by Michael K. Mahoney, Esq.

Last year, the Maine Legislature ordered the Maine Human Rights Commission to report back to the Legislature’s Judiciary Committee in 2004 on “the number of complaints the Commission has received in which a complainant-employee has suffered discrimination through actions or inaction of a supervisor, but the employer has an affirmative defense against liability.”

Earlier this year, the Commission issued its report on this issue.  Notably, the Commission’s report limited itself in large part to cases numbering twelve in all -- from 2000-2003 involving allegations of affirmative sexual harassment by the supervisor against the complainant-employee.  Of those twelve cases, the Commission found as follows: (a) five cases: no finding against either the supervisor or the employer; (b) seven cases: findings against both the supervisor and the employer: In four of the seven, the employer was found liable because it failed to take prompt corrective action, while in the other three the employer was automatically found liable because complainant-employee was ultimately terminated.

In response to the specific question presented by Resolve 2003, c. 36, the Commission’s response was that there were no cases in which the Commission found Maine Legislature that the supervisor harassed a subordinate employee and the company escaped liability because it took prompt corrective action.  The Commission’s report is quick to point out, however, that had the employer taken prompt corrective action in the four cases noted above, the complainant-employee “would have had a remedy only if the harassing supervisors could be held individually liable for their actions.”

Although Resolve 2003 c. 36 specifically authorizes the Judiciary Committee to report out legislation based on the Commission’s findings, there has been no suggestion that a bill is forthcoming.  Any bill would likely be brought by L.D. 523’s original sponsor, Rep. Deborah Simpson (D-Auburn). 

In other developments, the Legislature has considered the following employment-related bills:

L.D. 575, An Act to Encourage Workers’ Compensation Dispute Resolutions: Carried over from last session, this bill seeks to impose a $1,500 penalty on an employer when, after formal hearing, its employee is awarded an amount greater than that which was offered by the employer prior to hearing.  This bill received a majority “ought to pass” recommendation from the Labor Committee, but was rejected by the House in a preliminary vote, 69-64.  Further votes are expected in the coming days.

L.D. 673, An Act to Increase Maine’s Minimum Wage:  Also a carry-over, this bill proposes to increase gradually Maine’s minimum wage to $7 in the next two years.  Also endorsed by a majority of the Labor Committee, this bill has not yet been voted upon by the full Legislature.

L.D. 880, An Act to Eliminate the Social Security Offset for Unemployment Benefits:

As originally proposed, this bill sought to eliminate any reduction in an individual’s unemployment benefits due to his/her receipt of social security or other benefits.  As finally enacted, however, the Department of Labor is merely directed to study this issue and submit a report to the Labor Committee in November, 2004.

L.D. 1760, An Act to Amend the Random Drug Testing Laws:  As amended, this bill broadens employers’ rights to perform random drug testing on employees.  Currently, only those employees in safety-sensitive positions or who are subject to collective bargaining agreements may be randomly tested.  This bill allows employers of 50 or more employees to randomly test any employee, so long as the employer follows certain procedures in, among other things, forming an employee committee to develop and implement the testing policy and submitting the policy to the Department of Labor for approval.  L.D. 1760 has been enacted by both the House and Senate, and is expected to be signed by the Governor.

L.D. 1909, An Act to Promote Decision-making Within the Workers’ Compensation Board: Recently introduced by the Governor, this bill seeks to reconstruct the currently-deadlocked Workers’ Compen-sation Board as follows: three management representatives, three labor representatives, and one executive director, who serves at the pleasure of the Governor and who is subject to legislative confirmation, to cast the seventh, and potentially tie-breaking vote.  Endorsed by both the Maine State Chamber of Commerce and the AFL-CIO, this bill appears to have widespread support and is expected to gain legislative approval in the coming weeks.

S.P. 673, Joint Order, Directing the Labor Committee to Report Out a Bill Relating to the Permissible Uses of Sick Leave and Establishing a Minimum Sick Leave Benefit: this proposal seeks to require employers to allow both full-time and part-time employees to accrue paid sick leave (totaling five days per year for employees working at least 25 hours per week) that employees may use to care for themselves or a family member.  Opposed by the State Chamber of Commerce and various employers at the public hearing, it appears at least for now that a majority of the Labor Committee does not support moving forward with this proposal this session.