rule, available at the office of the Maine Department of Labor for inspection by any person during normal business hours; and make copies of the recordings or transcriptions or recordings available to any person at actual cost. Notwithstanding the provisions of this subsection, the Maine Apprenticeship Program shall withhold, obliterate or otherwise prevent the dissemination of any portions of the record which are made confidential by State or federal statute, but shall do so in the least restrictive manner feasible.

4. All material, including record, reports, and documents in possession of the Maine Apprenticeship Program, of which it desires to avail itself as evidence in making a decision, shall be offered and made part of the record and no other factual information or evidence shall be considered in rendering a decision.

5. Documentary evidence may be incorporated in the record by reference when materials so incorporated are made available for examination by the parties before being received in evidence.

I. Subpoenas

1. Pursuant to Title 5 MRSA §9060, the Board may issue a subpoena if it first obtains the approval of the Attorney General or of any deputy attorney general. Any party to the proceeding may request that a subpoena be issued.

2. Authorized subpoenas shall be issued in accordance with the following:

a. The form of the subpoena shall adhere, insofar as practicable, to the form used in civil cases before the courts. Witnesses shall be subpoenaed only within the territorial limits and in the same manner as witnesses in civil cases before the courts, unless another territory or manner is provided by law.

b. The subpoena shall show on its face the name and address of the party at whose request it was issued.

c. Any witness subpoenaed may petition the Maine Apprenticeship Program to vacate or modify a subpoena in its name. The Maine Apprenticeship Program shall give prompt notice to the party who requested issuance of the subpoena.

After such investigation as the agency considers appropriate, it may grant the petition in whole or in part upon a finding that the testimony or the evidence whose production is required does not relate with reasonable directness to any matter in question, or that a subpoena for the attendance of a witness or the production of evidence is unreasonable or oppressive or has not been issued a reasonable period in advance of the time when the evidence is requested.

d. Pursuant to Title 5 MRSA §9060 (1) (D) failure to comply with a subpoena lawfully issued and not revoked or modified shall be punishable by a fine of not less than $500.00 and not more than $5,000, or by imprisonment not to exceed 30 days, or both.

J. Decisions

1. Every Maine Apprenticeship Program decision made at the conclusion of an adjudicatory proceeding shall be in writing or stated in the record, and shall include findings of fact sufficient to apprise the parties and any interested member of the public of the basis for the decision. A copy of the decision shall be delivered or promptly mailed to each party to the proceeding or his representative of record. Written notice of the party's rights to review or appeal of the decision within the agency or review of the decision by the courts, as the case may be, and of the action required and the time within which such action must be taken in order to exercise the right of review or appeal, shall be given to each party with the decision.

2. The Maine Apprenticeship Program shall maintain a record of the vote of each member of the agency with respect to the agency decision.

K. Presiding Officers

1. The Chairman of the Committee will act as the presiding officer in any hearing.

2. Whenever a presiding officer is disqualified or it becomes impracticable for him to continue with the hearing, another presiding officer may be assigned to continue with the hearing; provided that, if it is shown substantial prejudice to any party will thereby result, the substitute officer shall commence the hearing anew.

3. It shall be the duty of the presiding officer to:

a. Administer oaths and affirmations;

b. Rule on the admissibility of evidence;

c. Regulate the course of the hearing, set the time and place for filing of evidence, briefs and other written submissions; and

d. Take other action authorized by statute or Committee rule.

4. In the event that the presiding officer prepares any report or proposed finding for the Committee, the report or findings shall be in writing. A copy of the report or findings shall be provided to each party and an opportunity shall be provided for response or exceptions to be filed by each party.

5. Hearings shall be conducted in an impartial manner. Upon the filing in good faith by a party of a timely charge of bias or of personal or financial interest, direct or indirect, of a presiding officer or Committee member in the proceeding requesting that that person disqualify himself, that person shall determine the matter as a part of the record.

L. Advisory Rulings

1. Advisory rulings may be made with respect to the applicability of any statute or rule administered by the Maine Apprenticeship Program to an interested person or his property or actual state of facts.

2. An interested person means any apprentice or sponsor over whom the Maine Apprenticeship Program has authority to inspect and enforce its safety standards.

3. All requests for advisory rulings shall be made in writing and submitted to the Director of Apprenticeship Standards, 55 State House Station, Augusta, Maine, 04333-0055. Such requests shall state the facts and statutes or rules on which the ruling is requested.

4. The Director of Apprenticeship Standards may request from any person seeking an advisory ruling any additional information that is necessary. Failure to supply such additional information shall be cause for the Committee to decline to issue an advisory ruling.

5. The Committee may decline to issue an advisory ruling if a citation or penalty has been issued against the person requesting the ruling on the same factual grounds. The Committee may also decline to issue an advisory ruling if such ruling may harm the Committee's interest in any litigation in which it is or may be a party.

6. All advisory rulings shall be issued, in writing no later than 30 days from the date all information necessary to make a ruling has been received by the Director of Apprenticeship Standards.

7. No advisory ruling shall be binding upon the Committee provided that in any subsequent enforcement action initiated by the Committee, any person's reliance on such a ruling shall be considered in mitigation of any penalty sought to be assessed.

Sec. 1.9 Reinstatement of Program Registration

Any apprenticeship program deregistered pursuant to Chapter 37, and this regulation, may be reinstated upon presentation of adequate evidence that the apprenticeship program is operating in accordance with Chapter 37 and this regulation. Such evidence shall be presented to the Maine Apprenticeship Program, if an order of deregistration was entered pursuant to a hearing.

Sec. 1.10 Complaints

A. This section is not applicable to any complaint concerning discrimination or other equal opportunity matters; all such complaints shall be submitted, processed, and resolved in accordance with State or Federal Equal opportunity laws.

B. Any controversy or differences arising under an apprenticeship agreement which cannot be resolved locally, or which is not covered by a collective bargaining agreement may be submitted by an apprentice or his/her authorized representative to the Maine Apprenticeship Program for review. Matters covered by a collective bargaining agreement are not subject to such review.

C. The complaint, in writing, and signed by the complainant, or authorized representative, shall be submitted within 60 days of the final local decision. it shall set forth the specific matter(s) complained of, together with all relevant facts and circumstances. Copies of all pertinent documents and correspondence shall accompany the complaint.

D. The Maine Apprenticeship Program shall render an opinion within 90 days after receipt of the complaint, based upon such investigation of the matters submitted as may be found necessary, and the record before it. During the 90-day period, the Maine Apprenticeship Program shall make reasonable efforts to affect a satisfactory resolution between the parties involved. If so resolved, the parties shall be notified that the case is closed. Where a decision is rendered, copies of the decision shall be sent to all interested parties which shall be final.

Sec. 1.11 Reciprocity

Where there exists similar Standards between the Maine Apprenticeship Program and other states and the Federal Government, reciprocity shall be exercised by the Maine Apprenticeship Program and recognition be given upon presentation of appropriate information.

History

• STATUTORY AUTHORITY: 26 MRSA §2006
• EFFECTIVE DATE: January 26, 1978
• AMENDED: November 20, 1979 (1.5 B10)
• CONVERTED TO MS WORD: July 9, 2003
• AMENDED: August 1, 2007 – filing 2007-313
• AMENDED: July 19, 2022 – filing 2022-130
• AMENDED: APAO WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK: July 17, 2025

Chapter 2 Rules Pertaining to Equal Opportunity for Employment in Registered Apprenticeship Programs in the State of Maine

Code Me. R. 12-181 Ch. 2 Rules Pertaining to Equal Opportunity for Employment in Registered Apprenticeship Programs in the State of Maine {#sec-12-181-ch.-2 omnilex-key=us-me-regs-official--dept-labor--12-181 Ch. 2}

SUMMARY: These rules are adopted to establish, define and provide for the recruitment and selection of apprentices and contain guidelines to promote equality of opportunity and affirmative action in apprenticeship. This chapter represents the Maine Apprenticeship Program’s EEO Plan as required under 29 CFR 30.

Sections

2.1 Purpose, applicability, and relationship to other laws

2.2 Definitions

2.3 Equal Opportunity Standards Applicable to all Sponsors

2.4 Affirmative Action Programs

2.5 Utilization Analysis for Race, Sex, and Ethnicity

2.6 Establishment of Utilization Goals for Race, Sex and Ethnicity

2.7 Utilization Goals for Individuals with Disabilities

2.8 Targeted Outreach, Recruitment, and Retention

2.9 Review of Personnel Processes

2.10 Selection of Apprentices

2.11 Invitation to Self-Identify as an Individual with a Disability

2.12 Recordkeeping

2.13 Equal Employment Opportunity Compliance Reviews

2.14 Complaints

2.15 Enforcement Actions

2.16 Reinstatement of Program Registration

2.17 State Apprenticeship Agencies

2.18 Exemptions

2.19 Effective Date

1. Purpose, applicability, and relationship to other laws

Purpose . The purpose of this part is to promote equal opportunity for apprentices and applicants for apprenticeship in registered apprenticeship programs by prohibiting discrimination based on race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, and disability. This Chapter also prescribes affirmative action efforts sponsors must take to ensure equal opportunity for apprentices and applicants for apprenticeship. The rules set forth the equal opportunity obligations of sponsors, the contents of the affirmative action programs, procedures for the filing and processing of complaints, and enforcement procedures. These rules also establish procedures for deregistration of an apprenticeship for noncompliance with MRS Title 26, §3206, and prescribe the equal opportunity requirements for recognition of State Apprenticeship Agencies (SAAs) under Federal regulations 29 CFR 29.

Applicability. This Chapter applies to all sponsors of apprenticeship with programs registered with the Maine Apprenticeship Program.

Relationship to other laws . This part does not invalidate or limit the remedies, rights, and procedures under any Federal or State laws, or political subdivisions of any State or jurisdiction that provides greater or equal protection for individuals based on race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information or disability than are afforded by this Chapter. It may be a defense to a charge of a violation of this part that a challenged action is required or necessitated by another Federal law or regulation, or that another Federal law or regulation prohibits an action that would otherwise be required by this Chapter.

1. Definitions-for the purpose of this Chapter

Apprenticeship Committee means those persons designated by the sponsor to administer the program. A committee may be either joint or non-joint, as follows:

A joint committee is composed of an equal number of representatives of the employer(s) and the employees represented by a bona fide collective bargaining agent(s);

A non-joint committee, which may also be known as a unilateral or group non-joint (which may include employees) committee, has employer representatives but does not have a bona fide collective bargaining agent as a participant.

Apprenticeship Program means a plan containing all terms and conditions for the qualification, recruitment, selection, employment and training of apprentices as defined in MRS including such matters as the requirement for a written apprenticeship agreement.

Direct threat means a significant risk of substantial harm to the health or safety of the individual or other that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a “direct threat” must be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. This assessment must be based on a reasonable medical judgement that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered are:

The duration of the risk;

The nature and severity of the potential harm;

The likelihood that the potential harm will occur; and

The imminence of the potential harm.

Disability means with respect to the individual:

A physical or mental impairment that substantially limits one or more major life activities of such individual;

A record of such impairment; or

Being regarded as having such impairment.

Note: The definitions for the term ‘disability’ and related terms are those from title I of the Americans with Disabilities Act (ADA), as amended, and from the Equal Employment Opportunity Commission’s regulations implementing the ADA at 29 CFR part 1630.

EEO means equal employment opportunity

Electronic Media means media that utilize electronics or electromechanical energy for the end user (audience) to access the content; and includes, but is not limited to, electrical storage media, transmission media, the Internet, extranet, lease lines, dial-up lines, private networks, and the physical movement of removable/transportable electronic media and/or interactive distance learning.

Employer means any person or organization employing an apprentice whether such person or organization is a party to an Apprenticeship Agreement with the apprentice or not.

Ethnicity , for the purposes of recordkeeping and affirmative action, has the same meaning as under the Office of Management and Budget’s Standards for Classification of Federal Data on Race and Ethnicity, or any successor standards. Ethnicity thus refers to the following designations:

Hispanic or Latino – A person of Cuban, Mexican, Puerto Rica, South or Central America, or other Spanish culture or origin, regardless of race.

Not Hispanic or Latino

Genetic information means

Information about:

• An individual’s genetic tests;
• The genetic tests of that individual’s family members;
• The manifestation of disease or disorder in family members of the individual (family medical history);
• An individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual; or
• The genetic information of a fetus carried by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.

Genetic information does not include information about the sex or age of the individual, the sex or age of family members, or information about the race or ethnicity of the individual or family members that is not derived from a genetic test.

Note: The definition of the term “genetic information” is taken directly from the Genetic Information Nondiscrimination Act of 2008 (GINA) at 42 U.S.C. 2000ff (4) and the EEOC’s implementing regulations at 29 CFR 1635.3(c).

Major life activities include, but are not limited to: Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. A major life activity also includes the operation of major bodily function, including but not limited to, functions of the immune system, special sense organs and skin, normal cell growth, and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The operation of a major bodily function includes the operation of an individual organ within a body system.

Physical or mental impairment means:

Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), and cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin and endocrine; or

Any mental or psychological disorder, such as intellectual disability (formerly termed ‘mental retardation’), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Pre-apprenticeship program means a training model designed to assist individuals who do not currently possess the minimum requirements for selection into an apprenticeship program to meet the minimum selection criteria established in a program sponsor's apprenticeship standards required under part 29 of this Chapter and which maintains at least one documented partnership with a Registered Apprenticeship program. It involves a form of structured workplace education and training in which an employer, employer group, industry association, labor union, community-based organization, or educational institution collaborates to provide formal instruction that will introduce participants to the competencies, skills, and materials used in one or more apprenticeable occupations.

Qualified applicant or apprentice is an individual who, with or without reasonable accommodation, can perform the essential functions of the apprenticeship program for which the individual applied or is enrolled.

Race, for purposes of recordkeeping and affirmative action, has the same meaning as under the Office of Management and Budget's Standards for the Classification of Federal Data on Race and Ethnicity, or any successor standards. Race thus refers to the following designations:

White—A person having origins in any of the original peoples of Europe, the Middle East, or North Africa.

Black or African American—A person having origins in any of the black racial groups of Africa.

Native Hawaiian or Other Pacific Islander—A person having origins in any of the peoples of Hawaii, Guam, Samoa, or other Pacific Islands.

Asian—A person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian Subcontinent including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam.

American Indian or Alaska Native—A person having origins in any of the original peoples of North and South America (including Central America), and who maintains tribal affiliation or community attachment.

Reasonable accommodation

The term reasonable accommodation means:

• Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires;
• Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or
• Modifications or adjustments that enable a sponsor's apprentice with a disability to enjoy equal benefits and privileges of apprenticeship as are enjoyed by its other similarly situated apprentices without disabilities

Reasonable accommodation may include but is not limited to:

• Making existing facilities used by apprentices readily accessible to and usable by individuals with disabilities; and
• Job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities.

To determine the appropriate reasonable accommodation, it may be necessary for the sponsor to initiate an informal, interactive process with the qualified individual in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.

Registration Agency means Maine Apprenticeship Program, that has responsibility for registering apprenticeship programs and apprentices; providing technical assistance; conducting quality assurance assessments and reviews of registered apprenticeship programs in compliance with the Federal requirements.

Selection procedure means any measure, combination of measures, or procedure used as a basis for any decision in apprenticeship. Selection procedures include the full range of assessment techniques from traditional paper and pencil tests, performance tests, training programs, or probationary periods and physical, educational, and work experience requirements through informal or casual interviews and unscored application forms.

Sponsor means any person, association, committee or organization, operating an apprenticeship program, and in whose name the program is (or is to be) registered or approved.

State Apprenticeship Agency (SAA) means an agency of a State government that has responsibility and accountability for apprenticeship within the State. Only an SAA may seek recognition from OA as an agency which has been properly constituted under an acceptable law or Executive Order (E.O.), and authorized by OA to register and oversee apprenticeship programs and agreements for Federal purposes. The Maine Apprenticeship Program is the recognized SAA for Maine and is administered by the Maine Department of Labor.

Undue hardship :

In general, u ndue hardship means, with respect to the provision of an accommodation, significant difficulty or expense incurred by a sponsor.

Factors to be considered i n determining whether an accommodation would impose an undue hardship on a sponsor, include:

• The nature and net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and deductions, and/or outside funding;
• The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources;
• The overall financial resources of the sponsor, the overall size of the registered apprenticeship program with respect to the number of apprentices, and the number, type and location of its facilities;
• The type of operation or operations of the sponsor, including the composition, structure and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the sponsor; and
• The impact of the accommodation upon the operation of the facility, including the impact on the ability of other apprentices to perform their duties and the impact on the facility's ability to conduct business.

1. Equal opportunity standard applicable to all sponsors.

Discrimination

1. Discrimination prohibited . It is unlawful for a sponsor of a registered apprenticeship program to discriminate against an apprentice or applicant for apprenticeship on the basis of race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, or disability with regard to: 1. Recruitment, outreach, and selection procedures; 2. Hiring and/or placement, upgrading, periodic advancement, promotion, demotion, transfer, layoff, termination, right of return from layoff, and rehiring; 3. Rotation among work processes; 4. Imposition of penalties or other disciplinary action; 5. Rates of pay or any other form of compensation and changes in compensation; 6. Conditions of work; 7. Hours of work and hours of training provided; 8. Job assignments; 9. Leaves of absence, sick leave, or any other leave; and 10. Any other benefit, term, condition or privilege associated with apprenticeship.
2. Discrimination standards and defenses . 1. Race, color, religion, national origin, sex or sexual orientation . In implementing this part, the Maine Apprenticeship Program will look to the legal standards and defenses applied under title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et. seq. and Executive Order 11246. 2. Disability . With respect to discrimination based on a disability the Maine Apprenticeship Program will apply the same standards, defenses, and exceptions to the definition of disability as those set forth in title I of the ADA, 42 U.S.C. 12112 and 12113, as amended, and the implementing regulations promulgated by the EEOC at 29 CFRR 1630, which include the standards governing reasonable accommodation, medical examinations and disability-related inquires, qualification standards, and direct threat defense. The Interpretive Guidance on title I of the ADA set out as an appendix to part 1630 issued pursuant to title I may be relied upon for guidance in complying with the nondiscrimination requirements of this Chapter with respect to the treatment of individuals with disabilities. 3. Age . The Maine Apprenticeship Program will apply the same standards and defenses for age discrimination as those set forth in the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 623, and the implementing regulations promulgated by the EEOC at 29 CFR part 1625. 4. Genetic Information . The Maine Apprenticeship Program will apply the same standards and defenses for discrimination based on genetic information as those set forth in the Genetic Information Nondiscrimination Act (GINA), 29 U.S.C. 2000ff et. seq. and the implementing regulations promulgated by the EEOC at 29 CFR 1635.

General duty to engage in affirmative action . For each registered apprenticeship program, a sponsor is required to take affirmative steps to provide equal opportunity in apprenticeship. These steps must include:

1. Assignment of responsibility . The sponsor will designate an individual or individuals with appropriate authority under the program, such as an apprenticeship coordinator, to be responsible and accountable for overseeing its commitment to equal opportunity in registered apprenticeship, including the development and implementation of an affirmative action program as required by this Chapter. The individual(s) must have the resources, support of, and access to, the sponsor leadership to ensure effective implementation. The individual(s) will be responsible for: 1. Monitoring all registered apprenticeship activity to ensure compliance with the nondiscrimination and affirmative action obligations required by this Chapter; 2. Maintaining records required under this Chapter; 3. Generating and submitting reports as may be required under the Maine Apprenticeship Program.
2. Internal dissemination of equal opportunity policy . The sponsor must inform all applicants for apprenticeship, apprentices, and individuals connected with the administration or operation of the registered apprenticeship program, of its commitment to equal opportunity and its affirmative action obligations. In addition, the sponsor must require that individuals connected with the administration or operation of the apprenticeship program take the necessary action to aid the sponsor in meeting its nondiscrimination and affirmative action obligations under this part. A sponsor, at a minimum, is required to: 1. Publish its equal opportunity pledge - set forth in this Chapter - in the apprenticeship standards and in appropriate publications, such as apprentice and employee handbooks, policy manuals, newsletters, or other documents disseminated by the sponsor or that otherwise describe the nature of the sponsorship; 2. Post its equal opportunity pledge on bulletin boards, including through electronic media, such that it is accessible to all apprentices and applicants for apprenticeship 3. Conduct orientation and periodic information sessions for individuals connected with the administration or operation of the apprenticeship program, including all apprentices and journeyworkers who regularly work with apprentices, to inform and remind such individuals of the sponsor's equal employment opportunity policy regarding apprenticeship, and to provide the training required by this Chapter; and 4. Maintain records necessary to demonstrate compliance with these requirements and make them available to the Maine Apprenticeship Program upon request.
3. Universal outreach and recruitment. The sponsor will implement measures to ensure that its outreach and recruitment efforts for apprentices extend to all persons available for apprenticeship within the sponsor's relevant recruitment area without regard to race, sex, ethnicity, or disability. In furtherance of this requirement, the sponsor must: 1. Develop and update annually a list of current recruitment sources that will generate referrals from all demographic groups within the relevant recruitment area. Examples of relevant recruitment sources include: the Maine JobLink; one-stop CareerCenters; local workforce boards; community-based organizations; community colleges; vocational, career and technical schools; pre-apprenticeship programs; and youth job-training programs such as YouthBuild and Job Corps or their successors. 2. Identify a contact person, mailing address, telephone number, and email address for each recruitment source; and 3. Provide recruitment sources with appropriate advanced notice of apprenticeship openings so that the recruitment sources can notify and refer candidates. Such notification must also include documentation of the sponsor's equal opportunity pledge specified in this Chapter.
4. Maintaining apprenticeship programs free from harassment, intimidation, and retaliation. The sponsor must develop and implement procedures to ensure that its apprentices are not harassed because of their race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, or disability and to ensure that its apprenticeship program is free from intimidation and retaliation as prohibited by section 2.17 of this Chapter. To promote an environment in which all apprentices feel safe, welcomed, and treated fairly, the sponsor must ensure the following steps are taken: 1. Providing anti-harassment training to all individuals connected with the administration or operation of the apprenticeship program, including all apprentices and journeyworkers who regularly work with apprentices. This training must not be a mere transmittal of information, but must include participation by trainees, such as attending a training session in person or completing an interactive training online. The training content must include, at a minimum, communication of the following: 1. That harassing conduct will not be tolerated; 2. The definition of harassment and the types of conduct that constitute unlawful harassment on the basis of race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, and disability; and 3. The right to file a harassment complaint as identified in this Chapter. 2. Making all facilities and apprenticeship activities available without regard to race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, or disability except that if the sponsor provides restrooms or changing facilities, the sponsor must provide separate or single-user restrooms and changing facilities to assure privacy between the sexes; 3. Establishing and implementing procedures for handling and resolving complaints about harassment and intimidation based on race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, and disability, as well as complaints about retaliation for engaging in protected activity described in this Chapter.
5. Compliance with Federal and State equal employment opportunity laws. The sponsor must comply with all other applicable Federal and State laws and regulations that require equal employment opportunity without regard to race, color, religion, national origin, sex (including pregnancy and gender identity, as applicable), sexual orientation, age (40 or older), genetic information, or disability. Failure to comply with such laws pertaining to the equal employment opportunity of apprentices and/or graduates of such apprenticeship programs under this Chapter is grounds for deregistration or the imposition of other enforcement actions.

Equal opportunity pledge .

1. EO Pledge Each sponsor of an apprenticeship program must include in its Standards of Apprenticeship and apprenticeship opportunity announcements the following equal opportunity pledge:

[Name of sponsor] will not discriminate against apprenticeship applicants or apprentices based on race, color, religion, national origin, sex (including pregnancy and gender identity), sexual orientation, genetic information, or because they are an individual with a disability or a person 40 years old or older. [Name of sponsor] will take affirmative action to provide equal opportunity in apprenticeship and will operate the apprenticeship program as required under Title 29 of the Code of Federal Regulations, part 30.

1. The nondiscrimination bases listed in this pledge may be broadened to conform to consistent State and local requirements. Sponsors may include additional protected bases but may not exclude any of the bases protected by this part.

Compliance .

1. Current sponsors: A sponsor that has a registered apprenticeship program as of the effective date of this rule must comply with all obligations of this section within 180 days of the effective date of this rule.
2. New sponsors: A sponsor registering with a Registration Agency after the effective date of this rule shall comply with all obligations of this section upon registration or 180 days after the effective date of this rule, whichever is later.
3. Affirmative action program

Definition and Purpose

1. An affirmative action program is designed to ensure equal opportunity and prevent discrimination in apprenticeship programs. An affirmative action program is more than mere passive nondiscrimination. Such a program requires the sponsor to take affirmative steps to encourage and promote equal opportunity, to create an environment free from discrimination, and to address any barriers to equal opportunity in apprenticeship. An affirmative action program is more than a paperwork exercise. It includes those policies, practices, and procedures, including self-analyses, that the sponsor implements to ensure that all qualified applicants and apprentices are receiving an equal opportunity for recruitment, selection, advancement, retention and every other term and privilege associated with apprenticeship. An affirmative action program should be a part of the way the sponsor regularly conducts its apprenticeship program.
2. A central premise underlying affirmative action is that, absent discrimination, over time a sponsor's apprenticeship program, generally, will reflect the sex, race, ethnicity, and disability profile of the labor pools from which the sponsor recruits and selects. Consistent with this premise, affirmative action programs contain a diagnostic component which includes quantitative analyses designed to evaluate the composition of the sponsor's apprenticeship program and compare it to the composition of the relevant labor pools. If women, individuals with disabilities, or individuals from a particular minority group, for example, are not being admitted into apprenticeship at a rate to be expected given their availability in the relevant labor pool, the sponsor's affirmative action program must include specific, practical steps designed to address any barriers to equal opportunity that may be contributing to this underutilization.
3. Effective affirmative action programs include internal auditing and reporting systems as a means of measuring the sponsor's progress toward achieving an apprenticeship program that would be expected absent discrimination.
4. An affirmative action program also ensures equal opportunity in apprenticeship by incorporating the sponsor's commitment to equality in every aspect of the apprenticeship program. Therefore, as part of its affirmative action program, a sponsor must monitor and examine its employment practices, policies and decisions and evaluate the impact such practices, policies and decisions have on the recruitment, selection and advancement of apprentices. It must evaluate the impact of its employment and personnel policies on minorities, women, and persons with disabilities, and revise such policies accordingly where such policies or practices are found to create a barrier to equal opportunity.
5. The commitments contained in an affirmative action program are not intended and must not be used to discriminate against any qualified applicant or apprentice on the basis of race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, or disability.

Adoption of affirmative action programs . Sponsors, other than those identified in paragraph (d) of this section, must develop and maintain an affirmative action program, setting forth that program in a written plan. The components of the written plan, as detailed in this Chapter, must be developed in accordance with the respective compliance dates and made available to the Maine Apprenticeship Program any time thereafter upon request.

Contents of affirmative action programs . An affirmative action program must include the following components in addition to those required of all sponsors as identified in section 2.3 of this Chapter:

1. Utilization analysis for race, sex, and ethnicity, as described in section 2.5;
2. Establishment of utilization goals for race, sex, and ethnicity, as described in section 2.6;
3. Utilization goals for individuals with disabilities, as described in section 2.7;
4. Targeted outreach, recruitment, and retention, as described in section 2.8;
5. Review of personnel processes, as described in section 2.9; and
6. Invitations to self-identify, as described in section 2.11 of this Chapter.

Exemptions —

1. Programs with fewer than five apprentices. A sponsor is exempt from the requirements of paragraphs (b) and (c) of this section if the sponsor's apprenticeship program has fewer than five apprentices registered, unless such program was adopted to circumvent the requirements of this section.
2. Programs subject to approved equal employment opportunity programs. A sponsor is exempt from the requirements of paragraphs (b) and (c) of this section if the sponsor both submits to the Maine Apprenticeship Program satisfactory evidence that it is in compliance with an equal employment opportunity program providing for affirmative action in apprenticeship, including the use of goals for any underrepresented group or groups of individuals, which has been approved as meeting the requirements of either title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e et seq. ) and agrees to extend such program to include individuals with disabilities, or if the sponsor submits to the Maine Apprenticeship Program satisfactory evidence that it is in compliance with an equal employment opportunity program providing for affirmative action in apprenticeship, including the use of goals for any underrepresented group or groups of individuals, which has been approved as meeting the requirements of both Federal Executive Order 11246, as amended, and section 503 of the Rehabilitation Act, as amended (29 U.S.C. 793), and their implementing regulations at title 41 of the Code of Federal Regulations, Chapter 60: Provided, that programs approved, modified or renewed subsequent to the effective date of this amendment will qualify for this exception only if the goals for any underrepresented group for the selection of apprentices provided for in such programs are likely to be equal to or greater than the goals required under this part.

Written affirmative action plans . Sponsors required to undertake an affirmative action program must create and update a written document memorializing and discussing the contents of the program set forth in paragraph (c) of this section.

1. Compliance 1. Apprenticeship programs existing as of the date this Chapter is effective. The initial written affirmative action plan for existing sponsors must come into compliance within 180 days of the effective date of this plan or within two years of registration, whichever is later. The written affirmative action plan for such programs must be updated every time the sponsor completes workforce analyses required by sections 2.5(b) and 2.7(d)(2). 2. Apprenticeship programs registered after the effective date of this chapter. The initial written affirmative action plan for such programs must be completed within two years of registration. The written affirmative action plan for such programs must be updated every time the sponsor completes workforce analyses required by sections 2.5(b) and 2.7(d)(2) of this Chapter.
2. Utilization analysis for race, sex, and ethnicity.

Purpose. The purpose of the utilization analysis is to provide sponsors with a method for assessing whether possible barriers to apprenticeship exist for particular groups of individuals by determining whether the race, sex, and ethnicity of apprentices in a sponsor's apprenticeship program is reflective of persons available for apprenticeship by race, sex, and ethnicity in the relevant recruitment area. Where significant disparity exists between availability and representation, the sponsor will be required to establish a utilization goal pursuant to section 2.6 of this Chapter.

Analysis of apprenticeship program workforce

1. Process. Sponsors must analyze the race, sex, and ethnic composition of their apprentice workforce. This is a two-step process. First, each sponsor must group all apprentices in its registered apprenticeship program by occupational title. Next, for each occupation represented, the sponsor must identify the race, sex, and ethnicity of its apprentices within that occupation.
2. Schedule of analyses. Each sponsor is required to conduct an apprenticeship program workforce analysis at each compliance review, and again if and when three years have passed without a compliance review. This updated workforce analysis should be compared to the utilization goal established at the sponsor's most recent compliance review to determine if the sponsor is underutilized, according to the process in paragraph (d) of this section.
3. Compliance date 1. Sponsors registered with the Maine Apprenticeship Program as of the date this Chapter is effective must conduct their first workforce analysis, pursuant to this section, within 180 days of the effective date of this plan or within two years of registration, whichever is later. 2. New sponsors: A sponsor registering with the Maine Apprenticeship Program after the effective date of this Chapter must conduct its initial workforce analysis pursuant to this section no later than two years after the date of registration.

Availability analysis –

1. The purpose of the availability analysis is to establish a benchmark against which the demographic composition of the sponsor's apprenticeship program can be compared in order to determine whether barriers to equal opportunity may exist with regard to the sponsor's apprenticeship program.
2. Availability is an estimate of the number of qualified individuals available for apprenticeship by race, sex, and ethnicity expressed as a percentage of all qualified persons available for apprenticeship in the sponsor's relevant recruitment area.
3. In determining availability, the following factors must be considered for each major occupation group represented in the sponsor's registered apprenticeship program standards 1. The percentage of individuals who are eligible for enrollment in the apprenticeship program. within the sponsor's relevant recruitment area broken down by race, sex, and ethnicity; and 2. The percentage of the sponsor's employees who are eligible for enrollment in the apprenticeship program broken down by race, sex, and ethnicity.
4. In determining availability, the relevant recruitment area is defined as the geographical area from which the sponsor usually seeks or reasonably could seek apprentices. The sponsor must identify the relevant recruitment area in its written affirmative action plan. The sponsor may not draw its relevant recruitment area in such a way as to have the effect of excluding individuals based on race, sex, or ethnicity from consideration, and must develop a brief rationale for selection of that recruitment area.
5. Availability will be derived from the most current and discrete statistical information available. Examples of such information include census data, data from local job service offices, and data from colleges or other training institutions.
6. Sponsors, working with the Maine Apprenticeship Program, will conduct availability analyses at each compliance review.

Rate of utilization. To determine the rate of utilization, the sponsor, working with the Maine Apprenticeship Program, must group each occupational title in its apprenticeship workforce by major occupation group and compare the racial, sex, and ethnic representation within each major occupation group to the racial, sex, and ethnic representation available in the relevant recruitment area, as determined in paragraph (c) of this section. When the sponsor's utilization of women, Hispanics or Latinos, or a particular racial minority group is significantly less than would be reasonably expected given the availability of such individuals for apprenticeship, the sponsor must establish a utilization goal for the affected group in accordance with the procedures set forth in section 2.6. Sponsors are not required or expected to establish goals where no significant disparity in utilization rates has been found.

1. Establishment of utilization goals for race, sex, and ethnicity

Where, pursuant to section 2.5, a sponsor is required to establish a utilization goal for a particular racial, sex, or ethnic group in a major occupation group in its apprenticeship program, the sponsor, working with Maine Apprenticeship Program, must establish a percentage goal at least equal to the availability figure derived under section 2.5(c) for that major occupation group.

A sponsor's determination under section 2.5 that a utilization goal is required constitutes neither a finding nor an admission of discrimination.

Utilization goals serve as objectives or targets reasonably attainable by means of applying every good faith effort to make all aspects of the entire affirmative action program work. Utilization goals are used to measure the effectiveness of the sponsor's outreach, recruitment, and retention efforts.

In establishing utilization goals, the following principles apply:

1. Utilization goals may not be rigid and inflexible quotas, which must be met, nor are they to be considered either a ceiling or a floor for the selection of particular groups as apprentices. Quotas are expressly forbidden.
2. Utilization goals may not provide a sponsor with a justification to extend a preference to any individual, select an individual, or adversely affect an individual's status as an apprentice, on the basis of that person's race, sex, or ethnicity.
3. Utilization goals do not create set-asides for specific groups, nor are they intended to achieve proportional representation or equal results.
4. Utilization goals may not be used to supersede eligibility requirements for apprenticeship. Affirmative action programs prescribed by the regulations of this part do not require sponsors to select a person who lacks qualifications to participate in the apprenticeship program successfully, or select a less-qualified person in preference to a more qualified one.
5. Utilization goals for individuals with disabilities

Utilization goal . The U.S.D.O.L. Administrator of the Office of Apprenticeship (OA) has established a utilization goal of 7 percent for employment of qualified individuals with disabilities as apprentices for each major occupation group within which the sponsor has an apprenticeship program.

Purpose . The purpose of the utilization goal established in paragraph (a) of this section is to establish a benchmark against which the sponsor must measure the representation of individuals with disabilities in the sponsor's apprentice workforce by major occupation group. The goal serves as an equal opportunity objective that should be attainable by complying with all the affirmative action requirements of this Chapter.

Periodic review of goal . The OA will periodically review and update, as appropriate, the utilization goal established in paragraph (a) of this section.

Utilization analysis

1. Purpose. The utilization analysis is designed to evaluate the representation of individuals with disabilities in the sponsor's apprentice workforce grouped by major occupation group. If individuals with disabilities are represented in the sponsor's apprentice workforce in any given major occupation group at a rate less than the utilization goal, the sponsor must take specific measures outlined in paragraphs (e) and (f) of this section.
2. Apprentice workforce analysis 1. Process. Sponsors are required to analyze the representation of individuals with disabilities within their apprentice workforce by occupation. This is a two-step process. First, as required in section 2.5, each sponsor must group all apprentices in its registered apprenticeship program according to the occupational titles represented in its registered apprenticeship program. Next, for each occupation represented, the sponsor must identify the number of apprentices with disabilities. 2. Schedule of evaluation. The sponsor must conduct its apprentice workforce analysis at each compliance review, and again if and when three years have passed without a compliance review. This updated workforce analysis, grouped according to major occupation group, should then be compared to the utilization goal established under paragraph (a) of this section. 3. Compliance date. 1. Sponsors registered with the Maine Apprenticeship Program as of the date this Chapter is effective must conduct their first workforce analysis, pursuant to this section, within 180 days of the effective date of this plan or within two years of registration, whichever is later. 2. New sponsors registering with the Maine Apprenticeship Program must conduct their initial workforce analysis pursuant to this section no later than two years after the date of registration.

Identification of problem areas . When the sponsor, working with the Registration Agency, determines that the percentage of individuals with disabilities in one or more major occupation groups within which a sponsor has apprentices is less than the utilization goal established in paragraph (a) of this section, the sponsor must take steps to determine whether and/or where impediments to equal opportunity exist. When making this determination, the sponsor must look at the results of its assessment of personnel processes required by section 2.9 and the effectiveness of its outreach and recruitment efforts required by section 2.8 of this part, if applicable.

Action-oriented programs . The sponsor must undertake action-oriented programs, including targeted outreach, recruitment, and retention activities identified in section 2.8, designed to correct any problem areas that the sponsor identified pursuant to its review of personnel processes and outreach and recruitment efforts.

Utilization goal relation to discrimination . A determination that the sponsor has not attained the utilization goal established in paragraph (a) of this section in one or more major occupation groups does not constitute either a finding or admission of discrimination in violation of this part.

Utilization goal not a quota or ceiling . The utilization goal established in paragraph (a) of this section must not be used as a quota or ceiling that limits or restricts the employment of individuals with disabilities as apprentices.

1. Targeted outreach, recruitment, and retention.

Minimum activities required. Where a sponsor has found underutilization and established a utilization goal for a specific group or groups pursuant to section 2.6 and/or where a sponsor has determined pursuant to section 2.7(f) that there are problem areas resulting in impediments to equal employment opportunity, the sponsor must undertake targeted outreach, recruitment, and retention activities that are likely to generate an increase in applications for apprenticeship and improve retention of apprentices from the targeted group or groups and/or from individuals with disabilities, as appropriate. In furtherance of this requirement, the sponsor must:

1. Set forth in its written affirmative action plan the specific targeted outreach, recruitment, and retention activities it plans to take for the upcoming program year. Such activities must include at a minimum: 1. Dissemination of information to organizations serving the underutilized group regarding the nature of apprenticeship, requirements for selection for apprenticeship, availability of apprenticeship opportunities, and the equal opportunity pledge of the sponsor. These organizations may include: Community-based organizations; local high schools; local community colleges; local vocational, career and technical schools; and local workforce system partners including one-stop CareerCenters; 2. Advertising openings for apprenticeship opportunities by publishing advertisements in appropriate media which have wide circulation in the relevant recruitment areas; 3. Cooperation with local school boards and vocational education systems to develop and/or establish relationships with pre-apprenticeship programs targeting students from the underutilized group to prepare them to meet the standards and criteria required to qualify for entry into apprenticeship programs; and 4. Establishment of linkage agreements or partnerships enlisting the assistance and support of pre-apprenticeship programs, community-based organizations, advocacy organizations, or other appropriate organizations, in recruiting qualified individuals for apprenticeship;
2. Evaluate and document after every selection cycle for registering apprentices the overall effectiveness of such activities;
3. Refine its targeted outreach, recruitment, and retention activities as needed; and
4. Maintain records of its targeted outreach, recruitment, and retention activities and records related to its evaluation of these activities.

Other activities. In addition to the activities set forth in paragraph (a) of this section, as a matter of best practice, sponsors are encouraged but not required to consider other outreach, recruitment, and retention activities that may assist sponsors in addressing any barriers to equal opportunity in apprenticeship. Such activities include but are not limited to:

1. Enlisting the use of journeyworkers from the underutilized group or groups to assist in the implementation of the sponsor's affirmative action program;
2. Enlisting the use of journeyworkers from the underutilized group or groups to mentor apprentices and to assist with the sponsor's targeted outreach and recruitment activities; and
3. Conducting exit interviews of each apprentice who leaves the sponsor's apprenticeship program prior to receiving a certificate of completion to understand better why the apprentice is leaving the program and to help shape the sponsor's retention activities.
4. Review of personnel processes.

As part of its affirmative action program, the sponsor must, for each registered apprenticeship program, engage in an annual review of its personnel processes related to the administration of the apprenticeship program to ensure that the sponsor is operating an apprenticeship program free from discrimination based on race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, and disability. This annual review is required regardless of whether the sponsor is underutilized as described in section 2.5(d). The review must be a careful, thorough, and systematic one and include review of all aspects of the apprenticeship program at the program, industry and occupation level, including, but not limited to, the qualifications for apprenticeship, application and selection procedures, wages, outreach and recruitment activities, advancement opportunities, promotions, work assignments, job performance, rotations among all work processes of the occupation, disciplinary actions, handling of requests for reasonable accommodations, and the program's accessibility to individuals with disabilities (including to the use of information and communication technology). The sponsor must make any necessary modifications to its program to ensure that its obligations under this part are met.

1. Compliance date 1. Current sponsors with a registered apprenticeship program as of the effective date of this Chapter must comply with the obligations of paragraph (a) of this section within 180 days of the effective date of this plan or within two years of registration, whichever is later. 2. New sponsors registering with the Maine Apprenticeship Program after the effective date of this Chapter shall comply with the obligations of paragraph (a) of this section within two years after the date of registration.

The sponsor must include a description of its review in its written affirmative action plan and identify in the written plan any modifications made or to be made to the program as a result of its review.

1. Selection of Apprentices

A sponsor's procedures for selection of apprentices must be included in the written plan for Standards of Apprenticeship submitted to and approved by the Maine Apprenticeship Program, as required under MRS Title 26 §3203.

Sponsors may utilize any method or combination of methods for selection of apprentices, provided that the selection method(s) used meets the following requirements:

1. The use of the selection procedure(s) must comply with the Uniform Guidelines on Employee Selection Procedures (UGESP) (41 CFR part 60-3), including the requirements to evaluate the impact of the selection procedure on race, sex, and ethnic groups (Hispanic or Latino/non-Hispanic or Latino) and to demonstrate job-relatedness and business necessity for those procedures that result in adverse impact in accordance with the requirements of UGESP.
2. The selection procedure(s) must be uniformly and consistently applied to all applicants and apprentices within each selection procedure utilized.
3. The selection procedure(s) must comply with title I of the ADA and EEOC's implementing regulations at part 1630. This procedure(s) must not screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, on the basis of disability, unless the standard, test or other selection criteria, as used by the program sponsor, is shown to be job-related for the position in question and is consistent with business necessity.
4. The selection procedure(s) must be facially neutral in terms of race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, and disability.
5. Invitation to self-identify as an individual with a disability.

Pre-Offer.

1. A sponsor adopting an affirmative action program pursuant to section 2.4 must invite applicants for apprenticeship to inform the sponsor whether the applicant believes that that he or she is an individual with a disability as defined in 2.2. This invitation must be provided to each applicant when the applicant applies or is considered for apprenticeship. The invitation may be included with the application materials for apprenticeship, but must be separate from the application.
2. The sponsor must invite an applicant to self-identify as required in paragraph (a) of this section using the language and manner prescribed by the Administrator and published on the OA Web site.

Post offer

1. At any time after acceptance into the apprenticeship program, but before the applicant begins his or her apprenticeship, the sponsor must invite the applicant to inform the sponsor whether the applicant believes that he or she is an individual with a disability as defined in section 2.2.
2. The sponsor must invite an applicant to self-identify as required in paragraph (b) of this section using the language and manner prescribed by the Administrator and published on the OA Web site.

Apprentices

1. Within the timeframe specified in paragraph (h) below, the sponsor must make a one-time invitation to each current apprentice to inform the sponsor whether he or she is an individual with a disability as defined in section 2.2. The sponsor must make this invitation using the language and manner prescribed by the OA and available on their Web site.
2. Thereafter, the sponsor must remind apprentices yearly that they may voluntarily update their disability status.

Voluntary self-identification for apprentices . The sponsor may not compel or coerce an individual to self-identify as an individual with a disability.

Confidentiality . The sponsor must keep all information on self-identification confidential, and must maintain it in a data analysis file (rather than the medical files of individual apprentices) as required under section 2.12(e). The sponsor must provide self-identification information to the Maine Apprenticeship Program upon request. Self-identification information may be used only in accordance with this part.

Affirmative action obligations . Nothing in this section may relieve the sponsor of its obligation to take affirmative action with respect to those applicants and apprentices of whose disability the sponsor has knowledge.

Nondiscrimination obligations . Nothing in this section may relieve the sponsor from liability for discrimination in violation of this part.

Compliance dates

1. Sponsors currently registered with the Maine Apprenticeship Program as of the effective date of this Chapter must begin inviting applicants and apprentices to identify as individuals with disabilities, pursuant to this Chapter, within 180 days of the effective date of this plan or within two years of registration, whichever is later. A sponsor must also invite each of its current apprentices to voluntarily inform the sponsor whether the apprentice believes that he or she is an individual with a disability, as defined in section 2.2, within 180 days of the effective date of this plan or within two years of registration, whichever is later.
2. New sponsors: A sponsor registering with the Maine Apprenticeship Program after the effective date of this Chapter must begin inviting applicants and apprentices to identify as individuals with disabilities, pursuant to this section, no later than two years after the date of registration. A sponsor covered by this subparagraph must also invite each of its current apprentices to voluntarily inform the sponsor whether the apprentice believes that he or she is an individual with a disability, as defined in section 2.2, no later than two years after the date of registration.
3. Recordkeeping

General obligation . Each sponsor must collect such data and maintain such records as the Maine Apprenticeship Program finds necessary to determine whether the sponsor has complied or is complying with the requirements of this part. Such records must include, but are not limited to records relating to:

1. Selection for apprenticeship, including applications, tests and test results, interview notes, bases for selection or rejection, and any other records required to be maintained under UGESP;
2. The invitation to self-identify as an individual with a disability;
3. Information relative to the operation of the apprenticeship program, including but not limited to job assignments in all components of the occupation as required under Federal regulations §29.5(b)(3), promotion, demotion, transfer, layoff, termination, rates of pay, other forms of compensation, conditions of work, hours of work, hours of training provided, and any other personnel records relevant to EEO complaints filed with the Maine Apprenticeship Program under section 2.14 of this Chapter, or with other enforcement agencies;
4. Compliance with the requirements of section 2.3 of this Chapter;
5. Requests for reasonable accommodation; and
6. Any other records pertinent to a determination of compliance with these regulations, as may be required by the Maine Apprenticeship Program.

Sponsor identification of record . For any record the sponsor maintains pursuant to this part, the sponsor must be able to identify the race, sex, ethnicity (Hispanic or Latino/non-Hispanic or Latino), and when known, disability status of each apprentice, and where possible, the race, sex, ethnicity, and disability status of each applicant to apprenticeship and supply this information upon request to the Maine Apprenticeship Program.

Affirmative action programs. Each sponsor required under section 2.4 to develop and maintain an affirmative action program must retain both the written affirmative action plan and documentation of its component elements set forth in sections 2.5, 2.6, 2.7, 2.8, 2.9, and 2.11 of this Chapter.

Maintenance of records. The records required by this part and any other information relevant to compliance with these regulations must be maintained for five (5) years from the date of the making of the record or the personnel action involved, whichever occurs later, and must be made available upon request to the Maine Apprenticeship Program in such form as the Maine Apprenticeship Program may determine is necessary to enable it to ascertain whether the sponsor has complied or is complying with this part. Failure to preserve complete and accurate records as required by paragraphs (a), (b), and (c) of this section constitutes noncompliance with this part.

Confidentiality and use of medical information.

1. Any information obtained pursuant to this part regarding the medical condition or history of an applicant or apprentice must be collected and maintained on separate forms and in separate medical files and treated as a confidential medical record, except that: 1. Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the applicant or apprentice and necessary accommodations; 2. First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and 3. Government officials engaged in enforcing this part, the laws administered by OFCCP, or the ADA, must be provided relevant information on request.
2. Information obtained under this part regarding the medical condition or history of any applicant or apprentice may not be used for any purpose inconsistent with this part.

Access to records . Each sponsor must permit access during normal business hours to its places of business for the purpose of conducting on-site EEO compliance reviews and complaint investigations and inspecting and copying such books, accounts, and records, including electronic records, and any other material the Maine Apprenticeship Program deems relevant to the matter under investigation and pertinent to compliance with this Chapter. The sponsor must also provide the Maine Apprenticeship Program access to these materials, including electronic records, off-site for purposes of conducting EEO compliance reviews and complaint investigations. Upon request, the sponsor must provide the Maine Apprenticeship Program information about all format(s), including specific electronic formats, in which its records and other information are available. Information obtained in this manner will be used only in connection with the administration of this Chapter or other applicable EEO laws.

2.13 Equal employment opportunity compliance reviews

Conduct of compliance reviews . The Maine Apprenticeship Program will regularly conduct EEO compliance reviews to determine if the sponsor maintains compliance with this part, and will also conduct EEO compliance reviews when circumstances so warrant. An EEO compliance review may consist of, but is not limited to, comprehensive analyses and evaluations of each aspect of the apprenticeship program through off-site reviews, such as desk audits of records submitted to the Maine Apprenticeship Program, and on-site reviews conducted at the sponsor's establishment that may involve examination of records required under this part; inspection and copying of documents related to recordkeeping requirements of this part; and interviews with employees, apprentices, journeyworkers, supervisors, managers, and hiring officials.

Notification of compliance review findings . Within 45 business days of completing an EEO compliance review, the Maine Apprenticeship Program must present a written Notice of Compliance Review Findings to the sponsor's contact person through registered or certified mail, with return receipt requested. If the compliance review indicates a failure to comply with this part, the Maine Apprenticeship Program will so inform the sponsor in the Notice and will set forth in the Notice the following:

1. The deficiency(ies) identified;
2. How to remedy the deficiency(ies);
3. The timeframe within which the deficiency(ies) must be corrected; and
4. Enforcement actions may be undertaken if compliance is not achieved within the required timeframe.

Compliance.

1. When a sponsor receives a Notice of Compliance Review Findings that indicates a failure to comply with this part, the sponsor must, within 30 business days of notification, either implement a compliance action plan and notify the Maine Apprenticeship Program of that plan or submit a written rebuttal to the Findings. Sponsors may also seek to extend this deadline one time by up to 30 days for good cause shown. If the Registration Agency upholds the Notice after receiving a written response, the sponsor must implement a compliance action plan within 30 days of receiving the notice from the Maine Apprenticeship Program upholding its Findings. The compliance action plan must include, but is not limited to, the following provisions: 1. A specific commitment, in writing, to correct or remediate identified deficiency(ies) and area(s) of noncompliance; 2. The precise actions to be taken for each deficiency identified; 3. The time period within which the cited deficiency(ies) will be remedied and any corrective program changes implemented; and 4. The name of the individual(s) responsible for correcting each deficiency identified.
2. Upon the Maine Apprenticeship Program’s approval of the compliance action plan, the sponsor may be considered in compliance with this part provided that the compliance action plan is implemented

Enforcement actions . Any sponsor that fails to implement its compliance action plan within the specified timeframes may be subject to an enforcement action under section 2.15 of this Chapter.

1. Complaints

Requirements for individuals filing complaints

1. Who may file. Any individual who believes that he or she has been or is being discriminated against on the basis of race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, or disability with regard to apprenticeship, or who believes he or she has been retaliated against as described in section 2.17, may, personally or through an authorized representative, file a written complaint with the Maine Apprenticeship Program with whom the apprenticeship program is registered.
2. Time period for filing a complaint. Generally, a complaint must be filed within 300 days of the alleged discrimination or specified failure to follow the equal opportunity standards. However, for good cause shown, the Maine Apprenticeship Program may extend the filing time. The time period for filing is for the administrative convenience of the Maine Apprenticeship Program and does not create a defense for the respondent.
3. Contents of the complaint. Each complaint must be made in writing and must contain the following information: 1. The complainant's name, address and telephone number, or other means for contacting the complainant; 2. The identity of the respondent (the individual or entity that the complainant alleges is responsible for the discrimination); 3. A short description of the events that the complainant believes were discriminatory, including but not limited to when the events took place, what occurred, and why complainant believes the actions were discriminatory (for example, because of his or her race, color, religion, sex, sexual orientation, national origin, age (40 or older), genetic information, or disability). 4. The complainant's signature or the signature of the complainant's authorized representative.

Requirements of sponsors . Sponsors must provide written notice to all applicants for apprenticeship and all apprentices of their right to file a discrimination complaint and the procedures for doing so. The notice must include the address, phone number, and other contact information for the Maine Apprenticeship Program that will receive and investigate complaints filed under this part. The notice must be provided in the application for apprenticeship and must also be displayed in a prominent, publicly available location where all apprentices will see the notice. The notice must contain the following specific wording:

Your Right to Equal Opportunity

It is against the law for a sponsor of an apprenticeship program registered for Federal purposes to discriminate against an apprenticeship applicant or apprentice based on race, color, religion, national origin, sex, sexual orientation, age (40 years or older), genetic information, or disability. The sponsor must ensure equal opportunity with regard to all terms, conditions, and privileges associated with apprenticeship. If you think that you have been subjected to discrimination, you may file a complaint within 300 days from the date of the alleged discrimination or failure to follow the equal opportunity standards, with the Maine Apprenticeship Program,Director of Apprenticeship, 55 State House Station, Augusta, ME 04333-0055 or if applicable the Maine Human Rights Commission, 51 State House Station, Augusta, ME 04333-0051.

1. Each complaint filed must be made in writing and include the following information: 1. Complainant's name, address and telephone number, or other means for contacting the complainant; 2. The identity of the respondent ( i.e. the name, address, and telephone number of the individual or entity that the complainant alleges is responsible for the discrimination); 3. A short description of the events that the complainant believes were discriminatory, including but not limited to when the events took place, what occurred, and why the complainant believes the actions were discriminatory (for example, because of his/her race, color, religion, sex, sexual orientation, national origin, age (40 or older), genetic information, or disability); 4. The complainant's signature or the signature of the complainant's authorized representative.

Requirements of the Maine Apprenticeship Program

1. Conduct investigations. The investigation of a complaint filed under this part will be undertaken by the Maine Apprenticeship Program and will proceed as expeditiously as possible. In conducting complaint investigations, the Maine Apprenticeship Program must: 1. Provide written notice to the complainant acknowledging receipt of the complaint; 2. Contact the complainant, if the complaint form is incomplete, to obtain full information necessary to initiate an investigation; 3. Initiate an investigation upon receiving a complete complaint; 4. Complete a thorough investigation of the allegations of the complaint and develop a complete case record that must contain, but is not limited to, the name, address, and telephone number of each person interviewed, the interview statements, copies, transcripts, or summaries (where appropriate) of pertinent documents, and a narrative report of the investigation with references to exhibits and other evidence which relate to the alleged violations; and 5. Provide written notification of the Maine Apprenticeship Program’s findings to both the respondent and the complainant.
2. Seek compliance. Where a report of findings from a complaint investigation indicates a violation of the nondiscrimination requirements of this part, the Maine Apprenticeship Program should attempt to resolve the matter quickly at the agency level whenever appropriate. Where a complaint of discrimination cannot be resolved at the agency level to the satisfaction of the complainant, the Maine Apprenticeship Program must refer the complaint to other Federal, State or local EEO agencies, as appropriate.
3. Referrals to other EEO agencies. The Maine Apprenticeship Program, at its discretion, may choose to refer a complaint immediately upon its receipt or any time thereafter to: 1. The EEOC; 2. The United States Attorney General; 3. The Department's OFCCP; or 4. The Maine Human Rights Commission.
4. Enforcement Actions

Where the Maine Apprenticeship Program, as a result of a compliance review, complaint investigation, or other reason, determines that the sponsor is not operating its apprenticeship program in accordance with this part, it must notify the sponsor in writing of the specific violation(s) identified and may:

Offer the sponsor technical assistance to promote compliance with this part.

Suspend the sponsor's right to register new apprentices if the sponsor fails to implement a compliance action plan to correct the specific violation(s) identified within 30 business days from the date the sponsor is so notified of the violation(s), or, if the sponsor submits a written response to the findings of noncompliance, fails to implement a compliance action plan within 30 days of receiving the Maine Apprenticeship Program’s notice upholding its initial noncompliance findings. If the sponsor has not implemented a compliance action plan within 30 business days of notification of suspension, the Maine Apprenticeship Program may institute proceedings to deregister the program in accordance with the deregistration proceedings set forth in MRS Title 26, §3206, or if the Maine Apprenticeship Program does not institute such proceedings within 45 days of the start of the suspension, the suspension is lifted.

Take any other action authorized by law. These other actions may include, but are not limited to:

1. Referral to the EEOC;
2. Referral to the Maine Human Rights Commission; or
3. Referral to the Department's OFCCP.
4. Reinstatement of program registration

An apprenticeship program that has been deregistered pursuant to this Chapter may be reinstated by the Maine Apprenticeship Program upon presentation of adequate evidence that the apprenticeship program is operating in accordance with this Chapter.

1. Intimidation and retaliation prohibited

A participant in an apprenticeship program may not be intimidated, threatened, coerced, retaliated against, or discriminated against because the individual has:

1. Filed a complaint alleging a violation of this part;
2. Opposed a practice prohibited by the provisions of this part or any other Federal or State equal opportunity law;
3. Furnished information to, or assisted or participated in any manner, in any investigation, compliance review, proceeding, or hearing under this part or any Federal or State equal opportunity law; or
4. Otherwise exercised any rights and privileges under the provisions of this part.

Any sponsor that permits such intimidation or retaliation in its apprenticeship program, including by participating employers, and fails to take appropriate steps to prevent such activity will be subject to enforcement action under section 2.15 of this Chapter.

1. Maine Apprenticeship Program as State Apprenticeship Agency

State Plan

1. Unless an extension for good cause is sought and granted by the administrator of the USDOL Office of Apprenticeship Administrator, the Maine Apprenticeship Program submits this Chapter as documentation of its Apprenticeship EEO plan:
2. The Maine apprenticeship Program will seek to obtain the Administrator's written concurrence with any subsequent modifications to this Chapter (EEO plan), as required by 29 CFR 29.13(b)(9).

Recordkeeping requirements . The Maine Apprenticeship Program will keep all records pertaining to program compliance reviews, complaint investigations, and any other records pertinent to a determination of compliance with this part for a period of five years from the date of their creation.

Retention of authority. the Maine Apprenticeship Program understands the Office of Apprenticeship has the full authority to:

1. Conduct compliance reviews of all registered apprenticeship programs;
2. Conduct complaint investigations of any program sponsor to determine whether an apprenticeship program registered for Federal purposes is operating in accordance with this part;
3. Deregister for Federal purposes an apprenticeship program registered with the Maine Apprenticeship Program; and
4. Refer any matter pertaining to paragraph (c)(1) or (2) of this section to the following: 1. The EEOC or the U.S. Attorney General with a recommendation for the institution of an enforcement action under title VII of the Civil Rights Act of 1964, as amended; the ADEA; GINA, or title I of the ADA; 2. The Department's OFCCP with a recommendation for the institution of agency action under Executive Order 11246; or section 503 of the Rehabilitation Act of 1973, as amended; or 3. The U.S. Attorney General for other action as authorized by law.

Derecognition . The Maine Apprenticeship Program agrees that if it fails to comply with the requirements of this section, it will be subject to derecognition proceedings, as provided in 29 CFR 29.14.

1. Exemptions.

Requests for exemption from these regulations, or any part thereof, must be made in writing to the Maine Apprenticeship Program and must contain a statement of reasons supporting the request. Exemptions may be granted for good cause by the Maine Apprenticeship Program. The Maine Apprenticeship Program must receive approval to grant an exemption from the Administrator of the Office of Apprenticeship prior to granting an exemption from these regulations.

1. Effective Date.

This Chapter (EEO Plan) shall be effective the date that the Federal Office of Apprenticeship approves the plan.

History

• STATUTORY AUTHORITY: 26 MRSA §2006
• EFFECTIVE DATE: November 2, 1978
• CONVERTED TO MS WORD: July 9, 2003
• AMENDED: August 1, 2007 – filing 2007-314
• AMENDMENT FILED WITH THE SECRETARY OF STATE: July 19, 2022 – filing 2022-131
• EFFECTIVE DATE: July 22, 2022

Chapter 3 Rules Relating to Labor Standards for Certification of Pre-Apprenticeship Training Programs

Code Me. R. 12-181 Ch. 3 Rules Relating to Labor Standards for Certification of Pre‑apprenticeship Training Programs {#sec-12-181-ch.-3 omnilex-key=us-me-regs-official--dept-labor--12-181 Ch. 3}

SUMMARY: These rules are adopted to establish, define, and provide for the certification and decertification of pre-apprenticeship agreements and Training Programs with the Maine Apprenticeship Program. They contain procedures for holding hearings and give the authority and the effective date.

Sections

1.1 Purpose and Scope

1.2 Definitions

1.3 Procedure for Maine Pre-Apprenticeship Program Certification

1.4 Eligibility and Standards for Maine Pre-Apprenticeship Program Certification

1.5 Criteria for Pre-Apprenticeable Occupations

1.6 Pre-Apprenticeship Agreement

1.7 Decertification of a Certified Pre-Apprenticeship Program

1.8 Hearings

1.9 Advisory Rulings

1.10 Reinstatement of Program Certification

1.11 Complaints

Section 1.1 Purpose and Scope

A. Title 26, Chapter 37, §3202 authorizes and directs the Maine Apprenticeship Program to formulate and promote the labor standards necessary to safeguard the welfare of pre-apprentices by requiring the inclusion of the standards in contracts of pre-apprenticeship.

B. The purpose of this regulation is to set forth labor standards to safeguard the welfare of pre-apprentices, by prescribing rules and regulations concerning the certification of acceptable, high-quality pre-apprenticeship programs. These labor standards, rules and regulations cover the certification, termination, and decertification of pre-apprenticeship programs and of pre-apprenticeship agreements, and matters relating thereto. The Maine Apprenticeship Program shall assist the Department of Education, the State's Community Colleges, and other groups in establishing pre-apprenticeship training programs, and in developing training courses, the successful completion of which will enable a participant to meet the qualifying standards for the registered apprenticeship or apprenticeships for which the participant has expressed a serious interest. All certified pre-apprenticeship training programs are subject to approval by the Maine Apprenticeship Program.

C. The provisions of this regulation shall apply to a person, firm, corporation, or craft only after such person, firm, corporation, or craft has voluntarily elected to conform to these provisions.

Section 1.2 Definitions

As used in this regulation:

“Bureau” means the Bureau of Employment Services within the Department.

"Certification of a Pre-Apprenticeship Program" means the acceptance and recording of such program by the Maine Apprenticeship Program as meeting the basic standards and requirements of the Maine Apprenticeship Program for approval of such program. Approval is evidenced by a certificate of registration or other written indicia.

"Certified Pre-Apprenticeship Training Program" means a program that has been submitted to and approved by the Maine Apprenticeship Program for certification.

“Council” means the Maine Apprenticeship Council established to assist, advise, and guide the Maine Apprenticeship Program in the operation of the State’s registered apprenticeship program.

“Education Provider” means an organization that provides education, either as a main or ancillary objective. This can be a public educational institution as well as a private enterprise, non-governmental organization, joint apprentice training committee or non-educational public body.

“Job shadowing” is the opportunity to observe an employee performing their daily work routine in their work environment. It allows individuals to explore specific careers and to get a realistic picture of the tasks performed for that job. This experience is observational only (no work tasks performed), is time limited, and has no expectation of pay.

“On-the-job learning” means tasks learned on-the-job in which the pre-apprentice must become proficient before a completion certificate is awarded. The learning must be through structured, supervised work experience.

"Pre-Apprentice" means an adult, or minor at least 16 years of age who enters into a written pre-apprenticeship agreement to receive detailed on the job instruction and/or classroom training in a pre-apprenticeable occupation in accordance with this Rule.

“Pre-Apprenticeship Memorandum of Agreement” means an agreement between the Maine Apprenticeship Program and a sponsor, which may also include an education provider and/or a sponsoring employer, that defines the scope and purpose of the certified pre-apprenticeship program and communicates the mutually accepted expectations of the sponsor(s), education provider(s), and/or employer.

"Pre-Apprenticeship Sponsor" means any person, association, committee, or organization operating a registered apprenticeship program and is collaborating with an education provider and/or employer in operation a certified pre-apprenticeship program.

“Program” means the Maine Apprenticeship Program established in 26 M.R.S. § 3209

"Registration of a Pre-Apprentice" means the acceptance and recording thereof by the Maine Apprenticeship Program as evidence of the participation of the pre-apprentice in a particular certified pre-apprenticeship program.

"Related Instruction" means a systematic form of instruction in a high school, Career and Technical Education high school, Community College, or other training program designed to provide the pre-apprentice with knowledge of the theoretical and technical subjects related to his/her trade.

Section 1.3 Procedure for Maine Pre-Apprenticeship Program Certification

The pre-apprenticeship sponsor in collaboration with an education provider, group joint or non-joint apprenticeship training council, intermediary sponsor, sponsor, or a signatory employer shall submit the following to the Maine Apprenticeship Program:

1. A partnership agreement that includes arrangements for facilitated entry of graduates of pre-apprenticeship training program with at least one registered apprenticeship program.

2. A proposed Memorandum of Agreement, on a form provided by the Bureau; that outlines how each partner agrees to support the pre-apprenticeship program and details how the certified pre-apprentices will be prepared to meet/exceed the minimum qualifications and prepares applicants for success in the registered apprenticeship program.

Pre-Apprentices must be individually registered under a certified program. Such registration is considered complete by filing copies of each pre-apprentice registration agreement with the Maine Apprenticeship Program and registering the pre-apprentices in electronic registration systems as required by the Maine Apprenticeship Program. If the pre-apprenticeship sponsor is involved in any abnormal labor condition such as a strike, lockout, or other similar condition, the application for a certified pre-apprenticeship program may be withheld until such issue is resolved.

If it should be determined by the Maine Apprenticeship Program that a pre-apprenticeship sponsor is in violation of any Federal or State Labor laws or rules and regulations affecting registration of programs, including the Fair Labor Standards Act and Title 26, Chapter 7, the application for certification of a pre-apprenticeship program may be withheld until such issues are resolved.

Certified pre-apprenticeship programs shall be accorded certification through a Memorandum of Agreement signed by the pre-Apprenticeship Sponsor, education provider, employer (if any) and the Maine Apprenticeship Program.

Any modification(s) or change(s) to the pre-apprenticeship program shall be promptly submitted to the Maine Apprenticeship Program, and if approved, shall be recorded, and acknowledged as a revision of such program.

During the period of the program, the Maine Apprenticeship Program shall terminate a pre-apprenticeship agreement for just cause at the request in writing of any party thereto.

The services of the Maine Apprenticeship Program may be utilized for consultation regarding the settlement of differences arising out of pre-apprenticeship agreement and where the differences cannot be adjusted locally, or in accordance with the established trade procedure, and any such differences which cannot be amicably settled by the parties may be submitted to the Maine Apprenticeship Program for final decision.

The Memorandum of Agreement will be reviewed periodically by the Maine Apprenticeship Program to evaluate whether the program is following the rules of certified pre-apprenticeship and to measure the effectiveness of the pre-apprenticeship program in preparing individuals for successful entry into registered apprenticeship programs, of the pre-apprentice's progress in job performance and the maintenance of appropriate progress records.

The Maine Apprenticeship Program shall be notified within 45-days of the registration, termination, or suspension of any pre-apprenticeship agreement, with cause for same, and of pre-apprenticeship completions.

Section 1.4 Eligibility and Standards for Maine Pre-Apprenticeship Program Certification

To be eligible for certification as a pre-apprenticeship program, the pre-apprenticeship sponsor must:

Meet the requirements of Sec. 12. 26 M.R.S. §3213.

Conform to the U.S. Department of Labor’s Training and Employment Notice Number 13-12 and to other standards identified by the United States Department of Labor for a quality framework for pre-apprenticeship.

Comply with state and federal law regarding equal employment opportunity in apprenticeship and training. The certified pre-apprenticeship Memorandums of Agreement must include the following statement: [Name of pre-apprenticeship sponsor and education provider] will not discriminate against pre-apprenticeship applicants or pre-apprentices based on race, color, religion, national origin, sex (including pregnancy and gender identity), sexual orientation, genetic information, or because they are an individual with a disability or a person 40 years old or older. [Name of pre-apprenticeship sponsor and education provider] will take affirmative action to provide equal opportunity in pre-apprenticeship.

Include an outreach plan to increase registered apprenticeship opportunities for underrepresented, disadvantaged, or low-skilled individuals and members of historically marginalized communities.

Have a training program and curriculum based on industry standards and approved by the documented Registered Apprenticeship Program(s) and the Maine Apprenticeship Program, upon recommendation by the Maine Apprenticeship Council, that will prepare individuals with the skills and competencies needed to enter one or more registered apprenticeship program(s).

Typically feature a classroom and/or lab setting, but may also involve work-site visits, job-shadowing, on-the job learning or other activities outside the classroom facility, to provide exposure to the work environment for the targeted occupation(s). The model for pre-apprenticeship training varies depending on the targeted group recruited for training.

Include workplace safety training such as OSHA 10 or other comparable safety training determined by industry as standard.

Pre-apprentices shall be not less than sixteen years of age, except for a higher age requirement which the Maine Bureau of Labor Standards has determined applicable in accordance with the federal child labor provisions of the Fair Labor Standards Act and 26 M.R.S. §§ 771-786.

Limit the duration of the pre-apprenticeship program to not more than 6-months, except for programs in secondary educational institutions or prisons which are limited to no more than a span of 2 calendar years.

Section 1.5 Criteria for Pre-Apprenticeable Occupations

A pre-apprenticeable occupation is one which is specified by the industry and possesses all the following characteristics:

A. Is customarily learned in a practical way through a structured systematic program of on-the-job supervised training.

B. It is clearly identified and commonly recognized throughout an industry.

C. It involves manual, mechanical, or technical skills and knowledge which require a minimum number of on-the-job learning hours to attain; and

D. It requires related classroom instruction to enhance and supplement the on-the-job training.

Section 1.6 Pre-Apprenticeship Agreement

A pre-apprentice must enter into a written pre-apprenticeship agreement with the certified pre-apprenticeship sponsor. The pre-apprenticeship agreement shall contain explicitly or by reference:

A. Name and signature of the following: the pre-apprentice, certified pre-apprenticeship sponsor, the signature of a parent or guardian if the pre-apprentice is a minor, and as appropriate, the education provider

B. The date of birth of pre-apprentice.

C. Name and address of the pre-apprenticeship sponsor and certification agency (Maine Apprenticeship Program).

D. A statement of the occupation(s), trade(s) or craft(s) in which the pre-apprentice is to be trained and the beginning date and term of the certified pre-apprenticeship.

F. A statement setting forth a schedule of the work processes including on the job training and/or classroom training in the occupation(s), trade(s) or craft(s) which the pre-apprentice is to be taught and the approximate time to be spent in on the job and classroom training.

G. As applicable, a statement of the wages to be paid the pre-apprentice.

H. Statements providing:

That the agreement may be terminated at the request of the pre-apprentice, or may be suspended, or terminated by the certified pre-apprenticeship sponsor, for good cause, with due notice to the pre-apprentice and a reasonable opportunity for corrective action, and with written notice to the pre-apprentice and to the Maine Apprenticeship Program of the final action taken;

2. That the pre-apprentice will be accorded equal opportunity in all phases of pre-apprenticeship employment and training, without discrimination against pre-apprenticeship applicants or pre-apprentices based on race, color, religion, national origin, sex (including pregnancy and gender identity), sexual orientation, genetic information, or because they are an individual with a disability or a person 40 years old or older.

3. The name and address of the appropriate authority, if any, designated under the program, to receive, process and make disposition of controversies or differences arising out of the pre-apprenticeship agreement; any such controversies and differences which cannot be amicably settled by the parties may be submitted to the Maine Apprenticeship Program for a final decision.

Section 1.7 Decertification of a Certified Pre-Apprenticeship Program

The Maine Apprenticeship Program may decertify a pre-apprenticeship training program upon a finding of reasonable cause or by request of the program. Formal decertification proceedings will be conducted in accordance with the-provisions of this regulation.

A. Request by Memorandum of Agreement Signatory. The Maine Apprenticeship Program may cancel the certification of a pre-apprenticeship program by a written acknowledgment of such request stating, but not limited to, the following:

1. The certification of a pre-apprenticeship training program is canceled at the request of a signatory pre-apprenticeship sponsor and/or education provider who has signed the Memorandum of Agreement, and giving the effective date of such cancellation; and

2. That, within 15 workdays of the date of the acknowledgment, the certified pre-apprenticeship sponsor must notify all pre-apprentices of such cancellation and the effective date; that such cancellation automatically deprives the pre-apprentice of his/her individual registration.

B. Decertification by the Maine Apprenticeship Program

1. Decertification proceedings may be undertaken when the certified pre-apprenticeship program is not conducted, operated, or administered in accordance with the certified pre-apprenticeship Memorandum of Agreement or the requirements of Title 26 Chapter 37 or this regulation.

2. Where it appears the program is not being operated in accordance with the registered standards or with requirements of Title 26 Chapter 37or this regulation, the Maine Apprenticeship Program shall so notify the council and the parties outlined in the Memorandum of Agreement in writing.

3. The notice shall be sent by registered or certified mail to the parties outlined in the Memorandum of Agreement, return receipt requested, shall state the deficiency(s) and remedy(s) required and shall state that the program will be decertified for cause unless the corrective action is taken within 30 days.

4. Upon request by the certified pre-apprenticeship sponsor or education provider, the 30-day period may be extended for up to an additional 30-day period. During the period for correction the certified pre-apprenticeship sponsor and/or education provider may be assisted in every reasonable way by the Maine Apprenticeship Program.

5. If the required action is not taken within the allotted time, the Maine Apprenticeship Program shall send a notice to the certified pre-apprenticeship sponsor and education provider by registered or certified mail, return receipt requested, stating the following:

a. This notice is sent pursuant to this subsection.

b. That certain deficiencies were called to the pre-apprenticeship sponsor's attention and remedial actions requested.

c. Based upon the stated cause, the program will be decertified unless within 15 workdays of receipt of this notice, the pre-apprenticeship sponsor requests a hearing.

d. If a hearing is not requested by the pre-apprenticeship sponsor, the program will be automatically decertified.

6. If the certified pre-apprenticeship sponsor requests a hearing, the Maine Apprenticeship Program shall convene a hearing in accordance with Section 8 of these regulations.

7. In its discretion, the Maine Apprenticeship Program may allow the certified pre-apprenticeship sponsor a reasonable time to achieve voluntary corrective action. If the Maine Apprenticeship Programs decision is that the certified pre-apprenticeship program is not operating in accordance with the pre-apprenticeship certification requirements and the requirements of Title 26 Chapter 37 and this regulation, the certified pre-apprenticeship program shall be decertified. In each case in which decertification is ordered the Maine Apprenticeship Program shall notify the certified pre-apprenticeship sponsor.

8. Every order of decertification shall contain a provision that the pre-apprenticeship sponsor shall, within 15 workdays of the effective date of the order, notify all registered pre-apprentices of the decertification of the program, the effective date, and that such action automatically deprives the pre-apprentice of his/her individual registration.

Section 1.8 Hearings

The Director of the Bureau of Employment Services shall be the Presiding Officer for any hearing in accordance with this Rule.

Notice of hearings to be held by the Bureau Director shall be given as follows:

1. Within 10 working days of receipt of a request for a hearing, notice will be given by registered mail, return receipt requested, to the person or persons whose legal rights, duties or privileges are at issue, sufficiently in advance of the hearing date to afford an adequate opportunity to prepare and submit evidence and argument.

C. All notices of Hearings shall contain the following:

A statement of the legal authority and jurisdiction under which the proceeding is being conducted;

2. A reference to the particular substantive statutory and rule provisions involved;

3. A short and plain statement of the nature and purpose of the proceeding and of the matters asserted;

4. A statement of time and place of hearing;

5. A statement of manner and time within which evidence and argument may be submitted to the Bureau Director for consideration.

D. Disposition without full hearing

1. The Bureau Director may make informal disposition of any adjudicatory proceeding by default when any party fails to appear at the scheduled hearing, provided the notice of the consequences of such failure to appear has been given to said party. Any such default may be set aside by the Bureau Director for good cause shown.

2. The Bureau Director may limit the issues to be heard or vary any procedure prescribed by this rule or the Administrative Procedure Act if the parties agree to such limitation or variation, or if no prejudice to any party will result.

E. Ex Parte Communications: Separation of Functions

1. In any adjudicatory proceeding, the Bureau Director shall not communicate directly or indirectly, in connection with any issue of fact, law or procedure, with any person, except upon notice and opportunity for all parties to participate.

2. This section shall not prohibit the Bureau Director from having the aid or advice of those members of their own staff, the Council, legal counsel or consultants who have not participated and will not participate in the proceeding in an advocate capacity.

F. Opportunity to be Heard

1. The opportunity for hearing shall be afforded without undue delay.

G. Evidence

1. The Bureau Director need not observe the rules of evidence observed by the courts but shall observe the rules of privilege recognized by law.

2. Evidence shall be submitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The Bureau Director may exclude irrelevant or unduly repetitious evidence.

3. All witnesses shall be sworn.

4. Subject to these requirements, the Bureau Director may, for the purposes of expediting adjudicatory proceedings, require the prefiling of all or part of the testimony of any witness in written form. Every such witness shall be subject to oral cross examination.

5. No sworn written evidence shall be admitted unless the author is available for cross examination or subject to subpoena, except for good cause shown.

H. Official Notice

1. The Bureau Director may take official notice of any facts of which judicial notice could be taken, and in addition may take official notice of general, technical or scientific matters within their specialized knowledge and of statutes, regulations and nonconfidential agency records. Parties shall be notified of the material so noticed, and they shall be afforded an opportunity to contest the substance or materiality of the facts noticed.

2. Facts officially noticed shall be included and indicated as such in the record.

3. Notwithstanding the foregoing, the Bureau Director may utilize their experience, technical competency, and specialized knowledge in the evaluation of the evidence presented to them.

I. Record

1. In all adjudicatory proceedings the Bureau Director shall make a record consisting of the following:

a. All applications, pleadings, motions, preliminary and interlocutory rules and orders;

b. Evidence received or considered;

c. A statement of facts officially noticed;

d. Offers of proof, objections and rulings thereon;

e. Proposed findings and exceptions, if any;

f. The recommended decision, opinion or report, if any, by the presiding officer; and

g. The decision of the Bureau Director

2. The Bureau Director shall record all hearings in a form susceptible to transcription. Portions of the record as required and specified in subsection 1 of this rule may be included in the recording. The Bureau Director shall transcribe the recording when necessary for the prosecution of an appeal.

3. The Bureau Director shall make a copy of the record, including recordings made pursuant to subsection 2 of this rule, available at the office of the Maine Department of Labor, for inspection by any person during normal business hours; and make copies of the recordings or transcriptions or recordings available to any person at actual cost. Notwithstanding the provisions of this subsection, the Bureau Director shall withhold, obliterate, or otherwise prevent the dissemination of any portions of the record which are made confidential by State or Federal statute, but shall do so in the least restrictive manner feasible.

4. All material, including record, reports, and documents in possession of the Bureau Director, of which it desires to avail itself as evidence in decision making, shall be offered, and made part of the record and no other factual information, or evidence, shall be considered in rendering a decision.

5. Documentary evidence may be incorporated in the record by reference when materials so incorporated are made available for examination by the parties before being received in evidence.

J. Subpoenas

1. Pursuant to 5 M.R.S. §9060, the Bureau Director may issue a subpoena if the approval of the Attorney General or of any deputy attorney general is obtained prior to issuance. Any party to the proceeding may request that a subpoena be issued.

2. Authorized subpoenas shall be issued in accordance with the following:

a. The form of the subpoena shall adhere, insofar as practicable to the form used in civil cases before the courts. Witnesses shall be subpoenaed only within the territorial limits and in the same manner as witnesses in civil cases before the courts, unless another territory or manner is provided by law.

b. The subpoena shall show on its face the name and address of the party at whose request it was issued.

c. Any witness subpoenaed may petition the Bureau Director to vacate or modify a subpoena in its name. The Bureau Director shall give prompt notice to the party who requested issuance of the subpoena.

After such investigation as the agency considers appropriate, it may grant the petition in whole or in part upon a finding that the testimony or the evidence whose production is required does not relate with reasonable directness to any matter in question, or that a subpoena for the attendance of a witness or the production of evidence is unreasonable or oppressive or has not been issued a reasonable period in advance of the time when the evidence is requested.

d. Pursuant to 5 MRSA Section 9060(l)(D) failure to comply with a subpoena lawfully issued and not revoked or modified shall be punishable by a fine of not less than $500 and not more than $5,000 or by imprisonment not to exceed 30 days, or both.

K. Decisions

1. Every decision made at the conclusion of an adjudicatory proceeding shall be in writing or stated in the record and shall include findings of fact sufficient to apprise the parties and any interested member of the public of the basis for the decision. A copy of the decision shall be delivered or promptly mailed to each party to the proceeding or his representative of record. Written notice of the party's rights to review or appeal of the decision within the agency or review of the decision by the courts, as the case may be, and of the action required and the time within which such action must be taken in order to exercise the right of review or appeal, shall be given to each party with the decision.

Section 1.9 Advisory Rulings

Advisory rulings may be made with respect to the applicability of any statute or rule administered by the Maine Apprenticeship Program to an interested person or their property or actual state of facts.

An interested person means any pre-apprentice or certified pre-apprenticeship sponsor over whom the Maine Apprenticeship Program has authority to inspect and enforce its safety standards.

All requests for advisory rulings shall be made in writing and submitted to the Director of Apprenticeship, Bureau of Employment Services, State House Station #55, Augusta, ME 04333-0055. Such requests shall state the facts and statutes or rules on which the ruling is requested.

The Director of Apprenticeship may request from any person seeking an advisory ruling any additional information that is necessary. Failure to supply such additional information shall be cause for the Director of Apprenticeship to decline to issue an advisory ruling.

The Director of Apprenticeship may decline to issue an advisory ruling if a citation or penalty has been issued against the person requesting the ruling on the same factual grounds. The Director of Apprenticeship may also decline to issue an advisory ruling if such ruling may harm the Bureau of Employment Services or the Department of Labor’s interest in any litigation in which it is or may be a party.

All advisory rulings shall be issued, in writing no later than 30 days from the date all information necessary to make a ruling has been received by the Director of Apprenticeship.

No advisory ruling shall be binding upon the Director of Apprenticeship, Bureau Director or the Maine Department of Labor provided that in any subsequent enforcement action initiated by the Director of Apprenticeship, any person's reliance on such a ruling shall be considered in mitigation of any penalty sought to be assessed.

Section 1.10 Reinstatement of Program Certification

Any certified pre-apprenticeship program decertified pursuant to Chapter 37 and this regulation, may be reinstated upon presentation of adequate evidence that the pre-apprenticeship program is operating in accordance with Chapter 37 and this regulation. Such evidence shall be presented to the Maine Apprenticeship Program, if an order of deregistration was entered pursuant to a hearing.

Section 1.11 Complaints

A. This section is not applicable to any complaint concerning discrimination or other equal opportunity matters; all such complaints shall be submitted, processed, and resolved in accordance with State or Federal Equal Opportunity Laws.

B. Any controversy or differences arising under a pre-apprenticeship agreement which cannot be resolved locally, or which is not covered by a collective bargaining agreement, may be submitted by a pre-apprentice or his/her authorized representative to the Director of Apprenticeship for review. Matters covered by a collective bargaining agreement are not subject to such review.

C. The complaint, in writing, and signed by the complainant, or authorized representative, shall be submitted within 60 days of the final local decision. It shall set forth the specific matter(s) complained of, together with all relevant facts and circumstances. Copies of all pertinent documents and correspondence shall accompany the complaint.

D. The Director of Apprenticeship shall render an opinion within 90 days after receipt of the complaint, based upon such investigation of the matters submitted as may be found necessary, and the record before it. During the 90-day period, the Maine Apprenticeship Program shall make reasonable efforts to affect a satisfactory resolution between the parties involved. If so resolved, the parties shall be notified that the case is closed. Where a decision is rendered, copies of the decision shall be sent to all interested parties which shall be final.

History

• STATUTORY AUTHORITY: 26 MRSA §2006
• EFFECTIVE DATE: October 19, 1992
• CONVERTED TO MS WORD: July 9, 2003
• AMENDED: August 1, 2007 – filing 2007-315
• REPEALED AND REPLACED: May 1, 2023 – 2023-029
• REPEALED AND REPLACED: APAO WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK: July 17, 2025

12-186 State Board of Arbitration and Conciliation

Chapter 1 General Rules of the State Board of Arbitration and Conciliation

Code Me. R. 12-186 Ch. 1 General Rules {#sec-12-186-ch.-1 omnilex-key=us-me-regs-official--dept-labor--12-186 Ch. 1}

SUMMARY: This chapter defines certain terms used throughout the rules of the State Board of Arbitration and Conciliation and contains other rules of general application.

§ 1. Effective Date. The rules of the State Board of Arbitration and Conciliation (Board) contained in Chapter 1 are effective as of July 1, 2023. All actions pending as of that date are subject to these rules.

§ 2. Applicability.. The rules in this chapter apply to parties who have agreed to utilize the Board’s services as a board of inquiry or a board of conciliation in the private sector, as a fact finding panel in the public sector, or as a board of arbitration in either the public or private sector.

§ 3. Fees and Expenses.. The parties are required to share the costs for services rendered and expenses incurred by the Board and any state cost allocation program charges. The executive director may estimate costs upon receipt of a request for services and collect those costs prior to providing the services. The executive director shall bill or reimburse the parties, as appropriate, for any difference between the estimated costs that were collected and the actual costs of providing the services. Once one party has paid its share of the estimated cost of providing the service, the matter will be scheduled.

§ 4. Executive Director.. The executive director is the Executive Director of the Maine Labor Relations Board. Whenever a rule refers to the executive director, the action or responsibility may be delegated to the executive director’s designee.

§ 5. Definition of Working Days.. "Working days" means those days when State offices in Augusta are open for business.

§ 6. Computation of Time Periods.. In computing any period of time prescribed or allowed by these rules or by any applicable statute, the day of the act or event after which the designated period of time begins to run is not included. The last day of the period is included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.

§ 7. Filing

1. Electronic Filing Required. Except as provided in subsection 4, all correspondence and any other documents filed with the Board shall be filed electronically via internet transmission to the Board’s general email address, sbac@maine.gov, in the manner provided for in this section.

2. Electronic Filing Procedure. All documents filed electronically must be filed pursuant to the following procedure.

A. The filing shall include an email correspondence to the Board that identifies the name of the person or representative making the filing and the name of the party in whose name the document is being filed.

B. Documents filed electronically must be in Microsoft Word® or PDF format and must be capable of being readily printed or otherwise reproduced clearly and legibly on paper 8 and 1/2 inches by 11 inches in size. Documents for filing must be included as an attachment to the email required in paragraph A.

C. When a signature is required for a document to be filed with the Board, the document must either be signed by hand and scanned as a PDF file or must be signed electronically in the following format: “/s/ [signatory’s name].”

D. Documents submitted to the individual email addresses of Board members, the executive director or other staff members shall be deemed not filed.

3. Filing Date. A document submitted to the Board electronically will be deemed to be filed or received on the date and time in which the Board received the document at the Board’s general email address, sbac@maine.gov, in accordance with this section. A document will be considered filed on a certain day if it is received electronically as of 11:59 p.m. on that day. The date and time that a document has been received electronically will be noted in a Notice of Electronic Filing, which will be sent by the Board electronically to the filing party.

4. Filing by Mail or Hand Delivery. Parties who are unable to submit documents electronically may submit documents by mail, hand delivery or delivery service. Such filings or submissions must include a statement certifying that the party was unable to transmit the documents electronically, including a description of the reasons that electronic transmission of the documents could not be accomplished. The Board may reject any such filings that it finds could have been submitted electronically. A party may hand deliver a document for filing at the Maine Labor Relations Board’s office, by prior arrangement, between the hours of 8:30 a.m. and 4:30 p.m. on Monday through Friday, excepting dates on which the office is closed due to State holidays, extreme weather or emergency.

5. Grievance, Contract and Other Pertinent Documents. No Arbitration Request Form (BAC Form 1) will be processed unless accompanied by a copy of the grievance, contract and other pertinent documents. Four physical copies of this documentation must be filed with the Board prior to hearing, unless the executive director or Board waives this requirement.

§ 8. Service Upon A Party

1. Methods of Service. A paper is served upon a party when it is mailed to the party or the party’s attorney, or delivered by hand delivery or delivery service to the recipient or the recipient’s office. A paper may also be served electronically, in accordance with subsection 2.

2. Electronic Service. Except in the case of service of a BAC Form 1 or subpoena, whenever a rule requires that a party serve a copy of a document on another party, service may be effected exclusively by email.

For service of an Arbitration Request Form (BAC Form 1) and accompanying pertinent documents, service will be considered complete on the date that service was provided to the other party by email, so long as service by mail, hand delivery or delivery service occurred on the same calendar day.

3. Certificate of Service. Whenever a rule requires that a party serve a copy of a document on another party, the serving party may demonstrate compliance with the requirement of service by submitting to the Board a signed statement certifying service. The statement should include a written declaration of the names and addresses of the parties served and the date and manner of service. The following is an example of a statement certifying service: "I, _______, certify that on ______, I served a copy of this document on _____(name of party) by emailing/mailing/hand delivery/delivery via _____ delivery service (indicate which method), at the following address:."

A properly completed Arbitration Request Form (BAC Form 1) satisfies the certificate of service requirement. Proof of service such as a certified mail return card is not required but will also satisfy this requirement.

§ 9. Official Transcripts.. A party to a Board hearing seeking to have the hearing transcribed may, with prior approval of the Board, make arrangements for transcription by a qualified court reporter and shall assume the costs of the service. If such arrangements are made and a transcript is produced, a copy must be furnished to the Board without cost and to the other parties upon request and tender of the appropriate fee. If the transcript is agreed by the parties to be or, in appropriate cases, determined by the Board to be the official record of the proceeding, it must be made available to the other party for inspection at a time and place determined by the Board.

§ 10. Enlargement of Time Periods and Postponement of Proceedings. Enlargement of Time Periods When an act must be done within a specified time period or if a proceeding has been scheduled, and, prior to the expiration of that period or the date of the proceeding the Board receives a request for enlargement of that time, the Board may in its discretion with or without motion or notice enlarge that time period for good cause shown. Upon motion made after the expiration of the specified period, the Board may extend the period where the failure to act was the result of excusable neglect.

§ 11. Witnesses and Subpoenas.. A party to a proceeding before the Board may request the attendance of witnesses voluntarily or by subpoena. If witnesses or documents are sought by subpoena, the requesting party must first make a written request to the Board or presiding official for the issuance of the subpoena. When the subpoena is issued, it is the responsibility of the requesting party to serve the subpoena or cause it to be served on the named individual. When a witness is subpoenaed, the witness fee and transportation allowance established by 16 M.R.S.A. §251 must be provided at the time the subpoena is served. If the Board, on its own motion, requires the attendance of witnesses through subpoenas, the Board will cause the subpoena to be served on the named individual and will be responsible for paying the required witness fee and transportation allowance.

§ 12. Discovery. Upon request of either party in a grievance arbitration dispute pending before the Board and for good cause shown, the chair of the panel assigned to hear the matter may issue a subpoena duces tecum, returnable at such date, time and place in advance of the hearing as determined by the chair, to secure copies of such relevant records and documents in the possession of the other party as may be necessary for the prosecution of the requesting party’s case.

§ 13. Rules Regarding Evidence. . The strict rules of evidence observed by courts do not apply in matters before the Board. The following rules regarding evidence apply:

1. Evidence. 1. The Board shall admit evidence if it is the kind upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Irrelevant or unduly repetitive evidence may be excluded.

2. Rules of Privilege. . The Board shall observe the rules of privilege recognized by law.

3. Written Evidence; Exception. No sworn written evidence shall be admitted unless the author is available for cross-examination or subject to subpoena, except for good cause shown.

§ 14. Confidential Information. When the Board is functioning as a board of inquiry or a board of conciliation in the private sector, as a fact finding panel in the public sector, or as a board of arbitration in either the public or private sector, its proceedings are confidential and any information disclosed by either party to a dispute to the Board or any of its members in carrying out their duties shall be confidential, except as may be provided in 26 M.R.S.A., Chapter 9, Subchapter 2-A.

§ 15. Official Notice. The Board may take official notice of any facts of which judicial notice could be taken, and may take official notice of technical or scientific matters within their specialized knowledge. They may also take official notice of statutes, regulations and nonconfidential agency records. Parties will be notified of the Board’s intention to take official notice and will be afforded a reasonable opportunity to contest the substance or materiality of the facts involved. Members of the Board may utilize their experience, technical competence and specialized knowledge in evaluating the evidence presented to them.

§ 16. Rights of Parties. . Any party to the hearing shall have the right to be represented by counsel or by other representative, at the party’s expense, to examine and cross-examine witnesses, and to offer documentary and other evidence. Documentary and other evidence must be offered in 4 copies, unless the executive director or Board permit the parties to submit evidence electronically. Stipulations may be offered with respect to any issue. Parties may request the issuance of subpoenas. The Board shall allow oral argument upon request, and, after consultation with the parties, may require briefs to be submitted. Any brief permitted to be filed must be filed in the original and 3 copies, unless the executive director or Board permit the parties to submit briefs electronically. A copy of any brief filed with the Board must simultaneously be served on all parties to the matter.

§ 17. Ex Parte Communications Prohibited. No party or other person(s) legally interested in the outcome of a hearing may communicate ex parte either directly or indirectly with the Board assigned to the case in connection with any issue of fact, law or procedure except upon notice and opportunity for all parties to participate. Discussions between each party and its respective partisan Board member during conciliation or attempted conciliation, prior to convening the hearing in an arbitration case, or such dialogue during interest fact-finding do not constitute prohibited ex parte communications within the meaning and intent of this rule.

§ 18. Board Award. After the close of the record in fact finding and arbitration matters, the Board will issue an award within the time established by applicable statute, rule or collective bargaining agreement, or, in the absence of such controlling time limit, within a reasonable time. The parties may extend the time in writing either before or after the expiration thereof. A party waives the objection that an award was not made within the time required unless that party notifies the Board of its objection prior to the delivery of the award to that party. The opinion shall include findings of fact sufficient to constitute the basis of the decision and record the vote of each member of the Board. Any member of the Board may prepare a dissenting decision or a decision concurring in part and dissenting in part and such separate decision will be disseminated in the same manner as the majority decision. The Board shall deliver the award to each party personally, or by certified mail, or in the manner provided in the agreement to arbitrate.

§ 19. Change of Award by Arbitrators. Either party may file an application with the Board for modification or correction of an award. Such application must be filed with the Board within 20 days after delivery of the award to the applicant. The applicant shall give notice of the application forthwith to the other party, stating that such party must serve its objections thereto, if any, within 10 days from receipt of the notice. Upon review of the application and any objections, the Board may modify or correct the award where there was an evident miscalculation of figures, an evident mistake in the description of any person, thing, or property referred to in the award, or the award is imperfect in a matter of form, not affecting the merits of the controversy. Any award so modified or corrected is subject to review as provided in the following section.

§ 20. Review of Arbitration Awards. . Either party may seek review by the Superior Court of a binding determination by an arbitration panel. For grievance arbitrations, the review must be sought pursuant to the provisions of the Uniform Arbitration Act , 14 M.R.S.A. §§ 5927-5949. For interest arbitration decisions, the review must be sought in accordance with Maine Rules of Civil Procedure , Rule 80B. The binding determination of the Board is final on all questions of fact, in the absence of fraud. The Court may, after consideration, affirm, reverse or modify any such binding decision based upon an erroneous ruling or finding of law. An appeal may be taken to the Law Court as in any civil action.

§ 21. Other Procedural Issues. In the event that procedural issues arise that are not addressed by the State Board of Arbitration and Conciliation Statute, 26 M.R.S.A. §931 et seq ., or by the Uniform Arbitration Act , 14 M.R.S.A. §5927 et seq ., the Board will look to the Labor Arbitration Rules promulgated by the American Arbitration Association for guidance in resolving such questions.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. §931
• EFFECTIVE DATE: October 3, 2005 – filing 2005-397
• AMENDED: July 1, 2023 – filing 2023-086
• AMENDED: APAO WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK: July 17, 2025

Chapter 3 Logging Dispute Resolution Board Rules

Code Me. R. 12-186 Ch. 3 Logging Dispute Resolution Board {#sec-12-186-ch.-3 omnilex-key=us-me-regs-official--dept-labor--12-186 Ch. 3}

SUMMARY: This chapter contains the rules governing the procedures of the Logging Dispute Resolution Board.

§ 1. Effective Date. The rules of the Logging Dispute Resolution Board (Board) contained in this chapter are effective as of July 1, 2023. All actions pending as of that date are subject to these rules.

§ 2. Nature of a Complaint.. The filing of a complaint with the Board is a request that the Board hear and decide a dispute between a forest products harvester and forest landowner related to wage violations, payout amounts, contract violations or disputes related to hiring and publish a written opinion and make an award if appropriate.

§ 3. Who May File a Complaint. A forest products harvester or forest landowner, as defined in 26 M.R.S.A. §3701, may file a complaint with the Board.

§ 4. Time Limit for Filing a Complaint. No complaint may be filed more than 2 years after an alleged dispute.

§ 5. Contents of a Complaint. The complaint must contain, insofar as known, all of the information specified in a form provided by the Board. The complaint must also include a Concise Statement of Facts, which is a clear and concise statement of the facts constituting the complaint, set out in separate numbered paragraphs. The complaint may also include, but is not required to include, attached documentary evidence in support of the factual allegations made in the complaint.

§ 6. Filing of Complaint with Board; Service of Complaint upon Other Party. The complaint must be filed with the Board in accordance with section 11. A copy of the complaint must be served on the other party to the dispute in accordance with section 12. The complaint will not be considered officially filed with the Board until a hard copy has been placed in the mail or otherwise served on the respondent.

§ 7. Fees and Expenses. The costs for services rendered and expenses incurred by the Board and any state cost allocation program charges must be borne by the party against whom the Board decides.

§ 8. Executive Director. The executive director is the Executive Director of the Maine Labor Relations Board. Whenever a rule refers to the executive director, the action or responsibility may be delegated to the executive director’s designee.

§ 9. Definition of Working Days. "Working days" means those days when State offices in Augusta are open for business.

§ 10. Computation of Time Periods. In computing any period of time prescribed or allowed by these rules or by any applicable statute, the day of the act or event after which the designated period of time begins to run is not included. The last day of the period is included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.

§ 11. Filing

1. Electronic Filing. All correspondence, motions, complaints and any other documents filed with the Board may be filed electronically via internet transmission to the Board’s general email address, ldrb@maine.gov, in the manner provided for in this section.

2. Electronic Filing Procedure. All documents filed electronically must be filed pursuant to the following procedure.

A. The filing shall include an email correspondence to the Board that identifies the name of the person or representative making the filing and the name of the party in whose name the document is being filed.

B. Documents filed electronically must be in Microsoft Word® or PDF format and must be capable of being readily printed or otherwise reproduced clearly and legibly on paper 8 and 1/2 inches by 11 inches in size. Documents for filing must be included as an attachment to the email required in paragraph A.

C. When a signature is required for a document to be filed with the Board, the document must either be signed by hand and scanned as a PDF file or must be signed electronically in the following format: “/s/ [signatory’s name].”

D. Documents submitted to the individual email addresses of Board members, the executive director, or other staff members shall be deemed not filed.

3. Filing Date. A document submitted to the Board electronically will be deemed to be filed or received on the date and time in which the Board received the document at the Board’s general email address, ldrb@maine.gov, in accordance with this section. A document will be considered filed on a certain day if it is received electronically as of 11:59 p.m. on that day. The date and time that a document has been received electronically will be noted in a Notice of Electronic Filing, which will be sent by the Board electronically to the filing party.

4. Filing by Mail, Delivery Service or Hand Delivery. Parties who do not wish to submit documents electronically may submit documents by mail, delivery service or hand delivery. A party may hand deliver a document for filing at the Maine Labor Relations Board’s office, by prior arrangement, between the hours of 8:30 a.m. and 4:30 p.m. on Monday through Friday, excepting dates on which the office is closed due to State holidays, extreme weather or emergency.

§ 12. Service

1. Methods of Service. A paper is served upon a party when it is mailed to the party or the party’s attorney, or delivered by hand delivery or delivery service to the recipient or the recipient’s office. A paper may also be served electronically, in accordance with subsection 2.

2. Electronic Service. Except in the case of service of a complaint, amended complaint or subpoena, whenever a rule requires that a party serve a copy of a document on another party, service may be effected exclusively by email.

For service of a complaint or amended complaint, service will be considered complete on the date that service was provided to the other party by email, so long as service by mail, hand delivery or delivery service occurred on the same calendar day.

3. Certificate of Service. Whenever a rule requires that a party serve a copy of a document on another party, the serving party may demonstrate compliance with the requirement of service by submitting to the Board a signed statement certifying service. The statement should include a written declaration of the names and addresses of the parties served and the date and manner of service. The following is an example of a statement certifying service: "I, _______, certify that on ______, I served a copy of this document on _____(name of party) by mailing/hand delivery/delivery via _____ delivery service (indicate which method), at the following address:."

Proof of service, such as a certified mail return card, is not required except in the case of a complaint or amended complaint. Such proof will satisfy the requirement for a certificate of service. A sample certificate of service is available from the Board and is included with the Board’s complaint form (LDRB Form 1).

4. Proof of Service. For a complaint or amended complaint, the executive director may at any time require the complainant to file proof of the date that the complaint was served on the respondent if proof of service is not filed with the complaint. Proof of service may be in the form of either a certified mail receipt signed by the recipient addressee or an agent of the addressee, a signed and dated acknowledgment of receipt by hand delivery, a dated confirmation of delivery from the Post Office or other delivery service, a dated statement of refusal of service or a copy of the sent email that includes the date and the email address to which it was sent.

§ 13. Official Transcripts. A party to a Board hearing seeking to have the hearing transcribed may, with prior approval of the Board, make arrangements for transcription by a qualified court reporter and shall assume the costs of the service. If such arrangements are made and a transcript is produced, a copy must be furnished to the Board without cost and to the other parties upon request and tender of the appropriate fee. If the transcript is agreed by the parties to be or, in appropriate cases, determined by the Board to be the official record of the proceeding, it must be made available to the other party for inspection at a time and place determined by the Board.

§ 14. Enlargement of Time Periods and Postponement of Proceedings. When an act must be done within a specified time period or if a proceeding has been scheduled, and, prior to the expiration of that period or the date of the proceeding the Board receives a request for enlargement of that time, the Board may in its discretion with or without motion or notice enlarge that time period for good cause shown. Upon motion made after the expiration of the specified period, the Board may extend the period where the failure to act was the result of excusable neglect.

§ 15. Witnesses and Subpoenas. A party to a proceeding before the Board may request the attendance of witnesses voluntarily or by subpoena. If witnesses or documents are sought by subpoena, the requesting party must first make a written request to the Board or presiding official for the issuance of the subpoena. When the subpoena is issued, it is the responsibility of the requesting party to serve the subpoena or cause it to be served on the named individual. When a witness is subpoenaed, the witness fee and transportation allowance established by 16 M.R.S.A. §251 must be provided at the time the subpoena is served. If the Board, on its own motion, requires the attendance of witnesses through subpoenas, the Board will cause the subpoena to be served on the named individual and will be responsible for paying the required witness fee and transportation allowance.

§ 16. Discovery. Upon request of either party in a dispute pending before the Board and for good cause shown, the chair of the panel assigned to hear the matter may issue a subpoena duces tecum, returnable at such date, time and place in advance of the hearing as determined by the chair, to secure copies of such relevant records and documents in the possession of the other party as may be necessary for the prosecution of the requesting party’s case.

§ 17. Rules Regarding Evidence. The strict rules of evidence observed by courts do not apply in matters before the Board. The following rules regarding evidence apply:

1. Evidence..The Board shall admit evidence if it is the kind upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Irrelevant or unduly repetitive evidence may be excluded.

2. Rules of Privilege.The Board shall observe the rules of privilege recognized by law.

3. Written Evidence; Exception.No sworn written evidence shall be admitted unless the author is available for cross-examination or subject to subpoena, except for good cause shown.

§ 18. Confidential Information. The Board’s proceedings are confidential and any information disclosed by either party to a dispute to the Board or any of its members in carrying out their duties shall be confidential.

§ 19. Official Notice. The Board may take official notice of any facts of which judicial notice could be taken, and may take official notice of technical or scientific matters within their specialized knowledge. They may also take official notice of statutes, regulations and nonconfidential agency records. Parties will be notified of the Board’s intention to take official notice and will be afforded a reasonable opportunity to contest the substance or materiality of the facts involved. Members of the Board may utilize their experience, technical competence and specialized knowledge in evaluating the evidence presented to them.

§ 20. Rights of Parties. Any party to the hearing shall have the right to be represented by counsel or by other representative, at the party’s expense, to examine and cross-examine witnesses, and to offer documentary and other evidence. Stipulations may be offered with respect to any issue. Parties may request the issuance of subpoenas. The Board shall allow oral argument upon request, and, after consultation with the parties, may require briefs to be submitted. Any brief permitted to be filed must be filed in the original and 3 copies. A copy of any brief filed with the Board must simultaneously be served on all parties to the matter.

§ 21. Ex Parte Communications Prohibited. No party or other person(s) legally interested in the outcome of a hearing may communicate ex parte either directly or indirectly with the Board assigned to the case in connection with any issue of fact, law or procedure except upon notice and opportunity for all parties to participate.

§ 22. Board Award. After the close of the record the Board will issue a written opinion and an award, if appropriate, within a reasonable time. The opinion shall include findings of fact sufficient to constitute the basis of the decision and record the vote of each member of the Board. Any member of the Board may prepare a dissenting decision or a decision concurring in part and dissenting in part and such separate decision will be disseminated in the same manner as the majority decision. The Board shall deliver the award to each party personally or by certified mail.

§ 23. Change of Award. Either party may file an application with the Board for modification or correction of an award. Such application must be filed with the Board within 20 days after delivery of the award to the applicant. The applicant shall give notice of the application forthwith to the other party, stating that such party must serve its objections thereto, if any, within 10 days from receipt of the notice. Upon review of the application and any objections, the Board may modify or correct the award where there was an evident miscalculation of figures, an evident mistake in the description of any person, thing, or property referred to in the award, or the award is imperfect in a matter of form, not affecting the merits of the controversy. Any award so modified or corrected is subject to review as provided in the following section.

§ 24. Appeal. A decision of the Board constitutes final agency action and is subject to review by the Superior Court under the Maine Administrative Procedure Act , 5 M.R.S.A. chapter 375, subchapter 7, in accordance with Maine Rules of Civil Procedure , Rule 80B. The Court may, after consideration, affirm, reverse or modify any such binding decision based upon an erroneous ruling or finding of law. An appeal may be taken to the Law Court as in any civil action.

§ 25. Enforcement. A party to a decision of the Board may bring a civil action in Superior Court to enforce a decision of the Board.

§ 26. Other Procedural Issues. In the event that procedural issues arise that are not addressed by these rules or the statutes establishing the Logging Dispute Resolution Board, 26 M.R.S.A. §3701 et seq ., or by the Uniform Arbitration Act , 14 M.R.S.A. §5927 et seq ., the Board will look to the Labor Arbitration Rules promulgated by the American Arbitration Association for guidance in resolving such questions.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. §3707
• EFFECTIVE DATE: July 1, 2023 – filing 2023-087
• SECTION NUMBERING CORRECTED: June 23, 2023
• SECTION NUMBERING CORRECTED: APAO WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK: July 17, 2025

12-597 Bureau of Employment Services

Chapter 1 Rules Governing Implementation of the Trade Adjustment Assistance Program

Code Me. R. 12-597 Ch. 1 Rules Governing Implementation of the Trade Adjustment Assistance Program {#sec-12-597-ch.-1 omnilex-key=us-me-regs-official--dept-labor--12-597 Ch. 1}

Purpose

SECTION 1: Definitions 2

SECTION 2: Assessing an Individual for Training 4

SECTION 3: Developing the Individual Service Strategy 5

SECTION 4: Selection of Training Methods 6

SECTION 5: TAA Training Approval Process 8

SECTION 6: Reasonable Cost Limit for Training 10

SECTION 7: Six Criteria for Approval of Training 12

SECTION 8: Transportation Payments 14

SECTION 9: Subsistence Payments 14

SECTION 10: Job Search Allowances 16

SECTION 11: Relocation Allowances 18

SECTION 12: Determination Process 20

SECTION 13: Alternative Trade Adjustment Assistance for Older Workers (ATAA) 22

SECTION 14: Reemployment Trade Adjustment Assistance (RTAA) 23

PURPOSE

The Trade Act of 1974 (“Trade Act”) established the Trade Adjustment Assistance Program, which provides re-employment services hereafter referred to as Trade Adjustment Assistance (TAA) and monetary benefits, Trade Readjustment Allowances (TRA). TAA includes re-employment services such as counseling, testing, training, placement and other supportive services for workers adversely affected. TRA provides monetary allowances while in training, job research and relocation allowances.

SECTION 1: DEFINITIONS

1. For the purposes of the Trade Adjustment Assistance program, the following definitions apply:

A. Adequate Financial Resources means the financial capacity of an individual to support himself or herself while in training and if the approved training will continue beyond the exhaustion of all monetary allowances payable under the Trade Act Program.

B. Adversely affected incumbent worker means a worker who is a member of a group of workers who have been certified as eligible to apply for TAA based upon a TAA petition filed on or after May 18, 2009, who has not been totally or partially separated from adversely affected employment, and who is threatened with total or partial separation as documented by a notice of termination or layoff or other reliable documentation of the threat of total or partial separation.

C. Average Weekly Wage means one-thirteenth of the total wages paid to an individual in the individual’s high quarter. The high quarter for an individual is the quarter in which the total wages paid to the individual were highest among the first four of the last five completed calendar quarters preceding the individual’s appropriate week.

D. Certification means a certification of eligibility to apply for TAA issued under the Trade Act with respect to a specified group of workers of a firm or appropriate subdivision of a firm.

E. Commuting Area means the area in which an individual would be expected to travel to and from work on a daily basis as determined under the applicable state law. Commuting area is defined as a 50-mile radius from the trade affected individual’s place of residence. This definition does not apply to transportation payments.

F. Customized Training means training that is (1) designed to meet the special requirements of an employer or group of employers; (2) conducted with a commitment by the employer or group of employers to employ an individual upon successful completion of the training; and (3) for which the employer pays for a significant portion (but in no case less than 50 percent) of the cost of such training.

G. Individual Services Strategy means an ongoing strategy jointly developed by the individual and the CareerCenter Case Manager that identifies the individual’s employment goals, the appropriate achievement objectives, and the appropriate combination of services for the individual to achieve the employment goals.

H. Reasonable Expectation of Employment means that, given the job market conditions expected to exist at the time of the completion of the training program, there is, fairly and objectively considered, a reasonable expectation that the individual will find a job, using the skills and education acquired while in training, after completion of the training.

I. Suitable Employment means work of substantially equal or higher skill level than the individual’s past adversely affected employment, and wages for such work at not less that 80 percent of the individual’s average weekly wage. Suitable work does not in any case include self-employment .

J. Supportive Services include school supplies, mileage assistance, subsistence payments, and training costs which are necessary to complete training and required of all students enrolled in a training program such as tools, medical insurance, immunizations, physicals and uniforms.

Services such as childcare, car repairs, car insurance, car registration, eyeglasses and eye exams, housing maintenance, food, clothing, dental assistance and state licensing are not funded under the Trade Adjustment Assistance program. These may be supported through other community resources or federal grants.

K. Training-Related Costs includes tuition, books, tools, academic fees, travel or transportation expenses and subsistence expenses. All other expenses to be included in this must meet the following criteria:

(1) The item must be necessary for the trainee to undertake and complete the program under consideration; and

(2) The item must be required for all students to participate in the proposed program.

L. Unforeseen Need means a circumstance that is beyond the individual’s or training provider’s control that prevents the completion of the Individual Service Strategy. Such circumstances include, but are not limited to, the closing of a training facility or the individual’s inability to complete training due to physical or mental capabilities unknown at the time of plan development.

M. Wages means all compensation for employment for an employer, including commissions, bonuses, and the cash value of all compensation in a medium other than cash (including health benefits and retirement benefits).

SECTION 2: ASSESSING AN INDIVIDUAL FOR TRAINING

1. Suitable re-employment in the most reasonable period of time is the ultimate goal of TAA. Individuals shall participate in the following process when being assessed for training under the TAA program:

A. An assessment shall be conducted to define the individual's current and potential skills, knowledge, interests, aptitudes, and/or capabilities as they relate to the needs of the current labor market. The individual shall be given preferred assessment tools such as the O’Net Career Exploration Tools, the Test of Adult Basic Education (“TABE”) and the General Aptitude Test Battery (“GATB”).

B. Throughout the assessment process the individual shall be provided assistance on how to define what his/her transferable skills are and how to write effective resumes and cover letters. The individual shall be shown how to use labor market information and how to search for employment opportunities. The CareerCenter Case Managers shall also provide assistance with interview techniques, job referrals and development.

C. The assessment shall summarize the information about an individual’s current skills, work and educational history, financial resources, physical and mental capabilities, interests, and aptitudes; and how this information relates to the demands of the current labor market.

D. During the development of the Individual Service Strategy (employment plan), a determination shall be made regarding whether the individual has the effective skills, physical and mental capabilities and education to obtain suitable employment in the current labor market. Labor market information shall be used to support documentation that justifies if the individual has the existing transferable skills to find suitable employment in the current labor market area.

E. If it is determined that some training is necessary for the individual to obtain suitable employment, the CareerCenter Case Manager and individual shall review what occupational categories are in high demand and discuss how these expanding occupations relate to the individual’s interest, skills and capabilities.

F. The CareerCenter Case Manager shall work with the individual to define what skill level and specific training is needed and to identify the shortest program available that provides the desired skill level to assist the individual in returning to suitable employment. Labor market information shall be used to support documentation that justifies that there is a reasonable expectation of suitable employment at the completion of training.

G. The individual must meet the six conditions for approval of training referred to in this Chapter before training can be approved. The CareerCenter Case Manager shall document in the assessment how the individual meets these six criteria for approval of training. The state administrative agency shall be responsible for determining if an individual meets all the criteria.

SECTION 3: DEVELOPING THE INDIVIDUAL SERVICE STRATEGY

A specific training plan shall be developed for those TAA participants for whom training is necessary to become re-employed in suitable employment. Such training plan shall include the following:

1. A Statement of Purpose/Employment Goal , which shall identify the employment goal that leads the individual to suitable re-employment in the most reasonable period of time. This shall be developed after a review of transferable skills, potential and past wages, available training options, labor market conditions and employment marketability.

2. Job Prospects/Labor Market Information. Job prospect/labor market information shall be analyzed in order to develop the training plan. The CareerCenter Case Manager shall work with the individual in order to record the activities required to be performed and completion dates for performance, based upon the skills, abilities, and education identified in the individual’s assessment. Such activities shall include:

A. Attending workshops to define his/her transferable and marketable skills, writing resumes and cover letters, learning interview techniques, learning how to use labor market information and learning how to search for employment;

B. Researching and applying for available suitable employment opportunities in the local market area that match his/her current skills, abilities and education;

C. Working with the CareerCenter Case Manager on job development with businesses, receiving referrals and following through with applying for the employment opportunities identified as suitable;

D. Providing to the CareerCenter Case Manager, on a monthly basis, a copy of the job search tracking form (individuals may use either the UI work search log or a job search log provided by the CareerCenter) that identifies the employment opportunities for which he/she has applied; and

E. If the individual does not have the skills to return to suitable employment, the CareerCenter Case Manager and the individual shall develop and record the Individual Service Strategy (employment plan) that prepares him/her for suitable re-employment in an occupation which shows a projection of growth and minimizes his/her time separated from the workplace;

F. The Individual Service Strategy shall also document for which items TAA funds will pay. Such items may include tuition and related expenses such as books, academic fees, tools, medical insurance, immunizations, physicals, uniforms and travel, supportive services, relocation allowances, job search allowances, or subsistence. Generally TAA is the payer after financial aid and grants have been subtracted from the training costs. All items must be pre-approved in writing.

(1) If the individual’s weekly benefits have been exhausted and Pell grants are available, the BES CareerCenter Manager may authorize TAA funds to pay for remaining tuition and related expenses per semester so that the Pell grant may be released to cover living expenses of the individual.

3. Identification of individual needs , which shall identify any difficulties to re-employment and referral to appropriate providers for assistance.

SECTION 4: SELECTION OF TRAINING METHODS

1. Suitable training methods may include:

A. On-the-job training that includes related education necessary to acquire skills needed for a position with a particular occupation in the firm or elsewhere, including training for which the firm pays the costs. This ensures that on-the-job training provides the skills necessary for the individual to obtain employment in an occupation rather than a particular job at a specific site. On-the-job training may be approved only if the agency determines that:

(1) No currently employed individual is displaced by such eligible worker, including partial displacement such as a reduction in the hours of non-overtime work, wages, or employment benefits;

(2) Such training does not impair existing contracts for services or collective bargaining agreements;

(3) In the case of training which would be inconsistent with the terms of a collective bargaining agreement, written concurrence has been obtained from the concerned labor organization;

(4) No other individual is on layoff from the same or any substantially equivalent job for which such eligible worker is being trained;

(5) The employer has not terminated the employment of any regular employee or otherwise reduced the workforce with the intention of filling the vacancy so created by hiring the eligible worker;

(6) The job for which the eligible worker is being trained is not being created in a promotional line that will infringe in any way upon the promotional opportunities of currently employed individuals;

(7) Such training is not for the same occupation from which the worker was separated and with respect to which such worker’s group was certified pursuant to section 2 the Act;

(8) The employer is provided reimbursement of not more than 50 percent of the wage rate of the participant, for the cost of providing the training and additional supervision related to the training

(9) The employer has not received payment under the TAA program or under any other federal law for any other on-the-job training provided by such employer which failed to meet the requirements of paragraphs (1) through (6) of this section or such other federal law; and

(10) The employer has not taken, at any time, any action which violated the terms of any certification described in paragraph (8) of this section made by the employer with respect to any other on-the-job training provided by the employer for which the employer has received payment under the TAA program.

(11) On-the-job training shall not be approved for an adversely affected incumbent worker.

B. Institutional training, with priority given to providing the training in public area vocational education schools, if it is determined that such schools are at least as effective and efficient as other institutional alternatives. These programs may include:

(1) Programs approved by the Maine Department of Labor established under the Workforce Investment Act;

(2) Any program of remedial education:

(a) The duration of remedial/basic education courses must relate directly to the individual's occupational goal as developed through assessment and the Individual Service Strategy. The correlation between the duration of remedial/basic education and the individual's occupational goal must be documented in the Individual Service Strategy;

(b) Full time training for remedial programs must include nine (9) hours of classroom training;

(3) Proprietary schools approved by the Department of Education;

(4) Any other training program approved by the Department of Labor, such as apprentice programs, community college associate and certificate programs, trade school programs, and degree programs, if appropriate;

C. Any training program for which all or any portion of the costs of training are paid under any other federal or state program (other than under the Trade Act), or from any other source, including scholarships, but not including sources personal to the individual, such as self, relatives, and friends

2. Location of Training shall be a factor in selecting training methods.

A. Preference shall be given to training that is offered within the individual's normal commuting area. If more than one training provider exists offering similar, available training within the commuting area, than the least expensive training institution will be chosen. When suitable training is not available within the commuting area, training outside the area may be authorized if available at a reasonable cost pursuant to this Chapter.

B. Training at facilities outside the normal commuting area that involves transportation or subsistence costs that add substantially to the total costs shall not be approved if other appropriate training is available.

C. Any training program conducted in total, or in part, at a location outside the United States is not allowed.

D. Generally, training programs located outside of Maine for individuals residing in Maine shall not be approved unless appropriate training is not available within the state.

3. For workers covered by TAA petitions numbered 70,000-79,999, the maximum duration of approved training shall be 130 weeks of actual training for a single certification. In cases where the individual requires remedial education, the approved training may be extended to a maximum of 156 weeks. For workers covered by petitions filed before May 18, 2009 and numbered 80,000, the maximum duration of approved training shall be 104 weeks, or, if an individual requires remedial education, 130 weeks. For workers covered by TAA petitions numbered 81,000 + or 80,000 choosing the 81,000 rules, the maximum duration of approved training shall be 130 with the last 13 weeks only available if needed for completion of training and if training benchmarks are met.

4. At no time shall post-secondary programs be approved for the sole purpose of furthering education.

5. Full-time is defined by the training institution based upon the number of weeks of classroom and any clinical training required. Some examples of short-term training may be CDL Truck Driving, Certified Nurse’s Aide, and Personal Care Attendant, which are a specific number of weeks as defined by the training institution.

6. For workers covered by TAA petitions filed on or after May 18, 2009, workers may choose either part-time or full-time training. Workers receiving TRA must be in enrolled in full-time training. Workers receiving RTAA may choose part-time training. Part time training must also meet the six criteria for approval of training.

SECTION 5: TAA TRAINING APPROVAL PROCESS

The following information shall be considered in the training approval process and documented in the Assessment and Individual Service Strategy:

1. Background Information. Information about the individual's previous job, title, skills, specific duties including any supervision of staff, wages , length of tenure, layoff date, and all other supporting information that explains the individual’s work history;

2. Education/Training. Information about the individual's educational attainment, highest academic grade completed, other work related or professional training undertaken to enhance or upgrade occupational skills;

3. Assessment and Labor Market Information. Information shall be analyzed in order to relate the process and results of the individual's assessment to the development of the occupational goal and to determine if the occupation shows projected growth. In making this determination, the following factors shall be considered:

A. The types of interest and aptitude tests that were administered. Preferred assessment tools include the O’Net Career Exploration Tools, TABE, and GATB;

B. What the results from these assessment tools revealed;

C. How the results relate to occupational categories;

D. What skills the individual possesses and how these skills relate to the employment opportunities in the local labor market area;

E. Specific difficulties to employment that were identified;

F. The data utilized in the labor market analysis, such as job search listings, specific labor market publications, and industry projections; and

G. If current skills are not in demand in the local labor market, whether the individual explored possible relocation to an area where demand for his/her current skills exists.

4. Training Needs. Identification of the specific training requirements the individual must meet to obtain the minimal skill level necessary to gain suitable employment and minimize his/her time separated from the workplace.

5. Employment Goal. The employment goal should be identified in the following terms:

A. The individual's occupational goal;

B. The expected entry wage/salary;

C. Whether the expected salary meets 80 percent of the individual’s average weekly wage and is otherwise suitable employment;

D. Whether the occupational goal matches the needs of the anticipated local job market area; and

E. The expectation for long-term viability in this occupation.

6. Financial Statement. Documentation of the individual’s financial ability to support him/herself while in the approved training shall be provided by the individual.

A. The individual must complete a review of his/her financial information to identify the income and expenses for him/herself while in training;

B. The CareerCenter Case Manager shall review the financial information with the individual and document the sources of income in the assessment;

C. If it is determined, based on information provided by the individual pursuant to subsection (A), that sources of income are not sufficient to carry the individual through the training period, the training program shall be denied, and other shorter term training opportunities shall be explored with the individual.

7. Review of Documentation. The BES CareerCenter Manager or his/her designee shall review the assessment, Individual Service Strategy, case notes, financial information, the job search tracking forms and the supporting documentation to ensure that the six criteria for approval of training, as outlined specifically in this Chapter, are met. If the documentation demonstrates that the recommended occupational goal is appropriate for the individual, and there is a reasonable expectation of employment for the occupation in the labor market, and the individual has the capacity to successfully complete the training program, the BES CareerCenter Manager or his/her designee will approve the requested training. An individual’s approved training program may only be amended by the State agency to add a course designed to satisfy unforeseen needs of the individual, as defined in this Chapter, such as remedial education or specific occupational skills, as long as the length of the amended training program does not exceed the 104, 130 or 156 week(whichever applies) training limitation.

SECTION 6: REASONABLE COST LIMIT FOR TRAINING

Approved training must be provided at a reasonable cost. Approval requires that the training be “at the lowest reasonable cost.”

1. The total cost of any TAA training shall be considered unreasonable if it exceeds $25,000.

A. A training plan for an individual must be at the lowest reasonable cost available to the individual within the commuting area. The training must allow him/her to gain suitable employment in the workforce in the shortest time period (taking into account that part-time training is permitted for workers covered by petitions #70,000; 81,000+ or 80,000 choosing the 81,000 rules) and offer a reasonable expectation of prolonged employment.

B. Training that involves transportation or subsistence costs that add substantially to the total training costs present the basis for not approving the training, when other appropriate training is available.

C. The TAA Coordinator may consider those training plans that exceed the reasonable cost limit, if there is an extenuating circumstance and if funding is available.

(1) An extenuating circumstance may exist when the individual resides in a rural part of the State that has few or no training options available within the commuting area, and the travel costs increase the overall cost of the plan beyond $25,000

(2) The CareerCenter Case Manager shall document that other less expensive training options were explored within the commuting area and clarify why this more expensive training is more appropriate for this individual.

D. An application for training shall not be approved if the training is in an occupational area which requires an extraordinarily high skill level and for which the total costs of the training are substantially higher than the costs of other training that is suitable for the individual.

E. An application for training shall not be approved if the average costs of training are unreasonably high in comparison with the average costs of training of other individuals in similar occupations at other institutions or facilities providing training substantially similar in quality, content and results within a similar time frame.

2. Costs of a training program shall include tuition and related expenses such as books, academic fees, tools, medical insurance, immunizations, physicals, uniforms, and travel or subsistence expenses.

3. In determining what training-related costs are covered, two factors shall be considered:

A. The item must be required, rather than recommended or suggested, for the trainee to undertake and complete the training program; and

B. The item must be required for all students in order to participate in the proposed program.

4. Documentation identifying required costs of all participants in that training program or a list of required items shall be provided by the individual. Acceptable documentation may include a letter printed on official school stationary and signed by a school authorized representative.

5. End-of-training costs such as licenses, starter tools, and additional uniforms are considered “job search related expenditures,” and are not covered under the Trade Act.

6. Individuals in TAA approved training are allowed a maximum of $100 for school supplies for a 2-year program. School supplies such as spiral bound notebooks, three ring binders, paper, pens, pencils, highlighters, report covers and/or a backpack are items that may be purchased within this maximum allowance. Additional funding may be available depending on the need of the individual. School supplies do not include books, tools, tuition or academic fees.

7. The CareerCenter Case Manager shall communicate to both the individual and the training institution at the beginning of the training that any charges to the bookstore for incidental expenses will be paid for by the participant, unless approved by the CareerCenter Case Manager.

SECTION 7: SIX CRITERIA FOR APPROVAL OF TRAINING

In developing an Individual Service Strategy (employment plan) the CareerCenter Case Manager shall ensure that the following criteria are met and documented:

1. There is no suitable employment available for the adversely affected individual.

A. The assessment, Individual Service Strategy, case notes, financial information and job search activities report forms shall completely summarize the information regarding the individual’s current skills, work and educational history, current financial status, physical and mental capabilities, interests, aptitudes, and capabilities and how this information relates to the demands of the current labor market.

B. At the time of the request for training for an individual, there is no suitable employment available for that individual, either in the commuting area, or outside the commuting area in which the individual desires to relocate with the assistance of the relocation allowance. In addition, there is no reasonable prospect of suitable employment becoming available for the individual while he/she is receiving unemployment benefits.

2. The individual would benefit from appropriate training.

A. There must be direct correlation between the needs of the individual for skills training or remedial education and what would be provided by the training program under consideration, and that the individual has the mental and physical capabilities to undertake, make satisfactory progress and complete the training. Further, this implies the individual will be job ready on completion of training.

B. Approval of training will only be made for occupations in which an identifiable demand is expected to exist in the labor market at the completion of training.

3. There is reasonable expectation of employment following completion of training.

A. Given the job market conditions expected to exist at the time of the completion of the training program, there is a reasonable expectation that the individual will find a job, using the skills acquired while in training. The following factors may be considered in determining whether a reasonable expectation exists regarding the likelihood of gaining suitable employment:

(1) a comparison of past wages and the forecast of earnings upon completion of training;

(2) labor market analysis of projected employment potential of stated job goal;

(3) assessment of present skills and the potential of training success; and

(4) a review of available training options.

B. This rule does not require that employment opportunities for the individual be available or offered immediately upon the completion of the approved training.

C. The training shall be of suitable duration to achieve the desired skill level in the shortest possible time.

4. Training approved by the CareerCenter Case Manager is reasonably available to the individual from eligible training providers.

A. The training approved should be reasonably available to the individual from either government agencies or private sources.

B. Suitable training should also be reasonably accessible to the individual within the individual's commuting area, including on-the-job training with an employer. Although the emphasis is on training within the commuting area, it does not preclude training outside the commuting area, if none is available at the time within the individual's commuting area. Whether the training is available within or outside the commuting area, the training must be available at a reasonable cost.

C. Consideration shall always first be given to the lowest cost training that is available within the commuting area if more than one program is available that offers training of substantially similar quality, content and results and can be completed within a similar time frame. If similar training for suitable employment is offered at more than one training facility, the lowest cost training shall be approved.

5. The individual must be qualified to undertake and complete such training. In making this determination, the individual’s personal qualifications shall be assessed, including the individual's own physical and mental capabilities, educational background, work experience and financial resources in relation to the specific training program being considered.

A. The individual shall be evaluated to determine qualification to undertake the specific training program being considered and to complete the training successfully. Preferred evaluation tools include assessment tools such as the O’Net Career Exploration Tools, CASIS, Accuplacer, TABE, and GATB.

B. Evaluation of the individual's financial ability to complete training should include an analysis of the individual's remaining weeks of unemployment benefits and TRA payments in relation to the duration of the training program. If the individual's unemployment benefits and TRA payments are exhausted before the end of the training program, the CareerCenter Case Manager shall ascertain whether personal or family resources or other resources are sufficiently available to enable the individual to complete the training. This includes a consideration of financial aid resources that may be available if TAA assists with tuition and fees. The individual shall be given the opportunity to demonstrate that personal, family or other resources are reasonably available to the individual to allow him/her to complete the training.

(1) The CareerCenter Case Manager shall document in the individual’s record what financial resources were identified to carry the individual through the training program before the training is approved.

(2) If adequate financial resources will not be available to the individual to complete the training program being considered the training shall not be approved, and other shorter term training opportunities shall be discussed with the individual.

6. Training is available at a reasonable cost. If the training is determined to be suitable for the individual, a determination must also be made as to whether it is available at a reasonable cost, as defined in this Chapter, in order for the training to be approved.

SECTION 8: TRANSPORTATION PAYMENTS

1. Transportation payments must be computed when determining whether training is available at a reasonable cost. A transportation allowance shall not exceed the lesser of:

A. The actual cost of travel, including tolls, by the least expensive means of transportation (bus, train, etc.) reasonably available between the trainee’s home and the training facility; or

B. The cost per mile, between the trainee’s home and the training facility and back, at the prevailing mileage rate authorized under the federal travel regulations, and the cost of tolls.

2. Any participant who travels 20 miles or more from his/her home to the training facility will receive the transportation payment for those days when he/she participates in scheduled classes.

3. No mileage shall be paid if transportation has been arranged as part of a group, except if the group members alternate driving on a periodic basis with other group members. In that case, the driver who drives for the specific period shall be reimbursed at the rate shown above. If group travel is reasonably available (which means that times, distance and days of travel are acceptable to all parties) to the individual, but he/she declines to accept it, individual travel shall not be approved.

4. If a less expensive means of transportation is reasonably available (bus, train, commuter van, etc.) such means shall be utilized.

5. Transportation payments may be made in advance upon request of the individual if deemed appropriate. An adjustment shall be made if the amount of the advance is less or more than the amount to which the individual is entitled under the Act.

SECTION 9: SUBSISTENCE PAYMENTS

Any individual who is participating in TAA approved training outside the commuting area is entitled to receive subsistence payments while in training. The assumption is that the participant is staying overnight, therefore, needing supplemental assistance for lodging and meals. The participant will be paid subsistence payments based on the following criteria:

1. Subsistence payments shall not exceed the lesser of:

A. The individual’s actual expenses for subsistence; or

B. 50 percent of the per diem rate authorized under current federal law for the location of the training facility.

2. Subsistence consists of:

A. Transportation. The individual shall be entitled to receive a subsistence payment for one trip to the training facility at the start of the training and one trip back to the individual’s residence at the completion of the training by the least expensive means;

B. Meals and incidental expenses. The cost of meals and incidental expenses will be covered for the days the individual is scheduled for training at the rate of 50 percent of the per diem authorized under current federal law for the location of the training facility;

C. Housing/lodging. The cost of lodging will be covered if scheduled training requires an overnight stay at the rate of 50 percent of the per diem authorized under current federal law for the location of the training facility. This category of subsistence may be waived if the individual is able to stay with family or friends located in the area of the training facility;

3. Subsistence payments for transportation, meals and incidental expenses may not be waived to make the training plan more affordable.

4. Subsistence begins on the day the participant leaves his/her home for the training and ends the day he/she returns. The individual is paid subsistence for each day he/she has classes. If the participant has classes on Friday and again on the following Monday, he/she is paid subsistence for Saturday and Sunday. If he/she chooses to return home on the weekend, he/she shall not receive a subsistence payment for Saturday and Sunday, nor the travel cost for the additional trip.

5. Variations of Subsistence payments

A. If a participant travels over 50 miles one way to the training facility and chooses not to stay overnight and commutes daily in lieu of subsistence, the cost of travel versus subsistence shall be considered and the participant shall be paid the lesser of the two amounts.

B. Payments for subsistence under these circumstances shall not exceed the lesser of:

(1) The individual’s actual expenses for subsistence; or

(2) 50% of the per diem rate for the area of the training facility; or

(3) Payment for travel expenses at the prevailing mileage rate authorized under the federal travel regulations for purposes of subsistence.

6. Subsistence payments may be made in advance upon request of the individual if it is determined that such advance is necessary to enable the individual to accept training. An adjustment shall be made if the amount of the advance is less or more than the amount to which the trainee is entitled under the Act.

SECTION 10: JOB SEARCH ALLOWANCES

A job search allowance shall be granted to an adversely affected individual to assist the individual in securing a job within the United States, including Alaska, Hawaii and Puerto Rico.

1. An application shall be submitted to a CareerCenter Case Manager before the job search begins for the job search allowance to be granted. The job search may not be approved until after the individual who has been totally or partially separated is covered under a certification, as defined in this Chapter.

2. A job search allowance application may be approved only if submitted before:

A. The 365th day after the date of the certification under which the individual is covered, or the 365th day after the date of the individual’s last total separation, whichever is the later; or

B. The 182nd day after the concluding date of approved training.

3. If the individual has a valid job interview set up outside the commuting area, a job search may be approved to the suitable employment opportunity provided the following conditions are met:

A. The commuting area for approval of a job search allowance is more than 50 miles from the individual’s home to the location (company/business) where the interview is scheduled using the most direct route;

B. A timely application is filed;

C. There has been a total separation from adversely affected employment at the time job search begins;

D. Registration is made with the CareerCenter Case Manager which shall furnish the individual with reemployment services;

E. There has been a determination by the CareerCenter Case Manager that the individual has no reasonable expectation for securing suitable employment in the commuting area and has a reasonable expectation of obtaining suitable long-term employment in the area where the job search will be conducted;

F. Completion of the job search is done within a period of time not to exceed 30 days after the day on which the job search began;

G. The CareerCenter Case Manager has received written verification from the employer about the type of employment and the specific interview date and time for the individual.

H. If the job search is approved, the individual will generally be allowed up to three days to search the area for other employment. He/she must have at least one scheduled interview prior to the approval of the job search allowance. Job searches beyond the 3-day limit may be approved if it is deemed the most practical and efficient course by the BES CareerCenter Manager.

I. The individual must document all contacts with employers. All contacts must be submitted with a travel log. All items of the travel itinerary must be documented on the log. These items shall include start and stop times, dates for each day of travel, and starting mileage and ending mileage. All motel/hotel, meal charges and any other travel related costs will be considered only if original receipts are presented.

J. The total job search allowance for any individual for the entire certification period shall not exceed $800 (pre-2002 certifications) or $1250 (post-2002 certification & 80,000+ certifications) or $1500 (#70,000- 79,999 certifications), Reimbursement for any one trip may be for up to 90 percent or 100 percent (for workers covered by petitions 70,000-79,999)of the allowable cost (not to exceed the total cost allowance of $800 or $1250 or $1500).

K. The amount of a job search allowance shall be 90 percent or 100 percent (for workers covered by petitions 70,000-79,999) of the total cost of each of the following transportation and subsistence items:

(1) Allowance for the most cost-effective mode of travel reasonably available shall be approved.

(a) Determination of most cost effective mode of travel is made by using the actual cost of round trip travel by the most economic public transportation that the individual can be expected to take from the individual’s home to the job search area; or the cost per mile at the prevailing mileage rate authorized under the federal travel regulations for round trip travel by the most direct route from the individual’s home to the job search area.

(b) Mileage payments shall be based on actual round trip mileage from the individual’s home to job search area plus a maximum of 20 miles of local travel per day (at the prevailing mileage rate authorized under the federal travel regulations).

(2) Lodging and meals shall not exceed the lesser of the actual cost to the individual of lodging and meals during the job search or 50 percent of the prevailing per diem allowance rate authorized by federal law for the area where the job search is conducted.

SECTION 11: RELOCATION ALLOWANCE

A relocation allowance shall be granted to an adversely affected worker to assist the individual and the individual’s family with relocation within the United States, including Alaska, Hawaii and Puerto Rico. Relocation shall not be granted to more than one member of a family with respect to the same relocation. A relocation allowance may be granted to an individual only once under a certification.

1. An application shall be submitted to the CareerCenter Case Manager before the relocation begins in order for the relocation allowance to be granted, and the relocation may not be approved until after the individual who has been totally or partially separated is covered under a certification.

2. An application for relocation allowance may not be approved unless submitted before:

A. The 425th day after the date of the certification under which the individual is covered, or the 425th day after the date of the individual’s last total separation, whichever is later; or

B. The 182nd day after the concluding date of approved training,

3. If the individual finds suitable employment outside of the commuting area and no suitable employment is available inside the commuting area, a relocation allowance may be approved to the suitable employment opportunity provided the following conditions are met:

A. The worker must travel more than 50 miles from his current home to the new place of employment, using the most direct route. No relocations shall be paid for moves of less than 50 miles;

B. A timely application is filed;

C. There must be a total separation from adversely affected employment at the time relocation begins;

D. Registration is made with the CareerCenter Case Manager which will furnish the individual with reemployment services;

E. A determination must be made by the CareerCenter Case Manager that the individual has no reasonable expectation of securing suitable employment within the commuting area, and the individual has obtained suitable long-term employment or a bona fide offer of suitable employment that is more than 50 miles from the individual’s home.

F. Relocation must be completed within a reasonable period of time. Factors that the CareerCenter Case Manager will consider in determining whether an individual’s relocation is completed in a reasonable time period are:

(1) whether suitable housing is available in the relocation area;

(2) whether the individual can dispose of his/her current residence;

(3) whether the individual or family member is ill; and

(4) whether the individual or family member is transferred to a school in the same area of relocation.

4. The CareerCenter Case Manager must receive written verification of suitable employment from the employer that the individual is employed or that a bona fide offer of employment has been made to the individual and he/she has accepted that offer.

5. Relocation allowable items include:

A. 90 percent or 100 percent (for workers covered by a TAA petitions 70,000‑79.9999) of the travel expenses for the individual and family from the individual’s home to the area of relocation, determined as follows:

(1) Transportation. The most cost effective mode of transportation approved, as determined by using the actual cost of transportation for the individual and family by most economical public transportation that the individual and family can take from the individual’s home to relocation area or the cost per mile at the prevailing mileage rate authorized under the federal travel regulations.

(2) Lodging and meals. The cost allowable shall not exceed the lesser of the actual cost to the individual and family member for lodging and meals while in travel status or 50 percent of the prevailing per diem allowance rate authorized under federal law for the locality to which the relocation is made.

(3) Separate travel allowances for family members who cannot relocate at the same time as the individual receiving relocation shall be computed at 90 percent or 100 percent (whichever applies) of the total cost of such separate travel and included with the total amount to which the individual is entitled. Reasons that may justify separate travel for family members include the family member’s health, schooling or economic circumstances.

B. 90 percent or 100 percent (for workers covered by a TAA petitions 70,000-79,999) of the expenses of moving household goods and personal effects of the individual and family, not to exceed the maximum number of pounds net weight authorized under federal law.

C. A lump sum payment equal to 3 times the individual’s average weekly wage, not to exceed $800 (pre-2002 certifications) or $1250 (post-2002 certifications, 80,000+) or $1500 (for workers covered by a TAA petitions 70,0000-79,999) . The lump sum payment shall be made when arrangements are completed for relocation, but not more than 10 days prior to the anticipated departure.

D. 90 percent or 100 percent (for workers covered by a TAA petition 70,000-79,999) of the total allowable cost for moving the household goods and personal effects of the individual and family utilizing:

(1) The most economical commercial carrier;

(2) Trailer. If the trailer is hauled by private vehicle, the cost per mile at the prevailing mileage rate authorized under the federal travel regulations, or if the trailer is rented, the rental fee for each day required to complete the move;

(3) Rental truck. The rental fee for each day required to complete the move and the necessary fuel for the rental truck paid by the individual; or

(4) House trailer , if the place of residence was a mobile home in the old area and will be moved to the new area.

(a) The allowable cost of moving such house trailer or mobile home shall include the commercial carrier’s charges to move, unblock and re-block the home, ferry charges, bridge, road and tunnel tolls, taxes, fees fixed by the State or local authorities for permits to transport. The cost of insuring the house trailer or mobile home and the personal effects against loss or damage in transit, and temporary storage for up to 60 days is also allowable costs. Private vehicles used to haul a trailer are not included under this section;

(5) For commercial carrier, rental trailer and truck, the individual shall submit at least two estimates of the rental cost, including the cost of insurance (for actual value or $10,000, whichever is less), from the rental agencies prior to approval of any relocation.

6. Upon completion of relocation, whether payment was advanced or not, the individual shall certify the amount expended on the forms furnished by the CareerCenter Case Manager. The individual shall promptly submit to the CareerCenter Case Manager all receipts of the itemized expenses incurred in the relocation.

SECTION 12: DETERMINATION/REDETERMINATION PROCESS

1. An individual’s official eligibility determination to participate in the TAA program is initiated by completing a “Request for Determination of Initial Entitlement to TAA/TRA.” Upon completion of the Request for Determination, the individual shall also be advised of the services available through the TAA program, including supportive services, transportation allowances, subsistence payments, job search allowances and relocation allowances.

2. The completed form is submitted to the TRA Coordinator at the Bureau of Unemployment Compensation, who verifies employment information with the worker’s employer to determine if the individual meets the necessary separation criteria and then determines the program and monetary eligibility.

A. Assistance shall be provided for the completion of all TAA Program related forms. In most instances, group sessions will be held to assist individuals with completing the forms.

B. Once completed, the forms shall be forwarded to the TRA Coordinator. A determination of the Request for Determination of Initial Entitlement to TAA/TRA shall be made within 10 working days from the receipt date or separation date, whichever is later.

C. Once a determination is made, the TRA Coordinator shall mail to the individual a copy of his/her TAA and TRA approval or denial. Appeal rights in cases of denials shall be clearly designated on the determination forms sent to the individual.

3. An individual who has been laid off or who is an adversely affected incumbent worker covered by a TAA petition filed on or after May 18, 2009, seeking to participate in the TAA program must meet specific eligibility criteria as follows:

A There must have been a layoff or threat of total or partial separation from the firm for lack of work initiated by the employer and expected to be a definite or indefinite period of not less than seven (7) consecutive days;

B. The separation must have occurred or be expected to occur on or after the impact date stipulated in the certification;

C. The separation must occur or be expected to occur before the expiration or termination date of the petition, whichever is stipulated in the certification.

D. The individual is identified as a member of the group of workers approved under the certification.

4. The CareerCenter Case Manager shall notify the individual in writing of any decision as to entitlements for the Trade Adjustment Assistance (TAA) program, including, but not limited to, decisions with respect to eligibility for services, subsistence, transportation, re-employment services and allowances. Each decision shall inform the individual of the reason for the decision and of the right of appeal under the applicable Maine law. The individual shall have 15 days from the date of the decision to file a written appeal with the BES CareerCenter Manager. If no appeal is filed, the decision shall become final agency action.

5. If the individual appeals a decision, the BES CareerCenter Manager shall forward the notice of appeal and all other documentation regarding the decision to the TAA Coordinator at BES. The TAA Coordinator shall review the documentation and investigate the findings contained in the decision. The TAA Coordinator shall have the authority to reverse, modify or take other appropriate action regarding the decision. If the TAA Coordinator determines, after investigation, to take no action, he/she shall immediately provide the notice of appeal, along with all appropriate documentation to a BES representative, who shall track the request for appeal and forward all documentation to the Division of Administrative Hearings.

6. The individual and all parties shall be notified in writing of the date and time of hearing, which may be conducted by telephone. A hearing shall be conducted before an Administrative Hearing Officer, who shall render a written decision.

7. If a party is dissatisfied with the decision of the Administrative Hearing Officer, he/she shall have the right to appeal in writing within 15 days to the Unemployment Insurance Commission. If a hearing is held, the parties shall be notified in writing of the date and time of such hearing, which may be conducted by telephone. The parties shall receive written notice of the Commission’s decision.

8. If a party is dissatisfied with the decision of the Commission, he/she may request the Commission to reconsider its decision, but only if such request for reconsideration is filed in writing within 10 days of receipt of the original Commission decision. Unless an interested party appears at the hearing before the Division of Administrative Hearings or at the Commission hearing, if one was held, he or she may not request reconsideration of the Commission decision, unless such nonappearance was for good cause as determined by the Commission.

9. When the period during which an appeal may be filed under this Chapter ends on a Saturday, Sunday or holiday, the appeal period shall end on the next day which is not a Saturday, Sunday or holiday if the appeal is filed by delivery and is received in-hand by the agency. If the appeal if filed by mailing, however, the appeal period will not be extended, and the appeal must be postmarked within the statutory appeal period, unless the appeal period falls on a Sunday or a holiday, in which case the appeal period will be extended until the next day which is not a Sunday or holiday.

10. Any decision of the Commission becomes final 10 days after receipt of written notification and any person aggrieved by the decision may appeal by commencing an action pursuant to the Maine Administrative Procedure Act.

SECTION 13: ALTERNATIVE TRADE ADJUSTMENT ASSISTANCE FOR OLDER WORKERS (ATAA) (applies to workers covered by TAA/ATAA petitions filed before May 18, 2009)

1. Applicability. This section applies to groups of workers certified by the United States Department of Labor as eligible to apply for ATAA pursuant to a TAA/ATAA petition filed before May 18, 2009 or numbered 80,000 – 80,999.

2. Application and determination. An application for ATAA must be filed within two years of the first day of qualifying reemployment. The TAA coordinator will make a written determination regarding eligibility within 5 business days of receipt of the application. A worker has the right to appeal an adverse determination in accordance with the procedure established in Section 12, paragraphs 4-10.

3. Eligibility. To be eligible for ATAA an individual must, at the time of reemployment:

A. Be a member of a group of workers certified to apply for ATAA under the Trade Act.

B. Be at least 50 at the time of reemployment.

C. Obtain reemployment by the last day of the 26th week after the worker's qualifying separation from the TAA/ATAA certified employment.

D. Be expected to earn no more than $50,000 annually in gross wages (excluding overtime pay) from the reemployment.

E. Be reemployed not less than 35 hours per week in one or more jobs, which may include self-employment.

F. Cannot return to work at the employment from which the individual was separated. This means the worker cannot return to the same division or facility from which he or she was separated, nor can the worker return to do the same or similar work for the employer that he or she was separated from in another division or facility.

4. Eligibility period. An individual who continues to meet the eligibility criteria will continue to be paid ATAA benefits until a total of $10,000 in benefits has been received or until two years have elapsed since the individual's first qualifying employment, whichever occurs first. ATAA benefits are not payable during weeks of unemployment. If the individual has a week or more of unemployment and becomes reemployed during the period of eligibility, he or she may complete a new application for ATAA upon being reemployed to determine whether they continue to meet the eligibility criteria.

5. Benefit. The ATAA benefit is equal to 50% of the difference between the annualized wages at separation that the individual earned from the qualifying employment and the annualized wages earned in the new employment that the worker has obtained paid for two years or until $10,000 is paid, whichever occurs first. Annualized wages at separation are computed by multiplying by 52 the individual's hourly rate received during the last full week of work times the number of hours worked during the last full week of work. Annualized wages earned in new employment are calculated using the same method with respect to the first full week of reemployment. These calculations exclude overtime wages and hours. If, during the worker's period of eligibility it is determined as a result of a review that the annualized wages at new employment have changed, the benefit will be adjusted accordingly.

6. Ineligibility for TRA and TAA. Individuals who choose to receive ATAA benefits as a result of a certification may not also receive TRA or TAA benefits for that certification.

SECTION 14: REEMPLOYMENT TRADE ADJUSTMENT ASSISTANCE (RTAA) (applies to workers covered by TAA petitions filed on or after May 18, 2009)

1. Applicability. This section applies to groups of workers certified by the United States Department of Labor as eligible to apply for RTAA pursuant to a TAA petition numbered 70,000-79,999 or 81,000+ or 80,000 choosing the 81,000 rules.

2. Application and determination. An application for RTAA must be filed within two years of the first day of qualifying reemployment. The TAA coordinator will make a written determination regarding eligibility within 5 business days of receipt of the application. A worker has the right to appeal an adverse determination in accordance with the procedure established in Section 12, paragraphs 4-10.

3. Eligibility. To be eligible for RTAA an individual must, at the time of reemployment:

A. Be a member of a group of workers certified to apply TAA under the Trade Act.

B. Be at least 50 at the time of reemployment.

C. Is employed in one or more jobs (which may include self-employment)

at least 35 hours per week and is not enrolled in a TAA training program, or

(ii) at least 20 hours per week and is enrolled full-time in an approved TAA training program, provided that a worker with justifiable cause for failing to participate in training for a week, but is working at least 20 hours may receive RTAA for that week. “Justifiable cause” means such reasons as would justify failing to participate for a reasonable individual in like circumstances, including but not limited to reasons beyond the individual's control and reasons related to the individual's capability to participate in or complete an approved training program.

D. Be expected to earn no more than $55,000(certs 70,000-79,999) or $50,000(certs 81,000+ or 80,000 choosing the 81,000 rules)annually in gross wages (excluding overtime pay) from the reemployment.

E. Is not reemployed at the firm from which the individual was separated.

4. Eligibility period

A. An individual who continues to meet the eligibility criteria and who has not received TRA is eligible for RTAA benefits beginning the earlier of the date on which the individual obtains reemployment or the date on which the individual exhausts all rights to unemployment insurance based upon the most recent separation from adversely affected employment that qualifies the individual as an adversely affected worker; the benefit continues for two years or until $12,000 (certs 70,000-79,999) or $10,000 (certs 81,000+ or 80,000 choosing the 81,000 rules) in benefits have been paid, whichever is sooner.

B. An individual who continues to meet the eligibility criteria and who has received TRA is eligible for RTAA benefits beginning on the date on which the individual obtains reemployment and continuing for two years reduced by the total number of weeks for which the worker received TRA or until the individual's benefit maximum has been paid, whichever is sooner. The benefit maximum is determined by multiplying $12,000 (certs 70,000-79,999) or $10,000 (certs 81,000+ or 80,000 choosing the 81,000 rules)by the ratio of the maximum number of weeks in the individual's eligibility period to 104 weeks. [EXAMPLE: If a worker is eligible for a maximum of 78 weeks of RTAA under this paragraph, then the maximum benefit would be $12,000 * 78/104 = $9,000.]

5. Benefit

A. For an individual reemployed at least 35 hours per week, the RTAA benefit paid during the eligibility period is equal to 50% of the difference between the annualized wages at separation that the individual earned from the qualifying employment and the annualized wages earned in the worker's new employment.

B. For an individual reemployed at least 20 hours per week and enrolled in training, the RTAA benefit is calculated pursuant to paragraph A, except substituting for 50%, a percent equal to ½ of the ratio of the number of weekly hours of new employment to the number of weekly hours of employment at the time of separation. In no case, however, may this exceed 50%. [EXAMPLE: If a worker works 20 hours per week in new employment and had worked 40 hours per week at the employment from which he or she was separated, then the percentage to be applied would be ½ * 20/40 = 25%.]

C. For the purposes of subparagraphs A and B, annualized wages at separation are computed by multiplying by 52 the individual's hourly rate received during the last full week of work times the number of hours worked during the last full week of work. Annualized wages earned in new employment are calculated using the same method with respect to the first full week of reemployment. These calculations exclude overtime wages and hours. If, during the worker's period of eligibility it is determined as a result of a review that the annualized wages at new employment have changed, the benefit will be adjusted accordingly.

6. An individual who received RTAA may not later become eligible for TRA based upon the same certification.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. §2051
• EFFECTIVE DATE: April 19, 2006 – filing 2006-144
• AMENDED: September 6, 2006 – filing 2006-405
• AMENDED: July 3, 2007 – filing 2007-266
• AMENDED: February 3, 2008 – filing 2008-37
• AMENDED: May 11, 2013 – filing 2013-110
• AMENDED: October 28, 2014 – Section 4, filing 2014-263
• AMENDED: APAO WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK: July 17, 2025

Chapter 2 Rule Governing the Competitive Skills Scholarship Program

Code Me. R. 12-597 Ch. 2 Rule Governing the Competitive Skills Scholarship Program {#sec-12-597-ch.-2 omnilex-key=us-me-regs-official--dept-labor--12-597 Ch. 2}

PURPOSE

This rule implements the Competitive Skills Scholarship Program (CSSP) enacted pursuant to PL 2007 Ch. 352 and codified at 26 MRSA chapter 25, subchapter 5. CSSP is intended to provide individuals with access to education, training and support leading to skilled, well-compensated jobs with anticipated high employment demand, to improve the economic well-being of the participants in the program and to provide employers with a skilled labor force.

SECTION I: DEFINITIONS

Applicant means an individual who has applied for CSSP where eligibility may or may not have been determined.

Bridge Program Participant means a high school Junior or Senior enrolled in the Early College and Career and Technical Education Program (ECCTEP).

Bureau is the Maine Department of Labor, Bureau of Employment Services.

Career Plan means, for the purpose of this rule, the individual career plan that is developed by the participant and the CSSP case manager. The Career Plan includes all funding sources planned to meet the participant's needs, including CSSP resources and resources other than CSSP. This rule applies to any Career Plan that includes CSSP funding.

Certified Pre-Apprenticeship Program means a program certified by the Maine Apprenticeship Program pursuant to 26 M.R.S. §3213.

Commuting distance means the 50-mile radius, by road, from the participant's place of residence.

Department is the Maine Department of Labor.

Cohort means a group of students or participants who work through a curriculum or prescribed program together to achieve the same academic degree, certificate or similar credential together.

Cohort Participant Eligibility: The unique guidelines for approved participant eligibility in cohort training

Dependent Applicant means an individual under age 24 who is applying for CSSP assistance and is claimed on another person's taxes.

Dependent child means a child in the applicant's household who is under 19 or a full-time student under age 24 and is being claimed as a dependent on the applicant's or another (included) household members taxes or is a person with a disability of any age and did not provide more than 50% of their own support.

Full Time means participation in an approved education or training program that meets the minimum enrollment or participation requirements established by the Department.

Good Cause means a sufficient reason, or reasons, as determined by the Department of Labor, for the Applicant or Participant to not comply with a CSSP Program requisite, based upon the totality of the circumstances.

High wage, also referred to as high compensation, means median wages that are at or above the median wage for all occupations in Maine.

Household means the applicant or participant and all persons residing in their residence that are related by blood, marriage, domestic partner registration decree of court, or a partner sharing a mutual child, and are the applicant's spouse, registered domestic partner, guardian, parent, partner sharing a mutual child or dependent child. However, the following individuals are considered a separate household of one: a) an applicant who is living with their family, who is not married and who cannot be claimed on another person's taxes b) a disabled individual fourteen (14) years of age or older. (NOTE: An applicant with a disability should only be treated as a separate household if it is necessary to determine their eligibility.)

Independent Applicant means an Applicant who is age 24 or older.

Individual Eligibility means unique guidelines for individual applicants not enrolled in a cohort.

Labor Market Area means a geographic area in Maine where the CSSP applicant or participant resides and/or intends to find employment within commuting distance or through relocation.

Marketable postsecondary degree means a Registered Apprenticeship, credential, license, associate degree, bachelor's degree or a graduate level certification/advanced degree. These degrees demonstrate academic achievement, commitment, and the development of critical and versatile skills such as communication, problem-solving, and analytical thinking that are applicable to a wide range of career paths. A degree is considered unmarketable when:

A) The applicant can show that the credential prepared them for a specific occupation that they are no longer able to perform due to physical or mental health limitations; or

B) The postsecondary degree is not recognized by or equivalent to that which is required by the appropriate professional licensing body in this State; or

C) The applicant can show that the postsecondary degree does not enable the applicant to obtain employment in a labor market that meets the requirements of subsection 4, paragraph A [PL 2025, c. 396, §3 (NEW).]; or

D) A degree that is oriented toward an occupation absent from the local labor market may be considered unmarketable when the applicant demonstrates that the credential lacks transferable skills applicable to other viable employment options.

E) The applicant can show that the associate degree or certification does not provide preparation for direct entry into a specific occupation or career field. Examples include general or exploratory programs such as Liberal Arts, Liberal Studies, General Studies, Interdisciplinary Studies, and similar programs that are primarily preparatory in nature and intended to support transfer, future specialization, or admission into another program of study rather than immediate employment. All bachelor's degrees and higher-level degrees are considered marketable.

Occupation in significant demand means an occupation identified on the CSSP High-Wage, In-Demand (HWID) list, developed by the Maine Department of Labor in partnership with the Center for Workforce Research and Information. The HWID list identifies occupations that meet the Department's criteria for both demand and wages. "In demand" occupations are those projected to have more than 20 annual openings based on occupational employment projections, and "high wage" occupations are those with a median wage at or above the statewide median wage for all occupations. The HWID list also identifies occupations added through the CSSP petition process. The CSSP HWID list, including the applicable criteria and explanatory notes, is maintained on the CSSP website.

Participant means an eligible individual enrolled in the program.

Part-time means participation below the full-time threshold but at or above the minimum level established by the Department for program participation.

Registered Apprenticeship Program means the Maine Apprenticeship Program established in Title 26 §3202.

Resident means that you are living in Maine and intend to remain here. Individuals with Nonimmigrant Visas who have entered the United States on a temporary basis - for tourism, medical treatment, business, temporary work, study, or other similar reasons are not eligible to apply for or participate in CSSP unless the individual is pursuing a lawful process to apply for immigration relief such as seeking asylum.

Under Employed means someone who is working part-time, seasonal, temporary, or short-term survival jobs; working fewer than 30 hours per week while seeking full-time employment; or employed in a position that does not adequately match their skills, experience, or training.

Written or writing means writing on paper or in electronic format such as email.

SECTION II: ELIGIBILITY

Individual Eligibility

Criteria

Within the limits of available program resources (taking into account ongoing commitments to current participants), an applicant will be eligible for CSSP if the applicant applying for CSSP meets the following:

1. Resident of and lives in Maine;

2. Is at least 18 years of age or has graduated from high school, or is enrolled in the Early College and Career and Technical Education Program (ECCTEP);

3. Does not already have a marketable postsecondary degree, industry recognized credential, or vocational certificate or license;

4. Has income of less than 275% of the poverty level for the family size as calculated in Section II.A.2 or, at the time of application, the individual or a dependent living in the individual’s household is receiving assistance from the Supplemental Nutrition Assistance Program (SNAP); the MaineCare program; the Temporary Assistance for Needy Families (TANF) program; Reception and Placement (R&P), Refugee Cash Assistance program, Supplemental Security Income (SSI) program; or the Home Energy Assistance Program (HEAP) the fuel assistance program under Title 30-A, section 4991;

5. Is seeking education or training that results in an industry recognized credential, associate degree or bachelor's degree for an occupation approved according to Section 4; or is participating in a registered apprenticeship program pursuant to Title 26, Chapter 37, or is a certified pre-apprentice pursuing enrollment in a Maine Registered Apprenticeship Program; and

6. Has the aptitude to undertake and complete education or training as determined by the institution providing the education or training.

7. Determining Individual Financial Eligibility

An applicant is financially eligible for CSSP when the applicant's household income, other than excluded income, is below 275% of the federal poverty guidelines. When determining the income of the applicant's household.

Family. The income and the size of the family are determined by the members of the household at the time of application.

Household income. The CSSP case manager calculates household income using income received during four consecutive weeks that reasonably reflect the household's financial circumstances at the time of application. The four-week period used for the calculation should be consistent for all household members to the extent practicable. The calculation includes the income of each household member, except dependent children, excludes income that is no longer received, and includes or excludes sources of income as provided in this section. If the four-week period does not accurately reflect the income anticipated in the future, the CSSP case manager may use documentation and other information provided by the applicant to make a reasonable estimate of anticipated household income.

Household income for Dependent Applicant. When calculating household income of a dependent applicant, the CSSP case manager will determine eligibility based on the household of the adult who is claiming the dependent. The household members and the dependent applicant's income will be included when calculating household income. Dependent applicants are not eligible for CSSP Stipend. Applicants under age 24 will be required to provide current documents such as taxes, FAFSA, or Dependency Override Approval from financial aid to determine eligibility if wishing to be determined as an Independent Applicant. Income of dependent children in the household (who are not the CSSP applicant) will not be included when calculating household income or when determining eligibility for CSSP stipend.

Includable & Excludable Income

Included income: Unless specifically excluded, include all regular income of all household members, except dependent children and dependent CSSP Bridge applicants, including the following:

Alimony

Dividends/Interest

Government/Military Retirement

Military Family Allotments

Net Gambling or Lottery Winnings

Net Rental Income/Net Royalties

Other Regular Support Pensions – Private

Paid Family Medical Leave (PFML)

Periodic Receipts from Estates or Trusts

Regular Insurance/ Annuity Payments

Regular Payments from Social Security (Retirement)

Railroad Retirement

Strike Benefits from Unions

Training Stipends (but not Competitive Skills Scholarship training stipends)

Wages and Salaries before Deductions Net Self-Employment

Wages Subsidized by On-The-Job (OJT) Contracts

Workers' Compensation

Excluded Income. The following income is excluded in determining household income:

All federal and state need-based financial aid resources granted through the financial aid award process

All non-recurring lump sum income

AmeriCorps Living Allowances

Any income that the household no longer receives.

Assets Withdrawn from a Bank Sale of Property/House/Car

Capital Gains

Child Support Payments

Disability Insurance (SSDI)

Earned Income Tax Credit

Field Placements (internships, externships and practicums)

Food/Housing Received in Lieu of Wages

Food Stamps (SNAP)*

Foster Care Child Payments

General Assistance

Gifts

Home Energy Assistance (HEAP) *

Housing Assistance

Medicare (MaineCare)*

Medicaid

Loans

Lump-Sum Inheritances

Non-Cash Benefits, including, but not limited to Employer Paid Fringe Benefits One-time Income of dependent children

Income earned while the veteran was on active military duty and certain other veterans benefits, i.e., compensation for service-connected disability, compensation for service-connected death, vocational rehabilitation, and education assistance.

Insurance Payments

One-time Compensation Payments for Injuries

Reception and Placement (R&P)*

Refugee Cash Assistance*

Social Security Old Age Survivors Insurance (OASI) & Survivor's Benefit Payments

School Meals

Supplemental Security Income (SSI)

Student Loans

Trade Adjustment Assistance/Trade Readjustment Allowances (TAA/TRA)

Tax Refunds

Temporary Assistance for Needy Families (TANF)*

Unemployment Compensation

*See categorical eligibility below.

Categorical Eligibility. If the individual or a dependent living in the individual’s household is receiving assistance from Temporary Assistance for Needy Families (TANF), Food Stamps (SNAP), Reception and Placement (R&P), Refugee Cash Assistance, MaineCare, Supplemental Security Income (SSI) or the Home Energy Assistance Program (HEAP) the individual will be categorically deemed to meet the financial eligibility criteria of CSSP per 26 M.R.S. § 2033(2)(C).

3. Verification.

Verification of facts relevant to CSSP eligibility criteria is accomplished using the same procedures as is required in Maine by the Workforce Innovation and Opportunity Act (WIOA), except that the previous four weeks of included income must be verified with documentation (for example, wage stubs or an employer's statement or other documentation).

Identity and Age Verification. For verification of age and identity, you must provide one (1) photo identification document. Photo identification must show your name, date of birth and photograph.

Identification can be any document from the following list:

• • Driver's license or ID card issued by a State or outlying possession of the United States provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address - ID card issued by federal, state or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address - Passport or Passport Card - Permanent resident card or Alien Registration Receipt Card (Form 1-551) - Employment Authorization Document that contains a photograph (Form 1-766) - Refugee Travel Document - School ID card with a photograph - US Military card or draft record - Military dependent's ID card - US Coast Guard Merchant Mariner Card - Native American tribal document - Driver's license issued by a Canadian government authority - For persons under age 18 who are unable to present a document listed above: - School record or report card - Clinic, doctor or hospital record - Daycare or nursery school record - Other documentation approved by the Bureau

b. Maine Residency Verification: Maine Residency document can be any current document selected from the following list that confirms the applicant's current name and physical Maine address:

• • Maine Driver's license with a physical address - Maine BMV Identification card - Maine Vehicle Registration - Utility Bill - electric bill, water/sewer bill,cell phone bill, etc. - Maine Resident Hunting or Fishing License - Contract in the applicant's name- mortgage agreement, lease, insurance policy, insurance ID card - Tax bill - Tax return - Paycheck stub - W-2 - Rent receipt - Property tax bills - Document issued by a government entity - Conditional order of restoration - For those that do not have a valid license - Other documentation approved by the Bureau

c. Household Income Verification

• • Paystubs or employer payroll statement (for all family members excluding dependent children) documenting gross income (before taxes). In the event that the household has no income and receives no qualified benefits, self-declaration of income form for the applicant and household will be completed and considered. - Applicants or a dependent in the applicant’s household receiving Temporary Assistance for Needy Families (TANF) or Food Stamps (SNAP) or MaineCare can provide a current Department of Health and Human Services (DHHS) Notice of Decision (NOD), digital copy or printout of their portal showing receipt of benefits or other reasonable evidence of continued receipt of benefits, e.g. bank statement showing automatic deposit must be dated within 30 days prior to the CSSP application. - Applicants or a dependent in the applicant’s household receiving the Reception and Placement (R&P) or Refugee Cash Assistance can provide Office of Maine Refugee Services (OMRS) Verification. Verification document must be dated within 30 days prior to the CSSP application. - Applicant or a dependent living in the applicant’s household receiving Supplemental Security Income, Home Energy Assistance (HEAP) can provide current documentation confirming receipt of benefits must be dated within 30 days prior to the CSSP application.

CSSP Cohort Eligibility

Cohort-based training is a structured training or education program designed to prepare a group of participants for specific occupations or industry sectors as indicated on CSSP HWID list. Such or industry sectors identified by the Department. The cohort model is strengthened by a dedicated facilitator who intentionally promotes peer collaboration and creates a supportive learning environment. Cohort programs must prioritize recruitment of populations identified in 26 M.R.S. § 2033, sub-§ 5-B. Individuals participating in a cohort approved by the Commissioner are eligible for all program services available under the CSSP for which they otherwise qualify in accordance with these rules.

The Department will partner with public post-secondary education institutions and/or procure cohort-based training through a competitive solicitation process in accordance with State procurement regulations.

To be eligible for funding, a cohort training program must:

Result in an industry recognized credential, associate degree or bachelor's degree for an occupation approved on the CSSP high-wage, in-demand list.

Be aligned with identified state's economic development priorities (e.g., 10 -year plan, WIOA state plan); State Plan) and have at least 20 annual job openings per HWID list or as recommended by the Commissioner.

Prioritize serving the populations identified in 26 M.R.S. §2033, sub-§5-B.

Demonstrate alignment with employer hiring needs for priority occupations by: documenting employer demand, confirming that the credential is recognized by employers in the occupation, and verifying that the program’s curriculum delivers the competencies required for employment and consistent with the intent of the recognized postsecondary credential.

Not supplant existing funding sources.

The Department shall establish application procedures, evaluation criteria, reporting requirements, allowable costs, performance expectations, participant recruitment requirements, and other program requirements through the applicable competitive solicitation. Entities eligible to submit an application shall electronically submit an application with details to be provided in the announcement.

1. Period of eligibility

Once an applicant is determined eligible for and enrolled in CSSP, the individual remains eligible until completion of their education and training program pursuant to Section 6.G, termination from the program pursuant to Section 6.H, or voluntary withdrawal from CSSP. Any period of participation in the CSSP program during a prior enrollment will be credited toward the individual’s total time period of eligibility upon reapplication; the eligibility clock. Prior participation does not extend or restart the individual's period of eligibility.

1. Termination from CSSP

A participant shall be terminated from CSSP if the training provider has determined that the student no longer meets the qualifications required to remain enrolled in the program, the participant voluntarily withdraws from CSSP or from their approved education or training program, falsifies, or misrepresents CSSP eligibility, training, or support service need, or has misused funds or refused to cooperate pursuant to Section 6. Participants who are terminated from CSSP for intentionally falsifying or misrepresenting information under Section 2.3 are not eligible to reapply to CSSP. No CSSP case manager may send a notice of termination from CSSP before their supervisor has reviewed the matter and approved.

1. Emergency Leave or Gap in Program Services

Participants may request to be placed in a gap for a maximum of 52 weeks. While placed in a gap, the participant will not be eligible to receive any CSSP program services. Participants terminated due to exhausting allowable gap-time have the option to reapply to the CSSP program during an open application period

SECTION 3. APPLICATION AND DECISION

Application

Applications will be made available to individuals via the CareerCenter website (https://www.myworksourcemaine.gov/pages/cssp) as funding and training opportunities are available. Applications must be submitted electronically from the CSSP website or, if necessary, a paper application can be obtained from a CareerCenter and returned by mail or hand delivered to a CareerCenter. Applicants under the age of 18 must have their application signed by a parent or legal guardian, except in the case of emancipated minors. Applications submitted more than six months in advance of the applicant's intended start of their education or training program will not be considered for CSSP.

Eligibility determination.

Eligibility is determined by the following process

Stage One - Initial Eligibility Screening: Review of initial application to determine that applicant appears to meet eligibility requirements for identity/age, Maine residency, and household income.

Stage Two - Verification of Eligibility and Credential Review: The CSSP case manager communicates with the applicant to confirm the education/training desired is an occupation on the CSSP High-Wage In-Demand (HWID) list. If the occupation the individual requests is not on the HWID list, the individual will be guided in petitioning for a determination of whether their chosen occupation may be approved in accordance with Section 4 (l)(C). Verification documents confirming Stage 1 eligibility will be collected during this stage and the applicant will be required to complete their Maine Job Link demographic profile if not already completed. Any prior earned degrees or certifications will be reviewed for marketability pursuant to Section 1.18. Confirmation of marketability may involve gathering evidence such as documentation from an approved medical or mental health professional, copy of a degree, prior licensing information, testing results, transcripts, credential evaluation, employer statement, current job postings and occupation wage rates. CSSP funds must be available to assist in credential evaluation/translation if other resources are not available. If the assessment during Stage 2 determines the applicant lacks a marketable certification or degree pursuant to Section 1.18, their employment goal meets the criteria of Section 4 and all required verification documents have been provided, Stage 3, the final stage will begin.

Stage Three - Career Plan Development: An applicant who meets the CSSP eligibility will work with the CSSP case manager to develop a Career Plan. Once the Career Plan is developed, agreed upon and signed by the applicant and CSSP case manager, the applicant is considered enrolled and a Participant in CSSP. Allowable services, including tuition, books, fees, stipends, childcare, and transportation, for which the Participant is determined eligible may be provided retroactively to the date of application or the date there is demonstrated need for the service, whichever is later, in accordance with applicable program requirements.

Decisions

Any decision regarding eligibility, risk of termination from the program or final decisions to terminate must be in writing, must be sufficiently specific for the applicant or participant to understand why the decision is being made and delivered electronically or mailed to the applicant or participant based on their preference. All such decisions will include a “Notice of the Right to Appeal” pursuant to Section 7.

SECTION 4: HIGH COMPENSATION OCCUPATIONS WITH DEMAND FOR SKILLED LABOR

Choosing industries and occupations

The education or training provided through CSSP must be for full-time employment with high compensation occupations with significant demand for skilled labor in Maine. The industries that meet these criteria are chosen by the following process.

Review of Statewide recommendations

At least bi-annually, the Commissioner will review recommendations and labor market analysis from the Maine Department of Labor's Center for Workforce Research and Information (CWRI) listing high compensation occupations in significant demand in Maine, will seek a recommendation from the State Workforce Investment Board, and will approve a final list (hereinafter referred to as the "occupations list") bi-annually. Once approved, the list will be posted on the Maine Career Center website (www.myworksourcemaine.gov) on the Competitive Skills Scholarship Page.

Regional and industry specific recommendations

If a regional organization, including a Local Workforce Investment Board established pursuant to the Workforce Innovation and Opportunity Act (WIOA), a business or business organization, industry partnership, an educational institution, a labor organization or similar group, perceives a demand for an occupation or occupations with high compensation in their region that are not included on the approved occupations list, they may petition the Commissioner by sending a letter of request with supporting evidence of high demand and high compensation to include them.

Individual petition

An applicant who seeks to pursue training or education for an occupation in Maine that is not on the occupations list, may petition by letter the Director of the Bureau of Employment Services for a determination that the education or training that they seek may be supported by CSSP. The petition will be granted if the applicant can demonstrate that the occupation offers high compensation and is in sufficient demand that the applicant is likely to find employment in the region(s) where they intend to seek work. To demonstrate demand, applicants must include documented evidence from at least one employer that the occupation being requested for inclusion on the approved occupations list is a high-wage, high demand occupation in Maine.

Honoring educational commitments

The removal of an occupation from a list applies only to those newly eligible for CSSP and does not apply to participants enrolled in CSSP before the occupation was removed.

Informing Applicants and Participants.

The Maine occupations list and a list of services provided by CSSP must be provided to every CSSP applicant or participant prior to the development of the Career Plan.

Credential Evaluation of Foreign Degree

If otherwise eligible, CSSP funds will be made available to assist individuals licensed in other states or foreign countries in evaluating whether their current license, certificate, degree or similar occupational credential will be recognized in Maine. If it is determined that the degree is not marketable in Maine, the individual will be eligible to receive CSSP training and support service assistance for a high-wage in-demand (HWID) occupation in accordance with this Chapter. If the credential evaluation determines that the current degree or credential is marketable, but the individual has not been successful in obtaining employment in the credentialed occupation, they will be given the opportunity to work with a CareerCenter Consultant who will provide one-on-one job search assistance to assist them in finding employment in that occupation. If this assisted job search does not result in employment related to the individual's credentialed occupation, or it is determined that additional education, training or licensing is required for their credential to be recognized, CSSP services must be made available to the individual to obtain the additional education, training or licensing necessary to obtain employment in that occupation in Maine.

SECTION 5: NO SUPPLANTATION; MAXIMIZING USE OF OTHER RESOURCES

No supplantation

Competitive Skills Scholarship Funds (CSSF) and other sources of funding available to assist people pursuing post-secondary education shall be leveraged/combined whenever possible to maximize available dollars.

1. TAA and TRA. Individuals eligible for Trade Adjustment Assistance (TAA) must exhaust all other resources needed to participate successfully in their training program. If a participant receiving TAA needs a support service that is not available under TAA in order to participate successfully in their training program, eligibility for that support service under CSSP may be determined. Persons eligible for a Trade Readjustment Allowance (TRA) are not eligible for the CSSP training stipend under Section 6.H of this rule. The CSSP case manager will determine whether applicants to CSSP may be eligible for TAA or a TRA allowance.
2. WIOA. CSSP participants may be enrolled in both Workforce Innovation and Opportunity Act (WIOA) and CSSP. Taking into account written local WIOA policies and CSSP rules, each program's career plan should maximize the availability of education, training and related support services from both funding sources. For WIOA enrolled participants eligible for CSSP, written documentation must be obtained by participant case managers from the WIOA service provider that education, training and support service funds have been exhausted. This documentation is required before CSSP funds may be used to support a current WIOA funded career plan.
3. Dislocated Worker Benefits (DWB). Applicants and participants who are likely to be eligible for Dislocated Worker Benefits must apply for those benefits. If a participant is determined eligible for DWB, the participant is not eligible for the CSSP training stipend.
4. Vocational Rehabilitation. If an applicant or participant who has a disability is eligible for funding from Vocational Rehabilitation (VR) or a similar program that assists in providing education or training, then, to the extent that funding is available in a manner that does not delay commencement of their program, VR funding may be obtained. CSSP services necessary to participate in the education or training program and that are not available through VR may be provided. CSSP case managers must assist those with a disability in accessing other programs that may assist them with education, training, and support expenses in addition to assisting in access to CSSP.
5. Parents as Scholars. Parents who receive Temporary Assistance for Needy Families (TANF) will be required to apply for Parents as Scholars (PaS) which provides support for education like CSSP by contacting their Maine Department of Health and Human Services (DHHS) case worker.
6. Financial Aid. Aid from CSSP must be calculated only after all other federal, state and campus-based sources of financial aid (not including loans or federal work study) have been considered. Applications for Free Application for Federal Student Aid (FAFSA) are required. Student loans are not required to participate in CSSP and the decision to apply for student loan assistance is left to the discretion of the CSSP participant to cover unmet costs of participation in their education and training program. If the financial aid administrator confirms in writing that an application for federal financial aid would be futile then the applicant or participant need not apply and CSSP may assist.

Identifying Non-CSSP Supports.

The CSSP case manager and the applicant or participant must identify other sources of support in addition to CSSP that are available and required to participate in their education or training program.

Documentation.

Support from programs other than the CSSP to which the participant has been referred, has applied for, receives, or expects to receive must be documented in the Career Plan.

SECTION 6: CAREER PLAN

Informed Career Planning; Individual Career Plan

For purposes of this rule, the Career Plan is the individual career plan that is developed by the participant and CSSP case manager. The Career Plan includes all funding sources planned to meet the participant’s needs, including CSSP resources and resources other than CSSP. Those Individual Career Plans that include CSSP funding must comply with this rule. CSSP case managers must endeavor to assure that all applicants and participants, before their Career Plans are developed, are fully informed of the opportunities available to them through CSSP as well as through other programs. In addition to the occupations established in Section 4, applicants and participants must be provided, in writing, with a complete list of education, training and support services available through CSSP so that need for services can be determined per Section 6.H. A list of the same services must also be made available to CareerCenter customers so they may understand the opportunities available if they wish to apply. The Career Plan and any amendments to a Career Plan must be signed and a copy provided to the participant. Updates to the Career Plan require participant and CSSP case manager signatures, and if needed, translation of the document or use of language interpreter. The Career Plan must document outcomes pursuant to Section 6 including but not limited to; the participants employment goal, the postsecondary certificate, degree or industry recognized credential the participant seeks, any remedial, English language learner, pre­ requisite or refresher courses the participant will take, the length of time the participant expects to take to complete their education or training including pre-requisites pursuant to Section 6.H, an enumerated list of education, training and support services with their estimated costs that CSSP will provide financial aid forms and other supports.

Timing

The Career Plan must be created within thirty (30) days from the application determination. Services provided under the Plan and enrollment in CSSP commence as a participant when the career plan is reviewed and approved by the CSSP Program Manager or the Program Manager's designee, signed by the CSSP applicant and the CSSP case manager. Allowable services may be provided retroactively as provided in Eligibility Determination Section.

Comprehensive Assessment.

The comprehensive assessment assists the applicant and CSSP case manager in understanding the applicant's education and training and support service needs. The CSSP case manager will work with the applicant to:

Verify the applicant is admitted to a diploma, certificate, or degree program at an education or training institution that is eligible to receive financial aid funds under the Higher Education Act or in a CSSP approved certificate or industry recognized training provider program.

Assess, determine the need for and list the various supports including total costs of all support services that may be available within and outside of CSSP that are necessary for the applicant to succeed educationally and survive financially during the course of their education.

Determine if pre-requisite, developmental, English language learner or refresher courses and high school diploma or a high school equivalency diploma and the minimum requirements of the education and training program can be met within the 52-week time period. Such courses, if needed for successful participation, must be included in the applicant's plan, and paid for by CSSP if other sources (not including federal financial aid) are not available.

As necessary, assess the applicant’s education, training, and employment goals, including career interests; high-wage and significant-demand employment opportunities within their labor market; academic preparation and skills related to the training program and occupation; transferable work skills; potential barriers that may affect participation or employment. supports needed for successful participation; and reemployment services needed to prepare for job search. The CSSP case manager will support an accommodation will be needed in requesting accommodations from the training provider, when needed, to successfully participate.

Selecting an employment, occupational and education or training goal

The applicant selects their employment, occupational and related education or training goal that is within their current or planned labor market area. The applicant's goal must be within the occupations in significant demand established in Section 4. CSSP will support the education or training needed to achieve that goal if it results in a postsecondary certificate, undergraduate degree, industry-recognized credential, apprenticeship, pre-apprenticeship, or similar credential that is recognized and accepted by the relevant trade, industry, or employers and provides access to a career pathway leading to improved capacity to earn wages and benefits.

The selected education or training program must be cost effective and support the applicant’s ability to successfully complete the program and achieve their employment goal. Cost effectiveness may be demonstrated through consideration of factors including program cost, program quality, transferability of credits or prior learning, availability of financial resources, alignment with the applicant’s career goal, and the likelihood of successful completion and employment.

A program is a postsecondary program if a person entering it has a high school diploma, or a high school equivalency diploma before they enter the program that will grant the credential she or he seeks. The following information, to be stated in the Career Plan will be collected by the CSSP case manager in consultation with the participant:

The occupational goal and the education or training required to meet that goal.

Degree or credential expected at time of completion.

Services and support to be provided under the plan.

Selection of education or training program.

Training providers will be selected based on cost-effectiveness. Cost effectiveness is not limited to the lowest-cost option, but may consider factors including program quality, alignment with the applicant’s career goals, transferability of credits or prior learning, ability to successfully complete the program, and the applicant’s overall financial plan, including available CSSP support and other resources. Documented scholarship/financial aid packages offered and/or improved access to required courses, clinical placements or internships will be considered when determining the cost effectiveness. Programs must meet one of the following criteria: Be on the State WIOA eligible provider list, recognized by trade or industry associations, endorsed by a consortium of employers to address a skills gap, recognized and accepted by a professional licensing board or be accredited by a regional or national accrediting body recognized by the U.S. Department of Education. All participating education or training programs must offer degrees, licenses or be recognized as preparing someone to meet their professional licensing requirements; industry-employer recognized certificate(s) or credential(s).

For any developmental, prerequisite, English Language Leamer or refresher program priority will be given to Maine Adult Education and the College Transitions Program or programs approved by the Department that are the most cost effective. CSSP funds must be made available and expenditures from the participant's federal financial aid award to cover these costs will be avoided to the extent possible.

The duration of developmental, prerequisite, English Language Leamer or refresher courses must relate directly to the participant's education or training program as developed through the assessment and shall not exceed 52 weeks in duration from the date of enrollment in the first course.

Location of Training

• 1. Training programs located outside of Maine shall not be approved unless appropriate training is not available within the state and within the participant's commuting area pursuant to Section 1.6. Training programs located outside the State of Maine may be approved if the training program is within the participant's commuting area. Any training program conducted at a location outside the United States is not allowed unless it is in Canada and within the applicant's commuting area. 2. Virtual courses or programs, regardless of their base of operations are considered within the participant's commuting area.

Duration of Education or Training

The participant must take part in year-round training as classes are available by the training institution. Participants in postsecondary degree and certificate programs must complete their education or training program within the following timeframes: 6 years for a bachelor's degree; 3 years for an associate degree and 18 months for a one-year diploma or certificate program. Class time begins with the first day of the first week of training. Participants in non-degree or certificate programs or other non-postsecondary training programs must complete their education and training program within the time defined by the training provider. If the participant requires developmental, English Language Learner, refresher, or prerequisite education, or is enrolled in a Certified Pre-Apprenticeship Program, then, to the extent required, the maximum duration may be extended up to an additional 52 weeks beginning with the first day of class.

A participant who began in CSSP may pursue an additional certificate, credential, or associate degree if the additional education so long as the total length of the program to attain the degree does not exceed the 18 month, 3, or 6 year respective timeframes.

Participants who want to change their major or degree program must request approval prior to completing their initial CSSP approved program.

To be eligible for an extension from an associate to a bachelors' degree or to change a major or degree:

1. The CSSP Participant must currently hold a cumulative GPA of at least 3.0 in their major - degree related courses. Good cause may be granted under exceptional circumstances)..
2. The degree or credential that the participant wants to extend for and/or change major/degree for must be on the current high-wage in-demand list;
3. CSSP will consider supporting/approving a change in major only once over the course of a participant's enrollment in the CSSP program. Good Cause may be granted under exceptional circumstances;
4. The participant must be accepted into their bachelor degree program of study by the time they graduate from their associate degree, or for a change in major/degree the participant must be accepted into their new major/degree program prior to approval;
5. The participant must request the extension/change prior to graduation from their initial program;
6. The total length of the program cannot exceed that which is permitted for a person seeking a two-year or four-year degree.

The Director of the Bureau of Employment Services, the Commissioner or the Deputy Commissioner of the Department may waive or extend the provision if exceptional circumstances are shown.

CSSP funds may not be used to assist participants in obtaining their master's or doctorate degree.

CSSP Education, Training, and Support Services

Provisions applicable to all CSSP services

• • 1. CSSP provides education, training, and support services, as provided in this rule, that are not reasonably available from another publicly available source and that are necessary for participants to successfully complete the education and training program established in the career plan. All costs for services and goods must be pre-approved and verified with documentation before they are paid by CSSP. 2. CSSP funds will be made available to assist with the costs for an educational transcript, credential evaluation or similar requirement needed to determine eligibility for the program for any applicant who is otherwise eligible for participation, as determined by the department, if funds are not reasonably available from another source for this purpose. 3. CSSP assistance must not exceed that which is necessary for the individual to participate in their plan. Any career plan resulting in totals for a participant for a state fiscal year cost (except for the cost of CSSP stipends, transportation, necessary service or need and the cost of childcare described in Section 6.4) projected to be greater than $10,000 for a full-time student and $5,000 for a less than full time student must be approved by the Director of the Bureau of Employment Services, the Commissioner, or the Deputy Commissioner. 4. Any documented and substantiated knowing and intentional misuse of funds, purchased goods, services, and/or knowingly and intentionally falsifying or misrepresenting CSSP eligibility information and/or need for training or support services by a participant will be grounds for termination from the program. 5. CSSP participants are required to cooperate in providing information available to them for the purpose of investigation of Section 6.H and CSSP quality or financial control audits. Failure to cooperate is grounds for termination from the program. 6. CSSP services may be adjusted and provisions in this Chapter may be disregarded to the extent necessary to reasonably accommodate a person with a physical or mental disability pursuant to the Americans with Disabilities Act and Maine's Human Rights Act. Such adjustments must be approved by the CSSP case manager's supervisor and noted in the Career Plan.

Student Aid.

Delivery of CSSP education, training and support services must be structured in a manner that maximizes other sources of student financial aid, excluding loans. For CSSP services that are also included in the cost of attendance, as defined by the institution, CSSP will cover unmet needs as determined by the institution after all other public and private sources of grant aid, including institutional aid, have been applied, to the extent permitted by this rule. If financial aid is available, CSSP case managers must refer participants to the financial aid offices of the education and training institution involved and as needed, to other organizations that may assist in helping with the financial aid process. To maximize financial aid the CSSP case manager and the participant must consider:

• • 1. Whether to request the financial aid office to exercise professional judgment in calculating the student's financial aid. (A list of reasons for which professional judgment may be exercised will be provided to the participant and the CSSP case manager.) 2. How much, if there is any “unmet need" the participant has when determining their financial aid and how much of the financial aid package is in the form of loans. 3. The costs counted towards the cost of attendance in determining the financial aid. 4. Incurring student loans to cover education and training programs costs otherwise not covered by CSSP and other sources of state and federal aid is at the discretion of the participant.

Allowable Expenditures Included in the CSSP Annual Cap

CSSP funds used for the following supports are INCLUDED in the CSSP Annual Cap of $10,000 for a full­ time student and $5,000 for a part-time student.

• • 1. Tuition and fees: CSSP may assist with tuition, on-campus room and board, and mandatory fees. 2. Licensing or Certification.: CSSP may assist with the cost of licensing or certification necessary to practice in an occupation for which the individual is qualified. 3. Credential Evaluation: CSSP assists with reasonable costs associated with credential evaluation and/or prior learning assessments that may allow the participant to progress more quickly through their education or training program. 4. Books, supplies, tools, computers, equipment, services, and uniforms: CSSP pays for required not recommended books, supplies, tools, equipment, services, uniforms or similar education or training­ related items. To be reimbursed they must be required for everyone in the class or program. The need for books, supplies, tools, equipment, services, and uniforms must be documented by the education and training provider. CSSP will only purchase books, supplies, tools, computer, equipment, services and uniforms and other required items once. Upon purchase, the item(s) become the property of the participant and the responsibility to replace or repair the item(s) if stolen, damaged or lost is the participants.

Allowable Expenditures Excluded from the CSSP Annual Cap

CSSP Payments for the following support services are NOT included in the CSSP cap defined in Section 6.H.4. Support is available to eligible CSSP participants with unmet need and determined necessary for the participant to successfully complete their education or training program. Services including tuition, books, fees, stipends, childcare and transportation, for which the applicant is determined eligible will be provided retroactively to the date of application or the date there is demonstrated need for services covered by the program and required for successful participation, whichever is later. In the case of Apprentices, family income will be re-evaluated at least annually to determine eligibility for support services. Stipend will be available as outlined in Section 6.8 if the household income remains less than 275% of the poverty level for the household size as calculated in Section 2.3.

• • 1. Childcare. CSSP pays for 100% of the costs of childcare for children in the participant's household who are under the age of thirteen (13) or physically or mentally incapable of caring for themselves at a rate that is no more than the Child Care Market rates determined by the Office of Child and Family Services, Early Childhood Division and paid by the Maine Department of Health and Human Services, including any copay that the parent may be subject to under the rules governing any other subsidized childcare program. In situations that are not included above but are recognized to exist and are authorized by the CSSP case manager's supervisor, CSSP will pay for 100% of the costs of childcare when it is required for a participant to meet their education or training obligations. Conditions that must be met to obtain childcare assistance are as follows: To be eligible for childcare from CSSP, participants must agree to apply for any publicly available funding for that care that may be available. Participants requiring childcare must be referred to the appropriate agency in their area that administers subsidized childcare programs. Participants are not required to agree to apply for or accept childcare that limits their choice of childcare provider except that the care must be provided by a licensed or registered childcare provider or a legal in­ home provider. If the provider is caring for more than two (2) unrelated children, then the home must be licensed or registered prior to commencement of CSSP paid childcare.

To maintain continuity of childcare services, and if it is the established practice of a childcare provider to charge the general public for such periods of time, CSSP may pay the provider for holidays, semester breaks, and, as needed, up to thirty (30) days prior to the onset of a person's program in order to secure a childcare slot.

Childcare providers who are paid by CSSP must allow access to the child by the custodial parent or legal guardian (or others with express written permission of the custodial parent or legal guardian), during hours that the child is in care. CSSP does not pay childcare providers who are members of the participant's household or who have a legal obligation to support the child.

• • 1. Transportation. CSSP will provide assistance with transportation as follows:

Mileage. The shortest mileage to and from the education or training institution and the participant's home, permitting stops to drop off or pick up children may be reimbursed at the mileage rate established for employees of the State of Maine and the cost of tolls. This reimbursement is provided to any participant from their home to the training facility and to drop off or pick up children for those days when he/she participates in scheduled classes. Mileage reimbursement is limited to a maximum of 350 miles per week. If other forms of transportation such as car-pool, uber, taxi or public transportation are reasonably available in light of the participant's schedule, the department provides the cost of the less expensive transportation. Travel request forms may be submitted electronically by email, in person, or by mail on a weekly or monthly basis. Mileage reimbursement requests may be submitted weekly or monthly if the eligible reimbursement amount is at least $50. Requests for eligible reimbursement amounts of less than $50 may be submitted no more frequently than monthly.

Auto Repairs. CSSP pays up to a maximum of $1,500 annually for automobile repairs while the CSSP student is participating in their education or training plan. Funds may be used based on the participant's need to cover the costs of unanticipated automobile repairs while in training, to the extent it is necessary for the vehicle to operate or pass inspection. The participant must be listed on the registration and use the car as necessary to participate in their program. CSSP requires that a copy of the automobile registration be submitted prior to approval of repairs. Other conditions for auto repair assistance include the following: Repair costs must be approved in advance of the actual service. The participant is required to provide estimates and evidence of the need for the repair, which has been signed by licensed inspection mechanics, prior to approval being given. A licensed shop of the participant's choice may perform the actual repair. The participant must request payment to their selected licensed shop or reimbursement for payment made for repairs. Payments of approved repair costs are made only following submission of an itemized bill.

• • 1. Other Necessary Service or Need. If a need arises that is not enumerated in these rules and is not covered by other sources but is necessary for successful participation in the participant's education or training program, the CSSP case manager may authorize up to $1,500 per year per participant up to a maximum of $3,000 per participant for the period of CSSP enrollment to satisfy the necessary service or need. Payment under this section should be made only if the need cannot be resolved with assistance from another available source and only if the dollars available under this section (alone or in combination with other resources) are sufficient to resolve and prevent a re-occurrence of the need. 2. Training Stipend. Participants whose annual household income is below 250% of the federal poverty level are eligible for a monthly training stipend for any month in which the participant must attend their postsecondary or industry recognized education or training program. Eligibility for the stipend must be determined at least each year on the anniversary of the participant’s initial CSSP eligibility date.

For purposes of stipend eligibility, full-time and part-time participation are defined in Section 1.12/1.22. Stipend amounts will be calculated based on the participant’s enrollment status or scheduled training time as applicable to the type of education or training program.

Associate or bachelor degree students: Stipends based on full-time or part-time enrollment status as defined in Section 1:

Full-time (12 or more credits): 100% stipend

Part-time (6-11 credits): 50% stipend

Less than 6 credits: No stipend

Nursing and education students participating in clinical rotations, externships, or practicum requirements may be considered full-time for stipend purposes when they are enrolled in at least 6 classroom credits during the semester and are participating in required clinical, externship, or practicum hours.

Short-term training students: Stipend payments may be prorated based on the income eligible participant’s scheduled weekly training hours. Twelve (12) training hours per week shall be considered full-time participation for purposes of stipend eligibility.

• 12+ hours/week = 100% stipend

• 6-11 hours/week = 50% stipend

• Less than 6 hours/week = 0% stipend

Registered Apprentices and pre-apprentices/Short term cohort programs: Eligible for full-time stipend if income eligible during any month they attend two full weeks of classroom training or on the job learning that is required by their program.

• • 1. For those participating full-time, the stipend equals one-third of the maximum weekly unemployment benefit times the number of weeks in a month (as determined annually by the Bureau of Unemployment Compensation) and will be paid monthly. For example, a person's monthly CSSP stipend would equal Maine's maximum weekly unemployment benefit x .333 = X times 4.3481. No more than two stipends may be received in a household even if there are more than two household members participating in the program. Full-time and less than full- time student status is defined by the institution the person attends unless these rules specifically state otherwise.

Participants who are eligible for dislocated worker benefits (DWB), unemployment compensation (UI) or Trade Readjustment Act (TRA) benefits are not eligible for a CSSP stipend in any month that they are eligible for and receiving one of these benefits. Participants pending UI eligibility, awaiting adjudicator decision or an administrative hearing will be entitled to stipend until they begin receiving Unemployment Insurance payments if they meet all other stipend eligibility criteria. Participants who are eligible for and receive any income pursuant to Section 2.A.2 excluding student loans, non-cash benefits, income of dependent children, and all federal and state need-based financial aid resources granted through a financial award process, that in their aggregate benefit exceed 250% of the federal poverty level are not eligible for the stipend. Participants must disclose receipt of such benefits and be referred to the appropriate source to determine if they may be eligible for such benefits prior to the receipt of the stipend. CSSP participants meeting the definition of Dependent Applicant in Section 1 are not eligible for the stipend.

Participants who have no ongoing room and board expenses are not eligible for the stipend. Therefore, participants living in a residential healthcare facility, a correctional facility, a dormitory, or a homeless shelter are not eligible for the stipend.

Other Documentation in Career Plan

Other Documentation in the Career Plan must include:

• • 1. Amendments. The Career Plan may be amended at any time due to unanticipated or changed circumstances, provided that the program will be completed within the time established under paragraph 6 of this section. Updates to the Career Plan require participant and CSSP case manager signatures and if needed, translation of the document or use of language interpreter. 2. Right to appeal. Each Career Plan and Career Plan amendment must include in plain language notice of the participant's right to appeal as described in Section 7 and notice of how to file an appeal or request a hearing if the participant is dissatisfied with the career plan.

Career Plan Review

The terms of the Career Plan, including eligibility for a CSSP stipend, must be reviewed by the CSSP case manager and the participant each year on the anniversary of the participant’s initial CSSP eligibility date or sooner, as needed.

• • 1. Satisfactory Progress. To remain eligible for CSSP education, training and support services, participants must demonstrate satisfactory progress in their education or training program unless Good Cause is demonstrated. A participant is making satisfactory progress if they maintain satisfactory academic or training progress as determined by the education or training institution where they attend and remain able to complete their program within the time specified in Section 6.6 and document satisfactory progress to the CSSP case manager.

Satisfactory progress includes:

Continued ability to complete the Training or Education program within the time specified in Section 6.G

Maintenance of good financial standing with the Training or Educational Institution and retaining the continued right to register and enroll in classes, having access to official transcripts, and ability to receive an official diploma or certificate.

A participant will be placed on CSSP probation if their grade point average falls below 2.0 or if a participant is placed on "academic probation" by the educational institution. The participant will have one term in which to regain satisfactory progress before being terminated from CSSP financial assistance for education, training, or support services. When a participant's GPA is above the 2.0 threshold, but they have frequently withdrawn from classes without authorization from the CSSP case manager, failed, or dropped out of classes, CSSP specifies the following.

Any combination of more than five (5) unauthorized class withdrawals, failures and or drop-outs throughout the duration of a participant's training is grounds for termination from the CSSP Program. Participants who fail to maintain or regain satisfactory progress in their education or training program will remain eligible for CSSP job search assistance or referrals to other services in support of employment.

SECTION 7: APPEALS

l. Appeal to CSSP Program Manager. An applicant or participant (or parent or legal guardian of an applicant or participant who is a minor) who is dissatisfied with a CSSP case managers decision related to the eligibility for or the provision of CSSP services has the right to file a written appeal with the CSSP Program Manager within 30 days of the decision. If no appeal is filed, the CSSP case manager's decision shall become final. If the customer files a written appeal within ten (10) days of a decision to terminate the participant from the program or terminate or reduce assistance provided for in a currently effective career plan, then the decision will not be implemented pending the outcome of the administrative appeal process. An appeal must be made in writing and submitted electronically, by mail or delivered by hand. The CSSP Program Manager will issue a written decision within fifteen (15) days of the filing of the appeal. The decision may reflect an agreed resolution to the appeal or, if no agreed resolution was reached, it will reflect the CSSP Program Manager's decision.

Appeal of CSSP Program Manager's Decision. The applicant or participant (or parent or legal guardian of an applicant or participant who is a minor) may appeal the CSSP Program Manager's decision by filing a written request for a hearing by a hearing officer. The request must be filed with the Program Manager within 30 days of the date of issuance of the CSSP Program Manager's Decision. If no appeal is filed, the Program Managers decision shall become final. The 30- day appeal period may be extended up to 15 additional days if the individual can show good cause for failing to appeal within the initial 30-day period. Upon receiving a request for a hearing, the Program Manager shall forward it, together with a copy of the decision being appealed, to the hearing authority designated by the Department.

The Administrative Hearing Officer shall conduct a hearing in accordance the Maine Administrative Procedure Act 5 M.R.S.A. ch. 375, subchapter 2 and render a decision within 30 days of the hearing request. The Hearing Officer may affirm, set aside, modify, or remand the CSSP Program Manager's decision. A hearing decision affirming, setting aside or modifying the CSSP Program Manager's decision pursuant to this section is final agency action and may be appealed to the Superior Court.

Notices. All decisions regarding eligibility for CSSP or regarding the benefits provided under CSSP, including the Career Plan, must be in writing and must provide notice to the applicant or participant of their right to appeal to the Program Manager, and if dissatisfied with that decision, to appeal by requesting a fair hearing. CareerCenter or CSSP staff shall assist applicants or participants who express a desire to file an appeal or hearing request with the process.

SECTION 8. NON-DISCRIMINATION

The Competitive Skills Scholarship Program (CSSP) ensures that programmatic services are accessible to universal customers, including individuals with disabilities and limited English proficiency and follows the nondiscrimination and equal opportunity provisions as defined in Equal Opportunity is the Law and outlined in Maine's Nondiscrimination Plan. This prohibits discrimination against all individuals in the United States on the basis of race, color, religion, sex (including pregnancy, childbirth, and related medical conditions, transgender status, and gender identity), national origin (including limited English proficiency), age, disability, or political affiliation or belief, or against beneficiaries on the basis of either citizenship status or participation in any financial assistance program or activity. CSSP further follows all Common Assurances as outlined in Maine's Unified State Plan, that span across MDOL programs to ensure reasonable representation and/or attendance, accessibility, notice of communication and ability for public comment and/or disclosure of conflict of interest.

All program materials, web-based or printed, workshops and other interactions with registrants, applicants, eligible applicants/registrants, participants, applicants for employment and employees, will contain the equal opportunity tag line language. "The Maine Department of Labor provides Equal Opportunity in employment and programs. Auxiliary aids and services are available to individuals with disabilities upon request."

The Competitive Skills Scholarship Program (CSSP) uses an online case management and data-base tool to record and track registrant, participant and terminee information. This system is designed to collect and maintain records on every registrant, eligible applicant, participant, and terminees (both positive and negative program exiters) to include demographic information, including race/ethnicity, sex, age, disability status, where known, and preferred language. Participants and staff enter and use data into the system to determine eligibility, upload supporting documentation, document employment and training plans, resumes, progress on plans, credentials, employment, and wage following exit. Participant training and supportive service budgets and expenses are also traced in the online case management and data-base system. The information is stored in a manner that ensures confidentiality and is a password protected system and must only be used for purposes of recordkeeping and reporting, determining eligibility, where appropriate, for CSSP financially assisted programs or activities; determining the extent to which the recipient is operating its CSSP financially assisted program or activity in a nondiscriminatory manner; or other use authorized by law.

SECTION 9. GENDER EQUITY

The CSSP goal for placing participants in education or training leading to nontraditional occupations (NTOs) is the same as for any policy in WIOA that is designed to provide an incentive for greater enrollment into NTOs. In addition to tracking NTO training and job placements, the Department will track participation based upon occupational goal and level of education required by gender.

SECTION 10. LIMIT ON ADMINISTRATION AND CAREER COUNSELING

The Commissioner shall establish a limit on or a formula that limits the proportion of program funds that are expended on career counseling and for administration.

History

• STATUTORY AUTHORITY: 26 M.R.S.A. ch. 25 sub-ch. 5 EFFECTIVE DATE:
• STATUTORY AUTHORITY: May 14, 2008 -filing 2008-197
• AMENDED: July 23, 2008 - Sections 1 and 6, filing 2008-320
• AMENDED: March 25, 2009-filing 2009-123
• AMENDED: March 22, 2010- filing 2010-84
• AMENDED: April 15, 2014 - filing 2014-066. The rule adopted on March 21, 2014 will apply to individuals who receive their scholarships after the adoption date of March 21, 2014. The rule adopted on March 21, 2014 is not retroactive to current participants, who received their scholarships under a previous version of the rule.
• AMENDED: December 22, 2015 -filing 2015-249
• REPEALED AND REPLACED: March 16, 2024 – filing 2024-051
• AMENDED: August 2, 2026 – filing 2026-177

12-702 Maine Paid Family and Medical Leave Program

Chapter 1 Rules governing the Maine Paid Family and Medical Leave Program (in .pdf format)

Code Me. R. 12-702 Ch. 1 Rules governing the Maine Paid Family and Medical Leave Program _____________________________________________________________________________ Summary: The purpose of this chapter is to provide definitions and procedures for implementing the Paid Family and Medical Leave Program pursuant to 26 M.R.S. chapter 7, subchapter 6-C. ______________________________________________________________________________ I. Definitions A. Meaning of Terms. The following definitions are provided to clarify or to add to those codified in Title 26 § 850-A. Unless the context otherwise requires, terms used in regulations, interpretations, forms, and other official pronouncements issued by the Department shall be construed in the sense in which they are defined in the law, or in this or other regulations of the Department. {#sec-12-702-ch.-1 omnilex-key=us-me-regs-official--dept-labor--12-702 Ch. 1}

1. “Act” means the Act authorizing Paid Family and Medical Leave, 26 M.R.S. §§ 850-A - 850R.

2. “Administrator” has the same meaning as § 26 M.R.S. 850-A (1).

3. “Applicant” means an individual who is applying to obtain benefits under this rule.

4. “Authority” means the Paid Family and Medical Leave Benefits Authority established in 26 M.R.S. § 850-O.

5. “Business day” means any day that is not a Saturday, Sunday or a state holiday.

6. “Calendar week” means a period of seven consecutive calendar days, beginning on a Sunday.

7. “Continuous leave” means leave occurring in blocks for consecutive days or weeks.

8. “Department” means the Maine Department of Labor.

9. “Days” means calendar days, unless otherwise specified inthe Act, or in this rule.

10. “Employer” has the same meaning as 26 M.R.S. § 850-A (14). Additionally, “Employer” for the purpose of these rules, in the case of an employee leasing contractual arrangement described in 32 M.R.S. Ch. 125, means the client company as described in 32 M.R.S. Ch 125 §14051(1), and any reference to Federal Employer Identification Number (FEIN) means the FEIN of the client company.

11. “Family leave” means leave requested by an employee for the reasons set forth in 26 M.R.S. § 850-B (2) or 26 M.R.S. § 843 (4).

12. “Family member” has the same meaning as 26 M.R.S. § 850-A(19).

13. “Good cause” includes, but is not limited to, the following:

A. A serious health condition that results in an unanticipated and prolonged period of incapacity and that prevents an individual from timely filing an application for benefits or a request to appeal;

B. A demonstrated inability to reasonably access a means to file an application or to request an appeal in a timely manner, such as an inability to file an application or request to appeal due to a natural disaster or a significant and prolonged closure of the Department’s offices;

C. A serious health condition of a family member that requires the unanticipated and prolonged presence of the individual filing an application or request to appeal and that prevents the individual from timely filing an application for benefits or a request to appeal;

D. Physical, intellectual, linguistic or other limitations including limited understanding of English that prevents the timely filing of an application or request to appeal; or E. Circumstances beyond the control of the individual filing the application or requesting the appeal that made it impossible to timely file the application or request to appeal despite making a reasonable effort to do so.

14. “Health care provider” has the same meaning as 26 M.R.S. § 850-A (21) and includes but is not limited to all providers identified in 29 C.F .R § 825.125 (eff. Feb 6, 2013.)

15. “Intermittent leave” means an employee taking varying periods of leave and returning to work throughout a period of approved covered leave time. Intermittent leave may be planned (i.e., for routine appointments) or unplanned (i.e., for a flare-up of a serious health condition).

16. “Independent contractor” has the same meaning as 26 M.R.S. § 1043 (11) (E).

17. “Medical leave” means leave requested by an employee for the reasons set forth in 26 M.R.S. § 850-A (22).

18. “Program” means the Maine Paid Family and Medical Leave Program.

19. “Reduced schedule leave” means a leave schedule that reduces the typical number of days per workweek, or hours per workday, of an employee on a planned and consistent

basis.

20. “Safe leave” means leave requested by an employee for the reasons set forth in 26 M.R.S. § 850-A (26)

21. “Scheduled workweek” means the number of hours an employee is scheduled to work in a particular week. For the purposes of this rule, a self-employed individual who has elected coverage and a salaried employee as defined by 26 M.R.S. § 663 (3) (K) have a scheduled workweek of 40 hours, Monday-Friday, 8 hours per day.

22. “State average weekly wage” has the same meaning as 26 M.R.S. § 850-A (30). For the purposes of this rule, the state average weekly wage amount is updated annually on July 1 st .

23. “Tier 1 wages” means the amount of the covered individual’s reported gross weekly wage reported to the Administrator that is equal to or less than fifty percent (50%) of the state average weekly wage.

24. “Tier 1 benefits” means the percentage of the wage replacement a covered individual is entitled to earn on wages up to fifty percent (50%) of the state average weekly wage.

25. “Tier 2 wages” means the amount of the covered individual’s reported gross weekly wage reported to the Administrator that is more than 50 percent (50%) of the state average weekly wage.

26. “Tier 2 benefits” means the percentage of the wage replacement a covered individual is entitled to earn on wages that are more than 50 percent (50%) of the state average weekly wage as defined in this rule.

27. “Waiting period” means the period in which medical leave benefits are not payable for approved leave under this Act beginning for the first 7 calendar days at the start of leave.

28. “Wages” means all remuneration for personal services, including tips and gratuities, severance and terminal pay, commissions, and bonuses, but does not include remuneration for services performed by an independent contractor as defined by 26 M.R.S. § 1043 (11) (E). “Wages” are calculated in the same manner as Maine unemployment wages in 26 M.R.S. § 1043(19)(B-E) except that employees subject to wages include all employees with the exception of S ection II (B) of these rules, and excludes wages above the base limit established annually by the federal Social Security Administration for purposes of the federal Old-Age, Survivors, and Disability Insurance program limits pursuant to 42 U.S.C. § 430. Wages include remuneration for services performed in the State or wages which are otherwise subject to Maine unemployment tax pursuant to 26 M.R.S. § 1043 (11) (A) and (D).

29. “Wages for self-employed individuals” has the same meaning as income as defined in 26 U.S.C.§ 1402(b) (eff. Mar. 23, 2018)

30. “Weekly Benefit Amount” means the amount of wage replacement as calculated in 26 M.R.S. § 850-C (2) payable to a covered individual on a weekly basis while the covered individual is on family leave or medical leave, including prorated amounts for partial weeks of leave.

II. Coverage A. Covered employees are:

1. Employees who earn wages paid in the State.

a. “Wages paid in the State” means all remuneration for personal services, including tips and gratuities, severance and terminal pay, commissions, and bonuses, but does not include remuneration for services performed by an independent contractor as defined by 26 M.R.S. § 1043 (11) (E). “Wages” are calculated in the same manner as Maine unemployment wages in 26 M.R.S. § 1043(19)(B-E) except that employees subject to wages include all employees with the exception of Section II (B) of these rules, and excludes wages above the base limit established annually by the federal Social Security Administration for purposes of the federal Old-Age, Survivors, and Disability Insurance program limits pursuant to 42 U.S.C. § 430. Wages include remuneration for services performed in the State or wages which are otherwise subject to Maine unemployment tax pursuant to 26 M.R.S. § 1043 (11) (A) and (D).

2. Individuals who elect coverage as set forth in the Act and in this rule.

B. The following types of employment are not covered by this Act:

1. Any employee subject to the Railroad Unemployment Insurance Act, 45 U.S.C. §§ 351 – 369, (eff. Nov. 10, 1988).

2. Incarcerated persons earning wages in a Maine correctional facility established in 34-A M.R.S. § 1001 (6) or a detention facility established in 34-A M.R.S. § 1001 (8-A).

3. Students that are earning wages as part of the federal Work-study Program and are enrolled in any University of Maine system established in 20-A M.R.S. § 10901, a community college established in 20-A M.R.S. § 12714, or any other public or private higher educational institution in the State of Maine.

4. Individuals who volunteer for an employer or governmental entity if the volunteer:

a. Performs hours of service for the employer or governmental entity for civic, charitable or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered. Although a volunteer may receive no compensation, a volunteer may be paid expenses, reasonable benefits or a nominal fee to perform such services;

b. Offers services freely and without pressure or coercion, direct or implied, from an employer; and c. Is not otherwise employed by the same employer or governmental entity to perform the same type of services as those for which the individual proposes to volunteer.

5. Employees of the federal government, including employees of the United States Postal Service.

III. Use and types of Leave A. A covered individual may take the following types of leave:

1. Continuous leave 2. Intermittent leave 3. Reduced Schedule leave B. Use of Intermittent and Reduced Schedule leave.

2. Covered individuals may take up to 12 weeks of approved leave on either a continuous, intermittent or reduced schedule. Partial weeks or partial days of leave will be prorated against the employee's scheduled workweek.

3. Intermittent and reduced schedule leave may be taken by the covered individual in increments of not less than a scheduled workday. If a covered individual and their employer agree in writing, the covered individual may take intermittent or reduced schedule leave in smaller increments, except that the minimum increment is one hour.

An employer is not required to agree to allow the use of increments of less than a scheduled workday but cannot refuse to allow the covered individual to use a full scheduled workday if refusing the use of a partial day. A covered individual who is selfemployed and has opted into the fund must take leave in increments of one scheduled workday.

3. Payments will be prorated based on the number of hours of leave used by a covered individual and reported to the Administrator, divided by the number of hours the covered individual is scheduled to work in the week. If the covered individual’s schedule is so variable that it is difficult to determine how many hours the covered individual would have worked in the week were it not for taking leave, the Administrator will determine the covered individual’s scheduled workweek as the average number of hours worked by the covered individual in each of the previous 12 weeks. If the Administrator is not able to obtain information about the covered individual’s previous 12 weeks of hours worked after reasonable attempts to obtain said information the Administrator will assume a schedule of Monday through Friday, 8 hours per day. For the purposes of this paragraph, “hours worked” means any hours the employee was or is scheduled to work, regardless of whether the employee actually worked those hours or used authorized leave to cover those hours.

4. A covered individual approved for intermittent leave is not required to file a separate application for each occurrence of intermittent leave but must report any leave taken to the Administrator within 15 days after each occurrence for the purposes of providing benefits. A covered individual must still inform their employer of any intermittent leave use according to the employer’s reporting policies.

5. If an applicant applies to take intermittent or reduced schedule leave from two or more employers participating in the Fund, the applicant must provide, for each employer, a leave schedule agreed to by the applicant and the employer that provides information regarding the number of hours the applicant is scheduled or anticipated to work for a specific workweek and the number of hours the employee will use leave for on a reduced or intermittent basis for each workweek during leave for benefit proration. The Weekly Benefit Amount is prorated based on the number of hours of leave taken from any of the employers from whom the covered individual is on leave and the covered individual’s scheduled hours for all of the employers from whom the covered individual is on leave.

In the absence of such agreement, the Administrator will determine the applicant’s scheduled hours.

IV. Eligibility A. To receive benefits, a covered individual must:

1. Be a covered employee as defined in Section II;

2. Have earned wages paid in the State at least 6 times the state average weekly wage during the first 4 of the last 5 completed calendar quarters immediately preceding the first day of an individual’s benefit year. For the purposes of these calculations, the state average weekly wage is that which was published effective on the July 1 immediately preceding the date of application for benefits or of the start of the leave, whichever is earlier.

3. Submit an application for benefits no more than 60 days before the anticipated start date of family leave and medical leave and no more than 90 days after the start date of family leave and medical leave;

4. Be employed as of the date of application for benefits if applying in advance of leave, or be employed as of the date of leave beginning if applying retroactively for leave;

5. Have not been declared ineligible pursuant to Section IX of this rule; and 6. Satisfy one of the qualifying reasons under the Act.

B. The following provisions apply regarding the eligibility to take leave:

1. A covered individual may take family leave immediately following medical leave if the medical leave is taken during pregnancy or recovery from childbirth and supported by documentation by a health care provider. If the covered individual is eligible as of the start of the medical leave for pregnancy and recovery from childbirth, that eligibility status shall be retained for the purposes of family leave for bonding with a child immediately following the medical leave, regardless of the covered individual’s eligibility data as of the first day of the family leave. The combined medical leave and family leave may not exceed the 12-week maximum of family and medical leave within a benefit year.

2. The 12 weeks of aggregate leave taken under this Act will be reduced by any leave taken under 29 U.S.C. § 2611 (eff. Dec. 20 ,2019) or leave under 26 M.R.S. § 844 that was not taken concurrently with leave under this Act in the 12 month period preceding the start of leave.

3. When determining an employee’s eligibility to obtain benefits, the number of days an employee has worked for an employer shall not be considered by the Administrator.

V. Notice and Undue Hardship A. An employee must give reasonable notice to the employee's employer of the employee's intent to use leave. Thirty days written notice to the employer shall be presumed to constitute reasonable notice, unless an employer determines otherwise in accordance with subsection (V)(D). In the case of an emergency, illness or other sudden necessity, an employee shall make a good faith effort to provide written notice to the employer of the employee’s intent to use leave as soon as is feasible under the circumstances. If the employee is incapacitated, notice may be provided by a family member or health care provider on behalf of the employee.

B. The employee’s notice shall include the following information:

1. The reason for the leave being requested (e.g. family, medical, safe leave, qualifying exigency);

2. The type of leave needed (e.g. continuous, reduced schedule, or intermittent leave);

3. Actual or anticipated timing and duration of leave;

4. Any other relevant information regarding the employee’s need to take leave. The employer may not require an employee’s notice to be in or on a prescribed form as long as the information provided is sufficient. This notice must be in writing, which can include a standard form, letter, email, or text message provided to the employer.

C. If the employee and employer agree to a schedule of leave, the employer may waive the 10day review of undue hardship on a form and manner provided by the department at the time of the employee’s application of leave.

D. The employer may reasonably determine that the timing or duration of the leave creates an undue hardship. “Undue hardship” means a significant impact on the operation of the business or significant expenses, considering the financial resources of the employer, the size of the workforce, and the nature of the industry that cannot be overcome with the amount of notice given. An employer’s determination of undue hardship shall be considered reasonable if:

1. The employer provided a written explanation of the undue hardship to the employee, demonstrating, based on the totality of the circumstances, how the absence of the specific employee and the specific timing and/or duration of the employee’s requested leave will cause significant impact on the operation of the business or significant expenses;

2. The employee retains the ability to take leave within a reasonable time frame relative to the proposed schedule; and 3. The employer has made a good faith attempt to work out a schedule for such leave that meets the employee's needs without unduly disrupting the employer's operations.

3. If medical leave is requested, the employer’s proposed schedule must be sufficient to accommodate the healthcare needs of the employee in the judgment of the employee’s healthcare provider.

VI. Process for Application and Approval of Benefits A. To request paid family and medical leave benefits, an applicant shall submit an application for benefits in a manner approved by the Department. An application may be submitted online. The applicant must submit all information and documentation requested by the Administrator that is reasonably necessary to determine eligibility for leave. Requested information and documentation may include, as applicable to the type of leave requested:

1. Proof of personal identity;

2. Identifying information about all employers participating in the Fund from which the applicant is seeking leave;

3. Proof of identity of family member if the applicant is applying for paid family leave;

4. Information regarding the existence of a significant personal bond, if the applicant is applying for family leave to care for an individual with a serious health condition with whom the applicant has a relationship as described in 26 M.R.S. § 850- A(19)(G). A significant personal bond is one that, when examined under the totality of the circumstances, is like a family relationship, regardless of biological or legal relationship. This bond may be demonstrated by, but is not limited to the following factors, with no single factor being determinative:

a. Shared personal financial responsibility, including shared leases, common ownership of real or personal property, joint liability for bills or beneficiary designations;

b. Emergency contact designation of the employee by the other individual in the relationship or the emergency contact designation of the other individual in the relationship by the employee;

c. The expectation to provide care because of the relationship or the prior provision of care;

d. Cohabitation and its duration and purpose;

e. Geographic proximity; and f. Any other factor that demonstrates the existence of a family-like relationship.

5. Reason for leave;

6. Proposed scheduling of leave, including the first day of missed work and the expected duration of leave;

7. A waiver signed by the employer that the proposed schedule of leave is not an undue hardship, if applicable;

8. Documentation, to include the anticipated duration of leave, from a health care provider of the applicant’s own serious health condition if seeking medical leave;

9. Documentation, to include the anticipated duration of leave, from a health care provider of the family member’s serious health condition if seeking family leave; and 10. Other information and documentation reasonably requested by the Administrator.

B. The application will contain an Authorization Statement, which, if signed by the applicant or, in the case of applications for leave to care for a family member with a serious health condition, the applicant’s family member, authorizes the Administrator to obtain medical information from the relevant health care provider as part of the verification process to obtain paid family or medical leave benefits. Applicants and their family members are not obligated to sign the Authorization Statement; however, if they decline to do so, the applicant is responsible for providing all required medical information from the relevant health care provider, and processing of the application may be delayed by any delay or failure to provide such information.

C. An application for safe leave must include a signed statement that the applicant meets the requirements for safe leave set forth in the Act.

D. A completed application must include a signed statement attesting that the information provided in support of the application for paid family or medical leave benefits is true and correct to the best of the applicant’s knowledge.

E. A failure to provide reasonably necessary information or documentation may result in a delay in processing or denial of the application. Before denying a claim for incomplete information, the Administrator must provide the applicant an opportunity to provide the outstanding information. If such information is not provided within 10 business days of the Administrator’s request, the application may be denied. The Administrator may deny an application for incomplete information only if such information is reasonably necessary to determine whether the applicant is eligible for benefits under the Act, and the extent and timing of such benefits.

F. A complete application for paid family or medical leave benefits may be submitted to the Administrator no more than 60 days prior to the start of family and medical leave and no more than 90 days after the start date of family leave and medical leave.

G. The 90-day application deadline may be waived if the Administrator finds good cause exists.

Good cause for the late submission of an application is at the discretion of the Administrator H. The Administrator shall notify the employer in writing of an applicant’s claim to obtain paid family or medical leave within 5 business days after a claim was filed. If there is an agreement as to the scheduling of leave, as mentioned in Section V B(5), the application will be processed immediately. If there is no agreement as to the scheduling of leave, as mentioned in Section V B(5), the application will go through an employer review as follows. Within 10 business days, the employer must submit any additional facts or information regarding the applicant’s eligibility it wishes the Administrator to consider, and if the employer has determined that the proposed scheduling of the leave constitutes an undue hardship, the employer must also provide documentation supporting its determination pursuant to section V. Failure to claim an undue hardship during this time period shall be deemed a determination that the proposed schedule does not constitute an undue hardship. The Administrator shall review all determinations of undue hardship pursuant to section V. If the Administrator finds that the employer’s determination is reasonable and the application would otherwise be approved, the Administrator shall impose a reasonable schedule provided by the employer. The employee shall be notified in writing by Administrator of the finding of undue hardship and the new provided schedule. If the Administrator finds that the employer’s determination of undue hardship is not reasonable, the Administrator shall notify the employer in writing, and the application shall be processed in accordance with these rules with the employee’s requested schedule. The employer or employee may appeal the Administrator’s finding in this section pursuant to section XV within 15 business days from the date the decision is issued.

VII. Review of claims for benefits A. The Administrator shall review a complete application and issue a determination to the covered individual. The review of the claim shall begin no later than the close of the 10 business days within which the employer is required to provide information to the Administrator. During those 10 business days, the Administrator will not begin the review if the employer has not yet provided requested information.

B. If an applicant is not approved to obtain benefits, the Administrator shall notify the applicant and the employer and state the reason or reasons for the denial in the notification. The Administrator’s notice shall also inform the applicant that they are entitled to request a reconsideration of the Administrator's decision by notifying the Administrator in writing within 15 business days from the date the notification is issued.

C. If the applicant is approved to obtain benefits, the Administrator shall notify the applicant and the employer as to the benefit amount, the amount of time for which the applicant has been approved to take paid family or medical leave, and the qualifying reason, along with information on when benefits will be paid, and contact information of the Administrator. The Administrator shall also inform the applicant that they are entitled to request a reconsideration of the decision if they do so in writing within 15 business days from the date the notification is issued.

D. If the applicant requests reconsideration, the Administrator shall review the request and the applicant’s original application, using a separate reviewer from the initial consideration. The Administrator shall notify the employer of the applicant’s request for reconsideration. The Administrator shall notify the applicant and employer in writing of the outcome of the reconsideration request. If reconsideration results in denial of benefits, the Administrator shall state the reason for the denial. If the applicant is aggrieved by the result of the reconsideration, the applicant may appeal the reconsideration decision pursuant to Section XV within 15 business days from the date the decision is issued. An applicant is not aggrieved if all requested benefits were approved.

E. If an applicant’s claim is approved, the employer(s) from which they are taking leave will receive notification of the claim approval along with the approved timeframe of leave within 5 business days of the approval date.

F. All notifications from the Administrator to applicants and employers will be in writing, which may include email or electronic portal notifications.

VIII. Benefits A. Calculation of Benefits:

1. The Weekly Benefit Amount paid to a covered individual is calculated based on a tiered wage system. The calculation of benefits will be determined by the Administrator using the applicant’s Average Weekly Wage, as calculated based on the applicable earnings data reported to the Administrator by the employer or employers, or by the individual if the applicant is self-employed.

2. The Weekly Benefit Amount shall be calculated as follows:

a. Tier 1 wages and benefit: t he State Average Weekly Wage shall be multiplied by 50% and rounded up to the nearest whole dollar. This shall be the Tier 1 Wage Cap. The portion of the individual’s average weekly wage that is less than or equal to the Tier 1 Wage Cap is multiplied by 90% and rounded up to the nearest whole dollar. This shall be the Tier 1 Benefit Amount. If the covered individual’s average weekly wage does not exceed the Tier 1 Wage Cap, no additional calculation under Tier 2 is required.

b. Tier 2 wages and benefit: t he portion of the covered individual’s average weekly wage that exceeds the Tier 1 Wage Cap shall be multiplied by 66% and rounded up to the nearest whole dollar. This shall be the Tier 2 Benefit Amount.

c. Weekly Benefit Amount: The Tier 1 Benefit Amount and the Tier 2 Benefit Amount shall be combined to equal the Calculated Weekly Benefit Amount. If the Calculated Weekly Benefit Amount exceeds the Maximum Weekly Benefit Amount, the Weekly Benefit Amount shall be the Maximum Weekly Benefit Amount; otherwise the Calculated Weekly Benefit Amount shall be the Weekly Benefit Amount.

d. For the purposes of these calculations, the state average weekly wage is that which was published effective on the July 1 immediately preceding the date of application for benefits or of the start of the leave, whichever is earlier.

3. The Average Weekly Wage is calculated by dividing the reported wages for the applicant in their base period by 52. Once the Weekly Benefit Amount is established for a claim it will remain consistent through the life of the claim, subject to the subsection C below.

B. Payment of Benefits:

1. Approved benefits shall be paid to the covered individual by direct deposit into a checking or saving account in a financial institution in the United States. Alternatively, if the covered individual wishes to receive their approved Weekly Benefit Amount in the form of a debit card, the covered individual may request this on their application to obtain benefits.

2. Medical leave benefits are not payable to a covered individual for the first seven (7) consecutive calendar days beginning with the first day of leave.

C. Reduction and Proration of Benefits:

1. Proration of Benefits. Benefits shall be prorated for covered individuals taking leave for less than a full week as follows: the amount of time taken as leave will be divided by the amount of time the covered individual was scheduled to work for any employer in the week. The covered individual’s prorated benefit amount shall be calculated separately for each week in which the covered individual reports use of leave equaling less than a full scheduled workweek.

2. Reduction of Benefits. For any week in which a covered individual is on family leave or medical leave, the covered individual’s Weekly Benefit Amount must be reduced by the amount of wage replacement that the covered individual receives from a government program or law, including but not limited to unemployment insurance, workers compensation, other than for compensation received under 39‑A M.R.S. § 213 for an injury that occurred prior to the family leave or medical leave claim, and other state or federal temporary or permanent disability benefits laws, or from an employer’s permanent disability program or policy for the same week.

3. The covered individual’s Weekly Benefit Amount is not subject to reduction by any of the following:

a. Any benefit received from SNAP, TANF, HEAP or similar programs;

b. Wages received from any other employer from whom the covered individual is not on leave;

c. Wages received from the employer from whom the covered individual is on leave for hours actually worked or authorized leave time used during the same week;

d. Wages received from the employer if the employer voluntarily pays the difference between the covered individual’s Weekly Benefit Amount and their typical weekly wage. If the employer voluntarily pays such wages, the employer may charge that time against the covered individual’s leave balances; and e. Supplemental payments received from an employer’s short term disability program or policy. to the extent that the payments combined with the PFML benefits do not exceed the individual's typical weekly wage.

IX. Fraud and Ineligibility A. Definitions:

1. “PFML fraud” exists where a covered individual has obtained paid family or medical leave benefits based upon a willful false statement, willful misrepresentation of a material fact, or the willful withholding of a material fact or facts.

2. “Material fact” means a fact the truth or falsity of which would have a determinative effect on the approval or denial of a claim.

B. The Department shall investigate complaints or reports of suspected PFML fraud. The Department may also conduct random audits and reviews of submitted claims. A finding of PFML fraud shall be made based on a preponderance of the evidence. The following procedures may be followed in investigations of suspected PFML fraud:

1. Obtaining documentary evidence. Prior to interviewing an individual, the Department shall obtain all available documentation. An individual shall provide any requested documents within 21 days of receiving a request from the Department.

2. The Department may interview a covered individual after providing notice no less than ten (10) business days in advance. The notice of interview will be provided in writing. The interview may be conducted in person or by phone at the discretion of the Department.

3. The Department shall make a finding of PFML fraud or, if fraud is not determined, dismiss the complaint, and shall notify the covered individual as to the outcome of the investigation. If the Department finds that the covered individual has committed PFML fraud, the covered individual’s benefits, if currently active, shall immediately be suspended, and the covered individual shall be designated as ineligible pursuant to 26 M.R.S. § 850-D(5).

C. If the Department determines that PFML fraud has occurred that affected a covered individual but for which the covered individual was not responsible, such as identity theft by a third party, any weeks fraudulently used will not be charged against the covered individual’s maximum leave benefits.

D. A covered individual found to have committed PFML fraud shall be designated as ineligible pursuant to 26 M.R.S. § 850-D (5) and disqualified from benefits for a period of one year from the date of the final determination. The Department may demand repayment of any benefits paid as a result of PFML fraud.

E. The Department shall notify the covered individual if it demands repayment of the amount due. The covered individual may request a waiver of repayment by notifying the Department, in writing, within 30 days after the notice of the repayment. The covered individual’s request shall state the reasons for requesting a waiver of repayment. The Department shall have the discretion to waive repayment in whole or in part if recovery would be against equity and good conscience.

F. A covered individual may appeal a finding of PFML fraud, a demand for repayment, or a denial of a waiver request consistent with the procedures in Section XV of this rule within 15 business days from the date the decision is issued. A request for waiver of repayment does not constitute a request to appeal the demand for repayment unless a request to appeal is specifically included. Any repayment shall be tolled during the pendency of an appeal or a request for waiver. However, absent a showing that it would be against equity and good conscience, the covered individual’s designation of ineligibility and immediate termination of current benefits shall not be tolled during the pendency of an appeal.

X: Premiums A. The employer's premium amount and contribution report must be remitted quarterly on or before the last day of the month following the close of the quarter for which premiums have accrued. The contribution report must be on a form and in a manner approved by the Department, and all employers covered under this Act must register online for the program. Payment for premiums will be considered timely if postmarked or received electronically on or before the due date. If the due date falls on a Saturday, Sunday, or legal holiday, payment will be considered timely if postmarked on the next business day that is not a Saturday, Sunday, or legal holiday. Premium payments and contribution reports may be remitted by an employee leasing company or authorized third party administrator on behalf of the employer.

B. For the purposes of determining when withholding for premiums begin, withholdings will begin on wages for the first pay period with a payment date in January 2025.

C. For the purposes of reporting wages on contribution reports, amounts will be reported to the nearest cent. For the purposes of calculating premiums owed, amounts will be rounded to the nearest whole dollar.

D. Premiums are required up to the contribution and benefit base limit established annually by the federal Social Security Administration for purposes of the federal Old-Age, Survivors, and Disability Insurance program limits pursuant to 42 U.S.C. § 430. If the remitting of premiums for an employee results in an overpayment, a covered employee may seek a refund from the Department pursuant to a process set forth by the Department. A request for a refund may require documentation, such as a W-2 form(s) or another statement summarizing earnings and deductions.

E. An employer may seek a refund of a premium overpayment on behalf of covered employees employed by the employer and on behalf of the employer. If an overpayment of premiums is made by the employer, the employer may retain any portion of premiums made by the employer but also must return to its employees any portion of the reimbursed amount that it collected from its employees.

F. A self-employed individual that has elected coverage to obtain benefits must remit to the Department fifty percent (50%) of the premium on the self-individual’s income to the Department. The premium amount will be determined on the self-employed individual’s net income from the prior tax year divided by four for quarterly income. Premiums will be due on the last day of the month following the close of the quarter.

G. A tribal government that has elected coverage to obtain benefits on behalf of their employees must remit to the Department the premiums at the rate of non-tribal government employers to the Department on or before the last day of the month following the close of the quarter.

H. For the purposes of determining premium liability, any employer that employed 15 or more covered employees per that employer's Federal Employer Identification Number (FEIN) on their established payroll in 20 or more calendar workweeks in the 12-month period preceding September 30th of each year will be considered to be an employer of 15 or more employees for the calendar year thereafter. This count includes the total number of persons on establishment payrolls employed full or part time who received pay for any part of the pay period. Temporary and intermittent employees are included, as are any workers who are on paid sick leave, on paid holiday, or who work during only part of the specified pay period. On October 1, 2024, and October 1 of each year thereafter, the employer shall calculate its size for the purpose of determining premium liability for calendar year 2025 and each calendar year thereafter.

I. Employers with 15 or more covered employees shall remit one hundred percent (100%) of the premium but may deduct up to fifty percent (50%) of the premium from the employees’ wages.

Employers with fewer than 15 employees shall remit fifty percent (50%) of the premium but may deduct up to fifty percent (50%) of the premium from employees’ wages. An employer’s determination as to whether or not to deduct premiums from employees’ wages must apply to all employees, except as required for employees of separate collective bargaining agreements with the same employer. If an employer changes that determination, the employer must provide notice to all employees in writing at least seven (7) days prior to the employees’ first affected paycheck.

J. An employer that has been approved for a private plan substitution is exempt from the requirements to remit premiums as specified in Section XIII of this rule. If an employer has not been approved for a private plan substitution, the employer is responsible for remitting premiums to the Fund.

K. Employers who deduct the employee share of the premium from wages must make the deductions from employees’ regularly scheduled paychecks, except that an employee and employer may mutually agree to less frequent deductions as long as the agreement is voluntary and memorialized in writing. Deductions may not be made less frequently than quarterly, even if the employer and employee agree. Employers shall include in the employee’s pay statement that a premium deduction for Paid Family and Medical Leave has been deducted from the employee’s wages.

L. If an employer fails to deduct the required employee share of the premium from wages paid during a pay period, the employer is considered to have elected to pay that portion of the employee share. The employer shall not deduct this amount from a future paycheck of the employee for a different pay period. However, where there is a lack of sufficient employee net wages to cover the employee share of premiums for a pay period, the employer may deduct the uncollected portion of the employee share from one or more paychecks for future pay periods.

XI: Failure to Remit Premiums and Contribution Reports A. An employer that has failed to remit premiums in whole or in part or failed to submit contribution reports on or before the last day of the month following the close of the quarter shall be assessed a penalty of 1.0 percent of the employer’s total payroll for the quarter. The assessment imposed will apply to only the quarter in which the employer failed to remit premiums in whole or in part or submit contribution reports. In addition, the employer shall be liable for the full amount of family leave benefits and medical leave benefits paid to covered individuals for whom it failed to make premium contributions.

B. The Department will notify employers of any delinquent contribution reports no later than 15 days after premiums were due. If the employer fails to remit the delinquent payments or contribution reports on the due date established in the notice, an assessment will be imposed.

C. If an assessment is imposed for failure to pay, the employer may seek an appeal pursuant to

Section XV of this rule.

D. A self-employed individual who elects coverage to obtain paid family or medical leave benefits and fails to submit premiums for at least two consecutive quarters as required in this rule may be disqualified from family leave benefits and medical leave benefits by the Department.

Prior to disqualification, the Department shall notify the self-employed individual that premiums have not been paid in full for at least two consecutive quarters. If the self-employed individual has failed to remit premiums to the Department after 30 days, the self-employed individual will be disqualified. The self-employed individual may appeal a disqualification pursuant to Section XV of this rule.

E. If the self-employed individual has demonstrated successful payments of the delinquent premiums and additional premiums equivalent to the number of quarters the self-employed individual failed or refused to remit premiums, the Department in writing must notify the selfemployed individual of their reinstatement to obtain coverage for paid family or medical leave benefits.

Section XII: Elective Coverage A. Elective coverage is available to self-employed individuals and tribal governments under the following conditions:

1. Electing coverage:

a. A self-employed individual who is a resident of the State of Maine may elect to obtain coverage for paid family or medical leave benefits for themselves by filing a notice of election form provided by the Department and providing a copy of their tax return for the previous year.

b. A tribal government may elect to obtain coverage for paid family and medical leave benefits as an employer for the tribal government’s employees by filing a notice of election form provided by the Department.

c. Elective coverage must be for an initial period of not less than three years, renewable after the initial period in one-year increments.

2. Effect of electing coverage:

a. Approved elective coverage becomes effective on the first day of the first quarter following the approval of the self-employed individual or tribal government’s election.

b. A self-employed individual who has elected for coverage may apply for benefits on the same basis as any other applicant, pursuant to section VI of this rule.

c. A tribal government that has elected for coverage shall be treated for the period of coverage as an employer in the meaning of the Act and these rules.

3. Wages:

a. For self-employed individuals electing coverage, wages are based on net earnings from all self-employment, including but not limited to, income reported to Maine on the personal income tax return from a prior tax year or as filed with the Maine Revenue Services. Applicable tax returns must be submitted annually to the Department by June 1.

b. A self-employed individual’s reported wages must meet the minimum threshold for covered individuals in order to be eligible for PFML benefits. For tribal governments that have elected coverage, quarterly contribution reports must be submitted to the Department consistent with section X of this rule.

4. Withdrawing or renewing coverage:

a. A self-employed individual or tribal government may withdraw from coverage on a form provided by the Department within 30 days following the end of the coverage period. The Department shall notify all elective coverage employers and individuals of the end date of their coverage period no later than 60 days before the end date. If the self-employed individual or tribal government does not withdraw during the specified period, their coverage renews for an additional oneyear period.

b. A self-employed individual may also withdraw from coverage within 30 days if they are no longer a self-employed individual.

c. The effective date of any withdrawal under this section is 30 days after the filing of notice of withdrawal or the date of the Department’s notification of approval of withdrawal, whichever is later.

d. A self-employed individual or tribal government that has been covered but whose coverage has not been renewed may elect coverage again, beginning with an initial three-year period of coverage.

XIII: Substitution of Private Plans A. Employer Substitution 1. An employer may request to substitute a substantially equivalent private plan pursuant to 26 M.R.S. § 850-H. The employer must identify when the proposed substitute plan is a) a fully-insured private plan, approved pursuant to section B, below, or b) a self-insured plan, approved pursuant to section C, below.

2. Applications for substitution may be made after April 1, 2025. Applications for substitution must be submitted online on a form provided by the Department.

Substitutions are made in accordance with the employer’s Federal Employer Identification Number (FEIN) and must provide coverage for all employees within that employer’s FEIN. Applications for substitution may be accepted on a rolling

basis. An application fee set by the Department must be included with the submission of the application. Beginning April 1, 2025, the application fee is $250 for review of the application, and an additional $250 administrative reimbursement fee if the application is approved for the substitution. The application fees may be increased by the Department on January 1, 2026 or thereafter, based upon inflation or based upon a redetermination by the Department that the current application fees do not cover the actual cost for administering private plans. Any such increase in the application fees shall be posted on the Department’s website.

3. An approved substitution is valid for a period of three years.

4. The exemption from the obligation of premiums begins on the first day of the quarter in which the substitution is approved, except if the application for substitution is submitted less than 30 days prior to the end of a quarter, in which case the exemption is effective on the first day of quarter following when the application for substitution was submitted, assuming it is an approval.

a. If employee withholdings were made prior to the substitution being approved, the employer must refund the withholdings to the effective date of the exemption within 30 days from the approval of the substitution and failure to do so may result in a revocation of substitution.

b. The employer is responsible for premiums provided under the Act and this

rule until the effective date of exemption and premiums owed prior to the effective date of exemption must be remitted and are non-refundable.

c. While an employer must have entered a contractual obligation with a certified fully-insured plan or have submitted a bond if a self-insured plan to submit a substitution, the employer may choose to start benefit coverage by May 1, 2026 at the latest.

d. If an employer is found to have not commenced benefit coverage after May 1, 2026 for a substitution approved prior to that date, they will be responsible for paying retroactive premiums from the date of the start of the exemption to May 1, 2026 and cannot deduct the employee’s share of the premium for these retroactive premiums.

e. For substitutions approved after May 1, 2026, benefit coverage must commence on the first day of the first month following the approval of a substitution.

5. Employers approved for a substitution may not request cancellation of their substitution prior to the substitution expiration date except by a demonstration to the Department of significant direct negative business impact. Significant direct negative business impact includes, but is not limited to, evidence of an unanticipated and unreasonable premium increase. If the Department approves the employer’s request for cancellation, the employer may not re-apply for another substitution for three years from the date of cancellation.

6. During the duration of an employer’s substitution, if an employer seeks to make any material change to the approved plan, the employer must notify the Department at least 60 days in advance of the effective date of any proposed change and must receive written approval from the Department. A material change is any change which affects the rights, benefits or protections afforded to employees under the Act.

7. Following approval for substitution, the Department may conduct audits and/or investigate employee complaints to determine whether, in operation, the substituted plan provides the rights, benefits, and protections that are substantially equivalent to those provided in the Act. Failure to demonstrate adequacy of performance may lead to revocation of a private plan substitution in this rule.

8. If the employer’s approved plan is canceled due to nonpayment of premium, the employer’s approved substitution will be revoked. If an employer’s substitution is revoked for any reason, the employer will be responsible for premiums, beginning with the first quarter following revocation. The employer is prohibited from seeking another substitution for a period of three years from the date of the revocation unless the Department allows a lesser period of time.

9. The Department shall notify employers in writing of the end date of their approved substitution sixty (60) days prior to the end date. Employers must submit an application for renewal thirty (30) days prior to the end date of their approved substitution. If the employer fails to apply to renew or if the renewal is denied, the employer must remit both the employer and employee contributions to the Fund calculated from the date of the prior exemption expiration, and the employer may not deduct the employees’ portion from payroll.

10. An employer with an approved substitution must collect and submit all data required under 26 M.R.S. § 850-E (6) to the Department. The employer must submit this data no later than July 31 each year. Data reports prepared for fully insured private plans by insurance companies offering such plans to several employers may meet the requirement of this paragraph. Failure to submit data reports may result in revocation of the substitution.

11. An employer with an approved substitution must submit to the Department contribution reports for each employee on a quarterly basis online, pursuant to section X of this rule of this rule. Failure to file contribution reports may result in revocation of the substitution.

12. An employer with an approved substitution must provide appropriate tax forms for benefits to employees taking leave based on guidance from the Internal Revenue Service and Maine Revenue Services around the taxability of such benefits.

13. An employer may appeal a denial of substitution, a denial of cancellation, a revocation, or the issuance of any penalty for violation pursuant to section XV of this

rule within 15 business days from the date the decision of denial or revocation is issued.

B. Fully-Insured Private Plans 1. An insurer licensed in accordance with Title 24-A may offer fully-insured insurance plans that are substantially equivalent to the requirements of 26 M.R.S. 850-H and this

Rule. The fully-insured plan must comply with all requirements of the Maine Insurance Code. An issuer shall not deliver or issue for delivery a policy or certificate to a resident of this State unless the policy form or certificate form has been filed with and approved by the Superintendent of Insurance in accordance with filing requirements and procedures prescribed by the Maine Insurance Code and applicable rules.

2. Policy cancellation and nonrenewal is subject to the requirements of the Maine Insurance Code and applicable rules. The employer shall notify the Department of the cancellation or nonrenewal at least 10 days before the termination takes effect.

3. An insurer may cease offering a fully-insured plan if:

a. Notice of the decision to cease offering such plans is filed with the Bureau of Insurance at least three (3) months prior to the cessation unless a shorter notice period is approved by the Superintendent of Insurance; and b. If existing contracts are nonrenewed, notice must be provided to the policyholder six (6) months prior to nonrenewal.

4. An insurer that discontinues the availability of a policy form or certificate form issued pursuant to this rule shall not file for approval of a policy form or certificate form for a fully-insured plan for a period of five (5) years after the insurer provides notice to the Superintendent of Insurance of the discontinuance. The period of discontinuance may be reduced if the Superintendent of Insurance determines that a shorter period is appropriate.

5. An insurer may request certification of a proposed plan as substantially equivalent pursuant to 26 M.R.S. § 850-H by providing a copy of the proposed plan documents to the Department along with an application form and fee as determined by the Department.

The Department may delegate to the Maine Bureau of Insurance (BOI) authority to review and approve plan applications for compliance with the Maine Insurance Code and for compliance with a Paid Family Medical Leave eligibility checklist jointly developed by the Department and the BOI. If after BOI review, the Department determines the insurer’s proposed plan is substantially equivalent, the Department shall issue a certificate of eligibility.

C. Self-Insured Private Plans 1. An employer may request certification of a self-insured, employer provided plan as substantially equivalent pursuant to 26 M.R.S. § 850-H by providing a copy of the proposed plan documents to the Department along with an application form and fee as determined by the Department. The Department may use the checklist jointly developed with the assistance of the BOI to determine eligibility. If the Department deems that the self-insured plan is substantially equivalent the Department shall issue a certificate of eligibility.

2. An employer proposing to substitute a self-insured plan may apply for both certification and substitution simultaneously.

3. The employer must also furnish to the Department a bond, in an amount determined by the Department, with a surety company authorized to transact business in Maine. The employer must submit a certification form to the Department in the amount required at the time the application is submitted.

D. Determination of Substantial Equivalence 1. The Department, in consultation with the BOI as necessary, shall determine whether a proposed plan is substantially equivalent and therefore eligible for substitution. To meet the requirement that a private plan confer rights protections and benefits substantially equivalent to those provided to employees under the Paid Family Medical Leave Act, a private plan need not be identical to the provisions set forth in the Act.

2. The following minimum requirements must be met in order to be determined substantially equivalent:

a. The plan must provide for family leave and medical leave to be taken for: the covered individual’s own serious health condition; safe leave; a qualifying exigency; bonding leave; to care for a family member who is a covered service member; to care for a family member with a serious health condition; and for any other reason set forth in 26 M.R.S. § 843(4);

b. The plan must provide leave to care for a family member and must account for all definitions of family listed in §850-A(19);

c. The plan must allow for at least 10 weeks of aggregate leave per benefit year;

d. The plan must allow a covered individual to take intermittent or reduced schedule leave, except that the requirements of section III(B) of this Rule need not be met;

e. The cost to employees of the plan may not be greater than the cost charged to employees under § 850-F of the Act; and f. The plan must provide an internal reconsideration process for denial of family leave benefits or medical leave benefits.

3. Any plan which does not meet the minimum criteria in paragraph 2 may not be determined as substantially equivalent and shall not be eligible for substitution. If all of the above criteria are met, the Department shall determine whether the plan provides the same or greater aggregate monetary benefit to employees. This shall be determined by comparing the plan’s wage replacement amount multiplied by the maximum number of weeks to the maximum Weekly Benefit Amount under the Act multiplied by 12 weeks. If the former is equal to or greater, the plan may be determined to be substantially equivalent and therefore eligible for substitution.

4. Examples of a plan that is substantially equivalent but not identical include, but are not limited to, the following:

a. A plan that provides the amount of leave set forth in 850-B (4) during a 12month period shall be found to be substantially equivalent even if that 12-month period is not calculated in a manner identical to a “benefit year” as defined in 26 M.R.S. § 850-A(5);

b. A plan that provides for intermittent or reduced schedule leave but requires that such leave may only be taken in minimum increments of four (4) hours may be found to be substantially equivalent;

c. A plan that calculates an employee’s benefit using a different lookback period or based upon the employee’s actual wages at the time that leave begins may be found to be substantially equivalent if the requirements of paragraph 3, above, are met.

5. Notwithstanding the above provisions, the following may not be determined as substantially equivalent and therefore shall not be eligible for substitution:

a. A plan which provides benefits only for the covered individual’s own serious health condition, such as a short term or long term disability plan; and b. A plan which consists of leave benefits provided pursuant to employer policy and which are subject to change at the employer’s discretion; and c. A plan that consists of leave benefits that need to be accrued (such as sick, vacation, or paid time off) that does not provide full coverage of benefits regardless of time with the employer or availability of accrued time.

6. The Department shall evaluate any appeal pursuant to § 850-H (5) in terms of whether it constitutes grounds for withdrawal of approval of substitution.

Section XIV: Returning From Leave A. Any employee that has been employed with their employer for at least 120 consecutive calendar days is entitled, upon return from leave, to be restored by the employer to the position held by the employee when the leave commenced, or to be restored to an equivalent position with equivalent employment benefits, pay and other terms and conditions of employment.

Whether a position is equivalent for the purposes of the Act shall be governed by 29 C.F.R. § 825.215 (eff. Feb. 6, 2013) subject to the limitations under 29 C.F.R. § 825.216 (eff. Feb. 6, 2013).

B. If an employee is on initial probation at the time that the employee begins leave, the employer may toll the employee’s probationary period during the period of the employee’s leave, including intermittent or reduced schedule leave, and doing so shall not be considered a violation of § 850- B (8) or § 850-J (2) of the Act.

C. If at any point an employee notifies the employer in writing that they do not intend to return to their job at the end of their leave, the employer is no longer obligated to hold the job open.

Section XV: Appeals A. An aggrieved party may appeal the following issues to the Department within 15 business days from the date the decision is issued, except that the period within which an appeal may be filed may be extended for a period not to exceed an additional 15 business days, for good cause shown. Good cause for the late filing of an appeal is at the discretion of the Department. Issues which may be appealed are:

1. Denials of applications for benefits;

2. Issues as to the amount of benefits;

3. Findings that an employer determination of undue hardship is unreasonable;

4. Delay or denial of a claim for benefits due to a finding of reasonable undue hardship;

5. Any fine or penalty imposed, including fines related to late or non-payment of premiums;

6. Disqualification of a self-employed individual;

7. Disapproval or revocation of private plan substitutions;

8. Findings of fraud; and 9. Denial of waiver of overpayments.

B. The Department shall appoint a qualified Hearing Officer, employed or contracted by the Department, to hear any appeal.

C. Hearings on appeals conducted pursuant to this rule shall be adjudicatory proceedings, governed by the Maine Administrative Procedures Act (MAPA), 5 M.R.S. § 9051-9064.

D. Hearings may be conducted by telephone or by video conference.

E. The Hearing Officer shall issue such orders as are necessary for efficient and expeditious processing of an appeal. The Hearing Officer may require exhibits and/or witness lists to be filed in advance of the hearing.

F. A Notice of Hearing must be issued to the appealing party, and to the extent applicable, the covered individual, the employer and the Administrator at least ten (10) business days before the date of the hearing.

G. The Administrator must submit documents to the Hearing Officer relating to the issue on appeal and any reconsideration decision within 5 days after notification by the department.

Such documents shall be provided to all parties. The Administrator is not required to appear at the hearing, unless directed to appear by the Hearing Officer.

H. The Hearing Officer will make a decision de novo and is not required to defer to any decision by the Administrator. The Department may designate certain decisions by Hearing Officers to be precedent in similar appeals. The Department may issue written guidance, which will be publicly available, to ensure consistency between Hearing Officers in determining similar issues.

I. Decisions of the Hearing Officer shall be in writing and shall state the Hearing Officer’s findings of fact and basis for the decision. Decisions by the Hearing Officer shall constitute final agency action within the meaning of 5 M.R.S. § 8002 (4) and shall be reviewable in Superior Court pursuant to 5 M.R.S. § 11001 et. seq.

Section XVI: Advisory Rulings A. Advisory rulings may be made by the program with respect to the applicability of any statute or rule administered by the program.

B. All requests for advisory rulings shall be made in writing and submitted to the director of the Paid Family and Medical Leave Program, 50 State House Station Augusta, Maine. The request must include the following:

1. The name, address, and telephone number of the person requesting the ruling;

2. Facts that establish the substantial interest of the requesting person to the program with respect to which the ruling is requested;

3. The statute or rule of which an interpretation is requested;

4. All facts that are necessary to issue the advisory ruling;

5. All assumptions that relate to the advisory ruling; and 6. A statement indicating whether to the requester’s knowledge, the issue upon which an advisory ruling is sought is the subject of a pending matter with respect to adjudication of claims for benefits, application for substitution of private plans, enforcement of penalties including revocation of substitution regarding private plans, a pending appeal to which the requested person is an aggrieved party or a prior advisory ruling.

C. The director of the program may request from any person securing an advisory ruling any additional information that is necessary. Failure to supply such additional information shall be cause for the program to decline to issue an advisory ruling.

D. Issuance of advisory rulings by the program is discretionary and will be determined on a case-by-case basis. The program shall either issue a written advisory ruling or notify the requester of the reasons that an advisory ruling will not be rendered no later than 60 days from the date all information necessary to make a ruling was submitted to the director of the program.

E. The program may decline to issue an advisory ruling if any administrative or judicial proceeding is pending with the person requesting the ruling on the same factual grounds.

The program may decline to issue an advisory ruling if such a ruling may harm the program interest in any litigation in which it is or may be a party.

F. No advisory ruling shall be binding upon the program provided that in any subsequent enforcement action initiated by the department, any person's reliance on such ruling shall be considered in mitigation of any penalty sought to be assessed.

History

• STATUTORY AUTHORITY: 26 M.R.S. § 850 – Q
• EFFECTIVE DATE: January 1, 2025 FISCAL IMPACT ON MUNICIPALITIES AND COUNTIES: minimal costs for reporting requirements