129th Maine Legislature Update

The First Regular Session of the 129^th Maine Legislature has adjourned, leaving a number of new laws for us all to understand and comply with. Listed below by topic area are what we believe are some of the most important new laws for our clients and readers to know about. We have provided summaries to highlight the major effects of these new laws, but as always, there are details. Please let us know if you are interested in how these new laws might affect you or your business, institution, or governmental body.

The new laws listed below become effective on September 19, 2019 except as otherwise specified.

Employment Law

PL 2019, c. 35 (LD 278)—An Act Regarding Pay Equality

Employer may not inquire about compensation history of prospective employee unless an offer of employment, including all terms of compensation, has been negotiated and made.

Prospective employee may voluntarily disclose compensation history, but employer may not prompt.
Employer may inquire about compensation history if state or federal law requires such disclosure for employment purposes.

PL 2019, c. 156 (LD 369)—An Act to Support Healthy Workplaces and Healthy Families by Providing Earned Paid Sick Leave to Certain Employees

Employees accrue 1 hour of paid time off for every 40 hours worked, up to a maximum of 40 hours in one year.
Employees begin accruing paid leave time immediately, but employer may require 120-day waiting period before use of leave.
New law will apply to all employers who have 11 or more employees employed for more than 120 days per year.
Employee must give “reasonable notice” before taking leave (unless emergency, illness, or sudden necessity).
Employee must schedule leave to prevent undue hardship to employer.

Law does not take effect until January 1, 2021.

Many open questions including:
- Is the leave “use it or lose it” or can it be rolled over?
- Can the employer require a minimum increment that must be used at one time?
- What is “reasonable notice” or “sudden necessity” and who decides?

PL 2019, c. 490 (LD 666)—An Act to Protect Pregnant Workers

Failure to provide reasonable accommodation to a pregnant worker for a “pregnancy-related condition” constitutes unlawful discrimination (unless it would impose an undue hardship).

PL 2019, c. 513 (LD 733)—An Act to Promote Keeping Workers in Maine

Codifies the common law principle that noncompete agreements are contrary to public policy and establishes that noncompete agreements are enforceable only to the extent that they are used to protect the employer’s trade secrets, the employer’s other confidential information, or the employer’s goodwill and are drafted no broader than necessary to protect one of those specific legitimate interests of the employer.
Provides an absolute prohibition on noncompete agreements with employees earning wages at or below 400% of the federal poverty level (approximately $50,000 in 2019).
Requires disclosure prior to an offer of employment that a noncompete agreement will be required as a condition of employment.
Requires delivery of a copy of the noncompete agreement to the employee or prospective employee at least 3 days before the employer requires that the agreement be signed.
Prohibits agreements between two or more employers restricting or prohibiting soliciting or hiring another employer’s employees or former employees.

PL 2019, c. 461 (LD 1524)—An Act to Prevent Wage Theft and Promote Employer Accountability

Provides additional remedies for an employer’s violation of wage payment and recording of hours worked statutes.
Affected employee or employees or the Maine Department of Labor may bring an action for injunctive relief (in addition to existing monetary remedies and damages).
Commissioner of Labor may order an employer to cease operations if there was a prior determination of wage theft within the previous 12 months and 10 or more employees affected or wage theft is at least twice an employee’s weekly wage.

Energy Law

PL 2019, c. 16 (LD 91)—An Act to Eliminate Gross Metering

Requires the Public Utilities Commission to amend its net energy billing rules within 60 days of the law becoming effective to adopt rules that are similar to those in effect on January 1, 2017 (before the PUC amended the Chap. 313 Net Energy Billing Rules in 2017 to phase out net metering).
All customers that entered into a net energy billing arrangement on or after March 29, 2017 are governed by the rules that are to be adopted pursuant to this statute.
The PUC acted on April12, 2019 to amend Chap. 313 on an emergency basis in anticipation of this new law becoming effective.

Resolve, c. 30 (LD 658)—Resolve, To Direct a Plan for Energy Independence for Maine

Requires the Governor’s Energy Office to create a State energy plan through which the State, by 2030, can become a net exporter of energy through the development and expansion of energy generating capacity within the State and coastal waters, energy conservation, and energy efficiency at levels sufficient to offset the total value of the State’s domestic energy consumption.
The Governor’s Energy Office shall provide an update on progress to the Joint Standing Committee on Energy, Utilities and Technology by December 31, 2019.

PL 2019, c.477 (LD 1494)—An Act to Reform Maine’s Renewable Portfolio Standard

Establishes state goals for increasing the consumption of electricity generated by renewable resources to 80% by January 1, 2030 and to 100% by January 1, 2050.
It also increases the percentage retail electricity sales in the State that must be accounted for by new renewable capacity resources from the current 10% to 50% by 2050.
It also makes several changes to resource eligibility to meet these requirements.
It directs the Governor’s Office of Policy and Management and the Governor’s Energy Office to conduct a market assessment study and analysis and present it to the Joint Standing Committee on Energy, Utilities and Technology by January 31, 2021.

PL 2019, c. 478 (LD 1711)—An Act to Promote Solar Energy Projects and Distributed Generation Resources in Maine

Amends the net energy billing law and the Maine Solar Energy Act.
Directs the PUC to support distributed generation resources through procurement of the same.

PL 2019, c. 322 (LD 1720)—An Act to Amend the So-called Dig Safe Law

This addition to the “Dig Safe” law requires excavators to call 911 if contact with or damage to an underground pipe or another underground facility results in the escape of any natural gas or other hazardous substances or material regulated by the United States Department of Transportation, Pipeline and Hazardous Materials Safety Administration.

PL 2019, c. 306 (LD 1766)—An Act to Transform Maine’s Heat Pump Market to Advance Economic Security and Climate Objectives

Clarifies that in construction, remodeling, or renovation of a multifamily residential structure funded in whole or in part by public funds, guarantees or bond proceeds, high performance air source heat pumps may be used as the primary heating system without requiring a waiver from the Public Utilities Commission
Also establishes a goal to install 100,000 new high performance air source heat pumps in residential and nonresidential spaces.

Hospitality Law

PL 2019, c. 10 (LD 81)—An Act to Clarify Maine Law Regarding the Tips of Service Employees

Clarifies that tip pooling arrangements are permissible among service employees provided they do not otherwise violate the federal Fair Labor Standards Act.

PL 2019, c. 62 (LD 289)—An Act to Prohibit the Use of Certain Disposable Food Service Containers

Beginning January 1, 2021, a food establishment is prohibited from selling or providing food in disposable food service containers composed in whole or in part of polystyrene foam.
Excludes polystyrene foam coolers or ice chests that are used for processing or shipping seafood.
A fine can be imposed of not more than $100 per violation.
Department of Environmental Protection may adopt rules to implement the law.

PL 2019, c. 122 (LD 853)—An Act to Facilitate Weekend Malt Liquor Purchases by Licensed Establishments

Allows retailers licensed for on-premise consumption of malt liquor (restaurants and lounges) to purchase malt liquor from retailers licensed for the sale of malt liquor to be consumed off premises only during weekend hours and only 2 times annually.
Gives licensees the ability to purchase product in the event they do not have enough supply and cannot get a delivery from a wholesaler on the weekend.

PL 2019, c. 306 (LD 1015)—An Act to Support Maine Craft Distillers

Directs the Bureau of Alcoholic Beverages and Lottery Operations to discount the list price of spirts produced by a small Maine distillery by 22.75% for product retained by that distiller and sold directly to consumers since the product is not transported to a warehouse and distributed by the Bureau.
Enacted as an emergency bill.

Resolve, c. 168 (LD 1495)—Resolve, Regarding the Revision of Title 28-A of the Maine Revised Statutes

Directs the Office of Policy and Legal Analysis to prepare an analysis regarding the inconsistences, duplications and ambiguities contained within the text of Title 28-A (the State’s liquor laws) and, on or before January 1, 2020, to submit that analysis to the Joint Standing Committee on Veterans and Legal Affairs.

PL 2019, c. 346 (LD 1532)—An Act to Eliminate Single-use Plastic Carry-out Bags

Beginning April 22, 2020 a retail establishment (a store, restaurant, or temporary business) is prohibited from providing single-use carry-out bags to a customer at the point of sale or otherwise make single-use carry-out bags available to customers.

PL 2019, c. 167 (LD 1619)—An Act Regarding Licenses for the Sale of Liquor for On-premises Consumption

Clarifies that a municipality may impose a condition limiting the type of liquor that may be sold for consumption on the premises of a particular Class X license.
Enacted as an emergency bill.

PL 2019, c. 529 (LD 1761)—An Act to Assist Small Beer Manufacturers and Small Hard Cider Manufacturers

Increases the amount of malt liquor a small brewery may brewer from 50,000 gallons to 30,000 barrels per year.
Sets the maximum amount of the termination fee that a wholesale licensee is entitled to receive from a small beer manufacturer in connection with a termination agreement without cause.

Land Use & Environmental Law

PL 2019, c. 291 (LD 112)—An Act to Implement Changes to Maine’s Solid Waste Laws Pursuant to a Review of the State Waste Management and Recycling Plan

Makes a number of amendments to the State’s solid waste management provisions largely to address operations at State-owned landfill facilities.

PL 2019, c. 493 (LD 906)—An Act Concerning Pavement Sealing Products

Prohibits the sale of coal tar sealant products beginning October 1, 2023 and prohibits the application of coal tar sealant products on a driveway or parking area beginning October 1, 2024. An exemption may be requested in writing to the commissioner.

PL 2019, c. 347 (LD 1282)—An Act to Establish a Green New Deal for Maine

Establishes an apprenticeship program that requires construction employers constructing an electricity generation facility capable of generating 2 megawatts or more to hire certain percentages of apprentices to work on the construction beginning in 2021 (10% between January 1, 2021 and January 1, 2025; 17.5% between January 1, 2025 and January 1, 2027; and 25% after January 1, 2027).
Requires that the Efficiency Maine Trust, in collaboration with the Department of Education, identify and provide incentives for cost-effective electric and natural gas conservation projects in school construction project.
Requires the Efficiency Maine trust to establish a power purchase agreement for solar capacity for new school construction through a competitive solicitation process.

PL 2019, c. 476 (LD 1679)—An Act to Promote Clean Energy Jobs and to Establish the Maine Climate Council (Emergency, Effective June 26, 2019)

Establishes the Governor’s 38-member Maine Climate Change Council, directed to assist the State with mitigating, preparing for and adapting to climate change.
By January 1, 2030 the State is required to reduce gross annual greenhouse gas emissions to at least 45% below the 1990 gross annual greenhouse gas emissions level and shall reduce gross annual greenhouse gas emissions to at least 80% below the 1990 gross annual greenhouse gas emissions level by January 1, 2050.

PL 2019, c. 321 (LD 1706)—An Act to Ensure Public Notification of Air Quality Violations

Requires that the Department of Environmental Protection notify an affected municipality when the department issues a notice of violation or receives an air quality-related notice of violation from the United States Environmental Protection Agency.

PL 2019, c. 374 (LD 1784)—An Act to Increase Land Permit by Rule Application Fees

Increases the processing fee for a Board of Environmental Protection permit by rule application from $50 to $250.

PL 2019, c. 315 (LD 1789)—An Act to Restore the Authority of the Board of Environmental Protection

Amends the responsibilities and duties of the Board of Environmental Protection to move all rulemaking authority of the Department of Environmental Protection to the board.
The Board shall also advise the commissioner on enforcement priorities and activities; advise on the adequacy of penalties and enforcement activities; approve administrative consent agreements and hear appeals of emergency orders.

Municipal Law

PL 2019, c. 423 (LD 347)—An Act to Provide Sustainable Funding for Drinking Water and Wastewater Infrastructure

Proposes to provide ongoing funding for improvements to water and wastewater infrastructure statewide, including, but not limited to, funding to support the State Water and Wastewater Infrastructure Fund established in 30-A M.R.S. 6006-H.

PL 2019, c. 474 ( LD 550)—An Act to Amend the Definition of “Subdivision” in the Laws Governing Planning and Land Use Regulation for Subdivisions and a Provision Excepting the Division of a New or Existing Structure from Those Laws Beginning July 1, 2018

Changes the date by which the definition of “subdivision” that are in municipal ordinances and that conflict with state law must comply with the definition of “subdivision” in state law to January 1, 2021 and extends the time municipalities have to register an ordinance with a conflicting definition with the registry of deeds to June 30, 2020.
Repeals the current provisions requiring a project subject to municipal site plan review to be conducted in accordance with provisions in Title 38. Instead, the amendment defines “municipal site plan review” to mean a review under a municipal ordinance that sets forth a process for determining whether a development meets certain specified criteria, which must include criteria regarding stormwater management, sewage disposal, water supply and vehicular access and which may include criteria regarding other environmental effects, layout, scale, appearance and safety.

PL 2019, c. 40 (LD 562)—An Act to Improve Shoreland Zoning Rules and Enforcement to Support Municipalities

Increases the maximum per day civil penalty for a specific violation of a municipal land use law or ordinance from $2,500 to $5,000 and increases the maximum per day civil penalty for a specific violation of a municipal shoreland zoning ordinance occurring within an area zoned for resource protection from $5,000 to $10,000.
A municipal shoreland zoning ordinance must require an applicant for a permit for development within the shoreland zone to provide to the municipal permitting authority preconstruction photographs and, no later than 20 days after completion of the development, postconstruction photographs of the shoreline vegetation and development site.

PL 2019, c. 93 (LD 603)—An Act to Amend the Laws Governing Funding for Landfill Closure Costs

Provides that if a license application for a landfill was accepted for processing on or before September 1, 1989 and the application was approved by the Commissioner of Environmental Protection within one year of accepting the application for processing, the landfill is eligible for payment of 75% of certain closure costs by the DEP. Currently the law only applies to a landfill licensed on or before September 1, 1989.

PL 2019, c. 108 (LD 1063)—An Act to Support the Role of Municipalities in Expanding Broadband Infrastructure

Recognizes broadband internet as a public necessity.
Allows a municipality to construct, maintain and operate a municipal or multi-municipal system composed of infrastructure capable of being utilized by communications service providers for the provision of communication services.

PL 2019, c. 74 (LD 1078)—An Act Regarding the Number of Agency Liquor Store Licenses Permitted in a Municipality

Increase the number of agency liquor store licenses available in a municipality.
Allows up to 11 agency liquor stores in a municipality with a population over 60,000. Current law allows a maximum of 10 agency liquor stores in a municipality with a population over 45,000.
Allows up to 7 agency liquor stores in a municipality with a population over 15,000 but less than 20,001 and 6 agency liquor stores in a municipality with a population over 10,000 but less than 15,001. Currently, 5 agency liquor stores are allowed in a municipality with a population over 10,000 but less than 20,001.

PL 2019, c. 281 (LD 1680)—An Act to Authorize Auxiliary Liquor Licenses for the Consumption of Alcoholic Beverages within Designated Entertainment Districts

Allows a municipality to create an “Entertainment District” in which liquor licensees can jointly apply and have “common consumption area” for consumption of alcoholic products within the district.