HP0822, LD 1157, item 1, An Act To Establish the Fair Chance for Employment Act

An Act To Establish the Fair Chance for Employment Act

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 26 MRSA §42, first ¶, as amended by PL 1999, c. 649, §1, is further amended to read:

The bureau shall collect, assort and arrange statistical details relating to all departments of labor and industrial pursuits in the State; to trade unions and other labor organizations and their effect upon labor and capital; to the number and character of industrial accidents and their effect upon the injured, their dependent relatives and upon the general public; to other matters relating to the commercial, industrial, social, educational, moral and sanitary conditions prevailing within the State, including the names of firms, companies or corporations, where located, the kind of goods produced or manufactured, the time operated each year, the number of employees classified according to age and sex and the daily and average wages paid each employee; and the exploitation of such other subjects as will tend to promote the permanent prosperity of the industries of the State. The director is authorized and empowered, subject to the approval of the Governor, to accept from any other agency of government, individual, group or corporation such funds as may be available in carrying out this section, and meet such requirements with respect to the administration of such funds, not inconsistent with this section, as are required as conditions precedent to receiving such funds. An accounting of such funds and a report of the use to which they were put must be included in the biennial report to the Governor. Each agency of government shall cooperate fully with the bureau's efforts to compile labor and industrial statistics. The director shall cause to be enforced all laws regulating the employment of minors; all laws established for the protection of health, lives and limbs of operators in workshops and factories, on railroads and in other places; all laws regarding consideration of employment status in hiring practices; all laws regulating the payment of wages; and all laws enacted for the protection of the working classes. During an investigation to enforce those laws, the director may request records and other information relating to an employer's compliance with unemployment compensation and workers' compensation laws, including information needed to determine whether the employer has properly classified a worker as an independent contractor, and shall report suspected violations of those laws to the state or federal agency responsible for enforcing them. The director may adopt, in accordance with the Maine Administrative Procedure Act, rules regarding all such laws, except where this authority is granted to a board or commission. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter II-A 2-A. The director shall, on or before the first day of July, biennially, report to the Governor, and may make such suggestions and recommendations as the director may deem consider necessary for the information of the Legislature. The director may from time to time cause to be printed and distributed bulletins upon any subject that is of public interest and benefit to the State and may conduct a program of research, education and promotion to reduce industrial accidents. The director may review various data, such as workers' compensation records, as well as other information relating to any public or private employer's safety experience. When any individual public or private employer's safety experience causes the director to question seriously the safe working environment of that employer, the director may offer any safety education and consultation programs to that employer that may be beneficial in providing a safer work environment. If the employer refuses this assistance or is in serious noncompliance which that may lead to injuries, or if serious threats to worker safety continue, then the director shall communicate concerns to appropriate agencies, such as the United States Occupational Safety and Health Administration. As used in this section, the term "noncompliance" means a lack of compliance with any applicable health and safety regulations of the United States Occupational Safety and Health Administration or other federal agencies. The bureau is responsible for the enforcement of indoor air quality and ventilation standards with respect to state-owned buildings and buildings leased by the State. The bureau shall enforce air quality standards in a manner to ensure that corrections to problems found in buildings be made over a reasonable period of time, using consent agreements and other approaches as necessary and reasonable.

Sec. 2. 26 MRSA c. 7, sub-c. 1-C is enacted to read:

SUBCHAPTER 1-C

FAIR CHANCE FOR EMPLOYMENT ACT

§ 614. Short title

This subchapter may be known and cited as "the Fair Chance for Employment Act."

§ 615. Definitions

As used in this subchapter, unless the context otherwise indicates, the following terms have the following meanings.

1. Affected individual. "Affected individual" means an individual who was refused consideration for employment or was not hired by an employer because of the individual's current employment status or an individual who was not recruited, screened, considered or referred for employment opportunities by an employment agency because of the individual's current employment status.

2. Contracting agency. "Contracting agency" means a state agency that has the authority to make and administer contracts and to make determinations and findings with respect to contracts or the state agency's authorized representative.

3. Contractor. "Contractor" means a person that is a party to a government contract other than the government and includes the department, division, subcontractor or other unit of a person responsible for the performance under the contract.

4. Current employment status. "Current employment status" means an individual's current status as employed or unemployed.

5. Director. "Director" means the Director of the Bureau of Labor Standards within the Department of Labor.

6. Employer. "Employer" means a person engaged in commerce or any industry or activity affecting commerce that has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year and includes:

A. A person who acts, directly or indirectly, in the interest of an employer with respect to employing individuals to work for the employer; and

B. Any successor in interest of an employer.

7. Employment agency. "Employment agency" means a person regularly undertaking, with compensation and for profit, to procure employees for an employer or to procure for individuals opportunities to work for an employer and includes an agent of such a person.

8. Online job website. "Online job website" means any publicly accessible website that provides online job postings.

9. Person. "Person" means an individual, partnership, association, corporation, business trust, legal representative or any organized group of persons.

§ 616. Prohibited acts

1. Employers; unlawful practices. An employer may not:

A. Fail or refuse to consider for employment or to offer employment to an individual because of the individual's current employment status;

B. Publish, in print, on the Internet or in any other medium, an advertisement or announcement for a job vacancy that includes:

(1) A provision stating or indicating that current employment status is a requirement or qualification for the job; or

(2) A provision stating or indicating that an employer will not consider an individual for employment based on current employment status; or

C. Direct or request that an employment agency take current employment status into account in screening or referring individuals for employment.

2. Employment agencies; unlawful practices. An employment agency may not:

A. Fail or refuse to consider or refer an individual for employment based on the individual's current employment status;

B. Limit, segregate or classify an individual in any manner that may limit the individual's access to information about jobs or limit the individual's number of referrals for consideration of jobs because of current employment status; or

C. Publish, in print, on the Internet or in any other medium, an advertisement or announcement for a job vacancy that includes:

(1) A provision stating or indicating that current employment status is a requirement or qualification for the job; or

(2) A provision stating or indicating that the employer will not consider individuals for employment based on current employment status.

3. Online job websites; unlawful practices. A person may not publish on an online job website an advertisement or announcement for a job vacancy that includes:

A. A provision stating or indicating that current employment status is a requirement or qualification for the job; or

B. A provision stating or indicating that the employer will not consider individuals for employment based on current employment status.

4. Interference with rights. An employer or employment agency may not:

A. Interfere with, restrain or deny the exercise of or the attempt to exercise any right provided under this subchapter; or

B. Refuse to hire, discharge or in any other manner discriminate against any individual for the individual's opposing any practice made unlawful by this subchapter.

5. Interference with proceedings or inquiries. A person may not discharge or in any other manner discriminate against an individual because that individual:

A. Has filed a charge or has instituted or caused to be instituted any proceeding pursuant to this subchapter;

B. Has given, or is about to give, any information in connection with an inquiry or proceeding instituted pursuant to this subchapter; or

C. Has testified, or is about to testify, in an inquiry or proceeding instituted pursuant to this subchapter.

6. Civil violation. A person that violates subsection 3, 4 or 5 commits a civil violation for which a fine of not less than $250 and not more than $1,000 for each violation, payable to the State, may be adjudged.

7. Employment history. Nothing in this subchapter is intended to preclude an employer or employment agency from considering an individual's employment history or from examining the reasons underlying an individual's employment status in assessing an individual's ability to perform a job or otherwise making employment decisions about that individual.

§ 617. Investigative authority

To ensure compliance with the provisions of this subchapter or any rule adopted or order issued under this subchapter, the director may enter an employer's workplace and examine all the employer's records related to allegations of violations of section 616. An employer or employment agency shall make, keep and preserve records pertaining to compliance with this subchapter.

§ 618. Private civil action

1. Civil action by individual. An employer or employment agency that violates section 616, subsection 1 or 2 is liable to an affected individual for:

A. Actual damages equal to the amount of:

(1) Any wages, salary, employment benefits and other compensation denied or lost to the individual by reason of the violation; or

(2) In a case in which wages, salary, employment benefits or other compensation has not been denied or lost to the individual, any actual monetary losses sustained by the individual as a direct result of the violation or damages in the amount of $1,000 per violation per day, whichever is greater;

B. Reasonable interest on the amount described in paragraph A calculated at a rate determined by the court;

C. An additional amount as liquidated damages equal to the sum of the amount described in paragraph A and the interest described in paragraph B except that, if an employer or employment agency that has violated section 616 proves to the satisfaction of the court that the act or omission that violated section 616 was in good faith and that the employer or employment agency had reasonable grounds for believing that the act or omission was not a violation of section 616, the court may, in its discretion, reduce the amount of the liability to the amount and interest determined under paragraphs A and B, respectively; and

D. Any equitable relief the court may determine appropriate, including employment as well as compensatory and punitive damages.

2. Right of action. An action to recover the damages or equitable relief prescribed in subsection 1 may be maintained against an employer or employment agency in the Superior Court by one or more persons for and on behalf of:

A. The affected individual; or

B. The affected individual and other individuals similarly situated.

3. Fees and costs. If the plaintiff is successful in an action brought under this section, in addition to any judgment it awards, the court shall require the defendant to pay the plaintiff's reasonable attorney's fees, reasonable expert witness fees and other costs of the action.

4. Limitations. An action taken by an affected individual under subsection 1 may be brought not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought except that the limitation for filing an action is tolled during the period that the director is considering a complaint against a defendant named in a complaint filed under section 619, subsection 1. The right provided by subsection 2 to bring an action by or on behalf of an affected individual and other individuals similarly situated terminates on the filing of a complaint by the director in an action under section 619 in which a recovery is sought of the damages described in subsection 1, paragraph A to an affected individual by an employer or employment agency liable under subsection 1.

§ 619. Action by the director

1. Duty. The director shall receive, investigate and attempt to resolve complaints of violations of section 616.

2. Civil action. The Department of Labor may bring a civil action in Superior Court:

A. To enjoin violations of this subchapter and seek other relief going forward necessary to prevent future violations;

B. To recover on behalf of an affected individual the damages described in section 618, subsection 1, paragraph A; or

C. To seek any other equitable relief the court determines appropriate.

3. Nonlapsing fund. There is created in the Department of Labor a nonlapsing fund to carry out the purposes of this subchapter. Any sums recovered by the Department of Labor pursuant to subsection 2, paragraph B must be placed in this fund and paid directly to the affected individual or individuals on behalf of whom the action was brought. Any sums recovered pursuant to subsection 2, paragraph B that are not paid to an affected individual because of the death of the affected individual or the inability of the Department of Labor to locate the affected individual within a period of 3 years, and any interest earned on this fund, must be paid to the Treasurer of State for deposit to the General Fund.

§ 620. Termination or debarment of contractors and subcontractors

1. Grounds for termination and debarment. If a contractor that has a contract with a state agency has been found by a court of competent jurisdiction to have engaged in any of the prohibited acts enumerated in section 616, subsection 1, 2, 4 or 5 in an action brought under section 618 or 619, the Department of Labor may, after consulting with the contracting agency:

A. Direct the contracting agency to cancel, terminate or suspend the contract or any portion of the contract; and

B. Debar the contractor from participation in state contracts for a period not to exceed 3 years.

§ 620-A. Exception

This subchapter does not apply to instances in which current employment status is a bona fide occupational qualification reasonably necessary to successful performance in the job.

summary

This bill establishes the Fair Chance for Employment Act and does the following.

1. It prohibits employers from refusing to consider for employment or offer employment to an individual based on the individual's status as employed or unemployed. Employers are also prohibited from advertising that current employment status is a qualification or requirement for a job or that the employer will not consider an applicant based on current employment status. Employers are prohibited from directing an employment agency to take current employment status into consideration when screening or referring applicants.

2. It prohibits employment agencies from failing to consider or refer applicants based on employment status, advertising that employment status is a qualification or requirement for a job or that an employer will not consider applicants based on current employment status or discriminating against individuals in any manner that may limit their access to information about jobs or limit the individuals' number of referrals for consideration of jobs because of their current employment status.

3. It prohibits online job websites from publishing any advertisement for a job vacancy that includes any provision requiring or indicating that current employment status is a qualification or requirement for a job or that an employer will not consider applicants for employment based on current employment status.

4. It prohibits an employer or employment agency from interfering with individuals exercising their rights under this Act or otherwise discriminating against individuals for opposing any practice made illegal by this Act. It also prohibits discriminating against any individual who has filed a complaint or caused to be instituted any proceeding under this Act or who otherwise gives or may give information or testimony in connection with any inquiry or proceeding under this Act.

5. It requires employers and employment agencies to keep records pertaining to compliance with this Act, and it gives the Director of the Bureau of Labor Standards within the Department of Labor the investigative authority to enter places of business and examine all records related to allegations of violations of this Act.

6. It creates a right for a person who has been affected by a violation under this Act to bring a civil action against the employer or employment agency responsible. A person may bring a civil action on behalf of another individual who has been affected by a violation of this Act or a group of individuals similarly situated.

7. It grants the Department of Labor the power to file a civil action on behalf of an individual or group of individuals against an employer or employment agency that violates the Act. Once the director begins such a lawsuit, there is no more private right to a civil action on behalf of the individual.

8. It creates a duty for the Director of the Bureau of Labor Standards to enforce all laws relating to consideration of employment status in hiring practices, as well as the specific duty to receive, investigate and attempt to resolve complaints of violations of this Act.

9. It gives the Department of Labor the authority to terminate state contracts and debar a contractor from participating in state contracts for a period of up to 3 years when a contractor has been found by a court to be in violation of this Act.

10. It would not prohibit employment decisions or advertisements when a requirement related to employment status is a bona fide occupational qualification reasonably necessary to successful performance in the job. It also would not preclude an employer from considering employment history or the reasons underlying an individual's employment status.

HP0822 LD 1157	Session - 126th Maine Legislature		LR 18 Item 1
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