Employment-at-Will Update: Labor committee reconsiders LD 553, but fails to improve it

Citing his party’s need to make “structural reforms” in this legislative session, including the issue of ending “at-will” employment in Maine, Labor and Housing Senate Chair Sen. Craig Hickman (D-Kennebec) led the effort to reconsider LD 553, An Act to End Employment at Will, sponsored by Rep. Michael Sylvester (D-Portland), in what is likely to be the committee’s final work session on Wednesday, May 26.

There were a flurry of motions and votes taken by the committee on the bill. By the time the committee was finished its work, three different reports on LD 553 emerged – two different “ought to pass” reports, and one “ought not to pass” report. Again, there were some members of the committee not present, so accurate counting of votes was difficult. As of close of business, five Democrats were supporting a slightly amended version of LD 553; five Republicans were voting “ought not to pass,” and two Senate Democrats were supporting their own version of LD 553, consisting of a resolve to study the impact of employment at will in Maine.
 
With respect to the first “ought to pass” report, the original bill was amended to “clarify” that seasonal layoffs and layoffs due to economic contractions or downturns – or as a result of a public health incident, like the pandemic – did not require a “for cause” standard before being undertaken by a business. The actual language was not shared with the business community, only on a YouTube screen, so it is difficult to judge whether the amendment addresses what is a significant business concern.
 
In addition, it appears that, going forward, all Maine businesses with more than five employees will need to develop and maintain a “written personnel policy.” What this means exactly, is unclear. Regardless, these amendments to LD 553 do not change the strong opposition from the Maine State Chamber and 44 additional Maine business groups and associations.
 
The House Democrats’ version of the bill still would prohibit an employer with five or more employees from terminating the employment of an employee without “just cause.” The bill specifies an employer may – with limited exceptions – terminate an employee only after applying a written three-step progressive discipline policy, documenting each step in writing, and providing written notice of termination in accordance with certain requirements. LD 553 also includes a private right for aggrieved employees to sue employers. It will still impose a costly, burdensome, complicated, and litigious discipline and termination process for all but Maine’s smallest employers – the types of provisions that are part of job security, collective bargaining contracts negotiated between management and labor, where workers are unionized. To be clear, the Maine State Chamber remains steadfastly opposed to any version of any bill that ends employment at will in Maine.
 
With respect to Sen. Hickman’s “ought to pass” version of LD 553, it appears to propose a Resolve directing the Maine Department of Labor (DOL) and the Maine Department of Economic and Community Development (DECD) to pull together a stakeholder group – businesses, employees and their representatives, economists, and others to be determined – to study and report back to the legislature on the effect of “employment at will” on businesses, employees, and our state’s economy. Again, the actual language of the Resolve was not shared or available to us at the time of the work session, so the make-up of the stakeholder group and their specific charge is unclear.  Nonetheless, Sen. Hickman was joined by his fellow caucus member, Sen. Dave Miramant (D-Knox), in voting “ought to pass.”
 
Clearly members of both parties are hearing from Maine businesses that are extremely concerned about the potential passage of LD 553. While at least one committee member attempted to denigrate the opposition to the bill from the grassroots voices of small business across the state of Maine, LD 553 represents, in truth, a disaster for Maine’s businesses and any future economic development efforts. This includes any ongoing “study” of the potential elimination of “at-will” employment in our state.
 
The Maine State Chamber remains opposed to BOTH “ought to pass” reports on LD 553, and strongly supports the “ought not to pass” recommendation of the Labor committee’s Republican members. For additional information or questions, please contact Peter Gore by calling (207) 623-4568, ext. 107, or by emailing [email protected].