The Maine Department of Labor has published updates to their Frequently Asked Questions on Earned Paid Leave document. New and updated FAQs are listed below and a complete list of FAQs can be found online at https://www.maine.gov/labor/labor_laws/earnedpaidleave/.
1. Employer Question: How do I calculate the rate I pay employees when they use accrued Earned Paid Leave?
Answer: The Earned Paid Leave law states that earned leave must be paid at least the same base rate of pay that the employee received immediately before taking earned leave and that employees must receive the same benefits as those provided under established policies of the employer pertaining to other types of paid leave.
The Rules define the base rate of pay as follows: 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.
The section of the Minimum Wage statute that defines the regular rate of pay applies to non-exempt employees only. Salaried exempt employees are paid a predetermined fixed amount, so their base rate of pay is the hourly equivalent of their salary.
The base rate of pay for nonexempt employees is calculated by dividing the total straight-time earnings for the week, which includes any additional compensation included in the definition of the regular rate, by the total hours worked.
26 MRS §664 (3) establishes that the regular hourly rate includes all earnings, bonuses, commissions, and other compensation that is paid or due based on actual work performed and does not include any sums excluded from the definition of “regular rate” under the Fair Labor Standards Act, 29 USC, section 207(e).
NOTE: Half-time wages associated with overtime pay is excluded from the definition of “regular rate” and therefore not included in the base rate calculation.
Fair Labor Standards Act: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/FairLaborStandAct.pdf
5. NEW Question: How do I calculate the base rate when an employee receives a nondiscretionary bonus and/or commission?
Answer: Bonuses and Commissions are factored into the base rate for non-exempt employees only. However, only the amount associated with the week immediately prior to the employee using Earned Paid Leave will apply. For example, if the employee is paid on a weekly basis and the bonus or commission is also paid on a weekly basis, then the total amount of the bonus or commission will apply to that week. If the bonus or commission payment is deferred (i.e., paid on a monthly, quarterly, annual, or other specific timeframes) then the bonus or commission can be prorated to a weekly amount.
Example 1:
Employee worked 40 hours at $15 per hour = $600
Employee received a weekly bonus of $100
Total earnings for the week are $600 + $100 = $700
$700 ÷ 40 hours = $17.50 base rate
Example 2:
Employee worked 40 hours at $15 per hour = $600
Employee received a monthly bonus of $100. (in this example the bonus applies to a month with 30 days. $100 ÷ 30 days = $3.33 per day x 7 days in the week = $23.31 bonus applies to one week
Total earnings for the week are $600 + $23.31 = $623.31. $623.31 ÷ 40 hours = $15.58 base rate.
19. NEW Employer Question: Can I offer my employees the ability to cash out their Earned Paid Leave during the year?
Answer: Whether an employer allows an employee to receive cash in lieu of actually taking time off is solely at the discretion of the employer. However, an employer cannot mandate than an employee take cash rather than using their accrued Earned Paid Leave
42. Question: Are non-citizens eligible for Earned Paid Leave?
Answer: The Earned Paid Leave Law specifies that employment for purposes of Earned Paid Leave has the same meaning as employment in the Employment Security Act, 26 M.R.S. § 1043(11). The Employment Security Act does not exclude non-citizens from coverage. However, H-2A workers are exempt under this statute.
For purposes of the Earned Paid Leave law, if the work performed by non-citizens is considered covered employment, according to the Employment Security Act, then non-citizens will be entitled to Earned Paid Leave. The Bureau of Labor Standards does not take into account a worker’s immigration status when it comes to worker protections and rights under labor laws.
See USCIS’s web site at https://www.uscis.gov for more information on work authorization.
57. Employer Question: How is the poster requirement of the Earned Paid Leave law met?
Answer: The requirement is met by downloading and posting the Bureau of Labor Standard’s “Regulation of Employment” poster with a revision date no older than 10/2020.
If all employees are working remotely, a business can meet this requirement by making this poster available for all employees to view on the business’s intranet. However, if any employee is working in a physical location, this and all other required posters must also be physically displayed where employees can see it.
Please note that this poster is also available in Arabic, French, Haitian Creole, Khmer, Kinyarwanda, Portuguese, Somali, and Spanish. The posters displayed at the worksite should be in the primary language(s) of your employees.