An Act To Improve the Process by Which Logging Contractors Hire Legal Foreign Workers
Maine Legislature, Session 125, LD 1383
Committee: Labor, Commerce, Research and Economic Development
Sponsors: SAVIELLO
Amends: Title 26, Section 3306, 26 MRSA §872, 26 MRSA §873, 26 MRSA §874, 26 MRSA §1043

Legislative Document 
No. 1383 
S.P. 428 
In Senate, April 5, 2011 
An Act To Improve the Process by Which Logging Contractors Hire 
Legal Foreign Workers 
Reference to the Committee on Labor, Commerce, Research and Economic Development 
suggested and ordered printed. 
JOSEPH G. CARLETON, JR. 
Secretary of the Senate 
Presented by Senator SAVIELLO of Franklin. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  26 MRSA §872, as amended by PL 2009, c. 637, §§3 to 9, is further 
amended to read: 
§872.  Notification regarding foreign laborers in logging occupations 
1.  Definitions.  As used in this section, unless the context otherwise indicates, the 
following terms have the following meanings. 
A.  "Bond worker" means a person who has been described under 8 United States 
Code, Section 1101(a)(15)(H)(ii) and granted permission to work temporarily in the 
United States. 
B.  "Logging equipment" means equipment used directly in the cutting and 
transporting of logs to the roadside, the production of wood chips in the field, the 
construction of logging roads and the transporting of logs or other wood products off-
site or on roadways. 
2.  Proof of ownership required.  An employer in this State who applies for a bond 
worker in a logging occupation shall provide proof of the employer's ownership of any 
logging equipment used by that worker in the course of employment, including proof of 
ownership of at least one piece of logging equipment for every 2 bond workers employed 
by the employer in a logging occupation.  The employer shall provide proof of ownership 
as required by this subsection on a form provided by the Commissioner of Labor.  The 
proof required by this subsection must include, but not be limited to, a receipt for 
payment for the equipment purchased in a bona fide transaction and documentation of 
payment of any tax assessed on the equipment pursuant to Title 36, chapter 105 for the 
year in which the bond worker is employed by the employer.  Proof of ownership must be 
carried in the equipment and, upon request by the department, the operator of equipment 
subject to this section shall provide proof of ownership.  Notwithstanding section 3, 
information regarding proof of ownership is not confidential and may be disclosed to the 
public. If the equipment is leased by the employer, the employer shall provide the name, 
address and telephone number of the leasing company and its affiliates and subsidiaries; 
the names, addresses and telephone numbers of the leasing company's owner or owners, 
its agent and members of its board of directors; and a copy of the lease document.  A 
lease is sufficient to meet the ownership requirement of this section only if it is a bona 
fide lease and:  
A.  The lease consists of an arm’s length transaction between unrelated entities or is a 
transfer of equipment between affiliated companies; 
B.  The lease document contains a specific duration and lease amount; 
C.  The lessor is not an entity owned or controlled by a bond worker or a bond 
worker’s spouse, parent, child, sibling, aunt, uncle or cousin or person related to a 
bond worker in the same manner by marriage, or by any combination of a bond 
worker and the bond worker’s family members described in this paragraph; and 
D.  The lessor is a bona fide leasing business as evidenced by a lease of logging 
equipment to at least 3 different, unrelated entities within each of the past 3 years. 
2-A.  Notification.  An employer filing for certification from the United States 
Department of Labor to hire a bond worker to operate logging equipment shall at the time 
of filing of a bond worker in a logging occupation shall notify the Maine Department of 
Labor and provide, for the year in which the bond worker is employed, the number of 
bond workers requested; a list of each piece of logging equipment, including serial 
number, a bond worker will operate; receipts for payment for the logging equipment 
purchased in bona fide transactions; and documentation of payment of any tax assessed 
on the logging equipment pursuant to Title 36, chapter 105.  An employer shall notify the 
Maine Department of Labor within 3 30 days of the date on which a bond worker begins 
work in the State and shall specify the name of the bond worker and the anticipated 
locations where the bond worker will be conducting work. 
2-B.  Violation.  Upon conviction of a violation of subsection 2, an employer may 
not employ bond workers in this State for 2 years. 
3.  Equipment covered by federal prevailing wage exempt.  This section does not 
apply to equipment for which the United States Department of Labor, Division of Foreign 
Labor Certification has established a prevailing wage under the federal Service Contract 
Act of 1965 for persons using that equipment. 
4.  Enforcement; rules.  The Commissioner of Labor shall adopt rules to implement 
and enforce the provisions of this section, including rules regarding the receipt of 
documentation and the investigation and prosecution of employer proof of ownership of 
logging equipment.  Rules adopted pursuant to this subsection are major substantive rules 
as defined in Title 5, chapter 375, subchapter 2-A. 
5.  Penalty; enforcement. An employer who violates subsection 2, 2-A or 2-B or the 
rules adopted pursuant to this section commits a civil violation for which a fine of not less 
than $10,000 and not more than $25,000 per violation may be adjudged. 
In the event of a violation of the provisions of this section, the Attorney General may 
institute injunction proceedings in the Superior Court to enjoin further violation of this 
section. 
6.  Assistance.  The Department of Conservation and the Department of 
Administrative and Financial Services, Bureau of Revenue Services shall provide 
interagency support and field information to assist the Department of Labor in enforcing 
this section. 
Sec. 2.  26 MRSA §873, as corrected by RR 2009, c. 2, §§73 and 74, is amended to 
read: 
§873.  Recruitment for logging occupations 
1.  Definitions.  As used in this section, unless the context otherwise indicates, the 
following terms have the following meanings. 
A.  "Bond worker" has the same meaning as in section 872. 
B.  "Recruitment clearinghouse" or "clearinghouse" means a system operated by 
members of the forest products industry and described in subsection 3 and supported 
by the Maine Department of Labor. 
2.  Employer requirements; clearinghouse and reporting.  An employer filing for 
certification with the United States Department of Labor to hire a bond worker in a 
logging occupation shall: 
A.  File a copy of all federal forms and reports relating to H2 visas with the Maine 
Department of Labor at the same time as the employer files the form or report with 
the United States Department of Labor; and 
B.  Be a member and active participant of a recruitment clearinghouse that complies 
with subsection 3.  The Maine Department of Labor may consider failure to 
participate in the clearinghouse as failure to participate in good faith recruitment of 
workers who are citizens of the United States and a failure to meet the requirement 
that the employer accept qualified workers referred through the department under 
subsection 5. 
3.  Clearinghouse requirements.  The Maine Department of Labor shall assist 
members of the forest products industry in establishing the and maintaining a recruitment 
clearinghouse, which must may be financed and operated and directed by members of the 
forest products industry.  The goal of the clearinghouse must is to provide a centralized, 
streamlined process for applicants in the forest products industry. 
A.  The clearinghouse must provide a staffed, toll-free telephone number to receive 
telephone inquiries for logging employment. 
B.  For each applicant who contacts the clearinghouse directly or who is referred to 
the clearinghouse by the Maine Department of Labor pursuant to subsection 4, the 
clearinghouse shall may gather any information necessary to assess the job applicant's 
qualifications for the job classification applied for, including but not limited to 
conducting a reference check.  Following the assessment, the clearinghouse shall: 
(1)  Notify the Maine Department of Labor and the applicant that the applicant 
lacks sufficient qualifications or satisfactory references for the position sought 
and state the reasons for that determination; or 
(2)  Refer the applicant to a logging employer seeking workers in that job 
classification.  To the extent practicable, the clearinghouse shall refer the 
applicant to the applicant's preferred geographic area of employment.  Referral 
may be made to any employer with relevant job openings, regardless of whether 
the employer is seeking bond workers, if the applicant prefers such a referral. 
4.  Department role.  The Maine Department of Labor shall: 
A.  Refer to the recruitment clearinghouse all applicants who meet minimum 
qualifications for employment with a logging employer.  The referral must include 
information required of applicants who use the department's career center services; 
B.  Keep a record of the name, date of referral, preferred working location and job 
classification of each applicant referred to the recruitment clearinghouse; 
C.  Engage actively with the recruitment clearinghouse and with employers to assist 
them in understanding how to comply with their obligations under state and federal 
law regarding recruitment and hiring of logging workers; and 
D.  Regularly review clearinghouse referrals and assessments and employer response 
to referrals in order to make determinations of compliance by employers with the 
requirements of 20 Code of Federal Regulations, Part 655, Subpart B. Failure of the 
clearinghouse to appropriately refer and assess applicants may be considered failure 
of each of the member employers to adequately recruit workers who are citizens of 
the United States. 
E.  Promote the clearinghouse as a means to match applicants with logging 
employers; and 
F.  Provide such other assistance to logging employers as may be appropriate. 
5.  Job offer; skills test. Upon referral of an applicant under subsection 3, a logging 
employer shall offer employment to that applicant. 
A.  An employment offer may be conditioned on a skills test, but only if the employer 
requires the skills test of all new applicants in that job classification who have similar 
levels of experience with respect to the models of equipment to be operated. 
B.  If a skills test under paragraph A is required, it must be conducted at the area of 
intended employment, at a central location designated by the recruitment 
clearinghouse in conjunction with the logging employer or at another location within 
reasonable distance from the applicant's residence or the employer's place of 
employment. 
C.  A contractor that requires a skills test under paragraph A in the preemployment 
hiring process shall submit a copy of the testing policy and procedure to the Maine 
Department of Labor at the time the contractor files the position on the state Job 
Bank. 
D.  An applicant who is rejected from employment due to failing a skills test under 
paragraph A must be given a written statement of the reason for failure of the skills 
test.  The employer shall provide a copy of the written statement to the recruitment 
clearinghouse and the Maine Department of Labor. 
6.  Contracts with landowners.  A contract for harvesting wood between a logging 
employer and a landowner must may contain a provision that allows the landowner to 
terminate the contract if the logging employer violates this section or the applicable 
federal regulations regarding employment of bond workers. 
7.  Penalties.  The Maine Department of Labor shall make good faith efforts to 
resolve alleged violations of this section or of the recruitment process.  If such efforts are 
not successful, the following penalties apply. 
A.  Violation of this section is considered a violation of section 872 and is subject to 
the penalties as set forth in section 872, subsection 5. 
B.  An employer is subject to discontinuation of services pursuant to 20 Code of 
Federal Regulations,  Section 658.500 et seq. if the employer fails to comply with this 
section or the clearinghouse fails to appropriately refer or assess applicants in the job 
classification in which the employer is seeking bond workers. 
8.  Landowner contracts with employers.  This subsection governs contracts 
between logging employers and landowners. 
A.  The Maine Department of Labor shall maintain an approved list of employers 
consisting of those employers filing for certification with the United States 
Department of Labor to hire a bond worker in a logging occupation that are members 
of and active participants in a recruitment clearinghouse that complies with 
subsections 2 and 3.  The list must also contain any employer under investigation by 
the Maine Department of Labor for a violation of section 872, this section or federal 
regulations applicable to foreign labor.  The department shall publish the list on the 
department's publicly accessible website and forward a copy of the list and 
subsequent updates to the recruitment clearinghouse.  Each landowner or other 
person that wishes to be notified of a change in status of a contractor must file with 
the department a request to be notified and contact information for the notification. 
B.  The Maine Department of Labor, after notice and hearing, shall remove from the 
list of approved employers under paragraph A any employer filing for certification 
with the United States Department of Labor to hire a bond worker in a logging 
occupation that is found to have committed a material violation of section 872, this 
section or the applicable federal regulations. 
C.  A person may appeal the placement or removal of an employer on the approved 
list under paragraph A to the State Board of Arbitration and Conciliation.  If the 
appeal relates to removal of the employer from the list, it must be made within 15 
days of notice of removal to the employer.  The board shall conduct an arbitration 
session pursuant to chapter 9, subchapter 2-A.  Board proceedings under this section 
must be conducted in Augusta, unless the board determines that this location is 
impracticable in the specific circumstances.  Notwithstanding section 931, the costs 
of arbitration under this section must be paid by a nonlapsing fund to be established 
by the department. 
D.  The Maine Department of Labor shall notify persons who have filed a request for 
notification of the removal of any employer from the list. 
E.  A landowner who enters into or maintains a contract with an employer not on the 
approved list under paragraph A is subject to a fine of not more than $50,000. 
Sec. 3.  26 MRSA §874, as enacted by PL 2009, c. 637, §11, is repealed. 
Sec. 4.  26 MRSA §1043, sub-§11, ¶F, as amended by PL 2009, c. 637, §12, is 
further amended to read: 
F.  The term "employment" does not include: 
(1)  Service performed in the employ of this State, or of any political subdivision 
thereof, or of any instrumentality of this State or its political subdivisions, except 
as provided by this subsection; 
(2)  Service performed in the employ of the United States Government or an 
instrumentality of the United States immune under the Constitution of the United 
States from the contributions imposed by this chapter, except that on and after 
January 1, 1940 to the extent that the Congress of the United States has permitted 
states to require any instrumentalities of the United States to make payments into 
an unemployment compensation fund under a state unemployment compensation 
or employment security law, all of the provisions of this chapter are applicable to 
such instrumentalities and to services performed for such instrumentalities in the 
same manner, to the same extent and on the same terms as to all other employers, 
employing units, individuals and services. If this State is not certified for any 
year by the Secretary of Labor under section 3304 of the Federal Internal 
Revenue Code, the payments required of such instrumentalities with respect to 
that year must be refunded by the commissioner from the fund in the same 
manner and within the same period as is provided in section 1225, subsection 5, 
with respect to contributions erroneously collected;  
(3)  Service with respect to which unemployment compensation is payable under 
an unemployment compensation system or employment security system 
established by an Act of Congress. The commissioner is authorized and directed 
to enter into agreements with the proper agencies under such an Act of Congress, 
which agreements become effective 10 days after publication thereof in the 
manner provided in section 1082, subsection 2, for regulations, to provide 
reciprocal treatment to individuals who have, after acquiring potential rights to 
benefits under this chapter, acquired rights to unemployment compensation under 
such an Act of Congress, or who have, after acquiring potential rights to 
unemployment compensation under such an Act of Congress, acquired rights to 
benefits under this chapter;  
(4)  Agricultural labor as defined in subsection 1, except as provided in paragraph 
A-2; 
(4-1)  Services Agricultural labor, if performed by an individual who is an alien, 
other than a citizen of a contiguous country with which the United States has an 
agreement with respect to unemployment compensation, admitted to the United 
States to perform agricultural labor pursuant to the United States Immigration 
and Nationality Act, Sections 214(c) and 101(a) (15) (H); 
(5)  Domestic service in a private home, except as provided in paragraph A-3; 
(6)  Service performed by an individual in the employ of that individual's son, 
daughter or spouse and service performed by a child under the age of 18 in the 
employ of that child's father or mother, except for periods of such service for 
which unemployment insurance contributions are paid; 
(6-1)  Services performed by a student attending an elementary, secondary or 
postsecondary school while participating in a cooperative program of education 
and occupational training or on-the-job training that is part of the school 
curriculum; 
(9)  Service performed with respect to which unemployment compensation is 
payable under the Railroad Unemployment Insurance Act (52 Stat. 1094);  
(10)  Services performed in the employ of any other state, or any political 
subdivision thereof, or any instrumentality of any one or more of the foregoing 
that is wholly owned by one or more states or political subdivisions and any 
services performed in the employ of any instrumentality of one or more other 
states or their political subdivisions to the extent that the instrumentality is, with 
respect to such a service, immune under the Constitution of the United States 
from the tax imposed by section 3301 of the Federal Internal Revenue Code, 
except as provided in paragraph A-1, subparagraph (1);  
(11)  Service performed in any calendar quarter in the employ of any 
organization exempt from income tax under section 501(a) of the Federal Internal 
Revenue Code other than an organization described in section 401(a) or under 
section 521 of the Code, if the remuneration for such service is less than $150;  
(16)  Service performed in the employ of a foreign government, including service 
as a consular or other officer or employee or a nondiplomatic representative;  
(17)  Service performed in the employ of an instrumentality wholly owned by a 
foreign government:  
(a)  If the service is of a character similar to that performed in foreign 
countries by employees of the United States Government or an 
instrumentality thereof; and  
(b)  If the commissioner finds that the United States Secretary of State has 
certified to the United States Secretary of the Treasury that the foreign 
government, with respect to whose instrumentality exemption is claimed, 
grants an equivalent exemption with respect to similar service performed in 
the foreign country by employees of the United States Government and of 
instrumentalities thereof;  
(18)  Service performed as a student nurse in the employ of a hospital or a nurses' 
training school by an individual who is enrolled and is regularly attending classes 
in a nurses' training school chartered or approved pursuant to state law and 
service performed as an intern in the employ of a hospital by an individual who 
has completed a 4 years' course in a medical school chartered or approved 
pursuant to state law;  
(19)  Service performed by an individual for a person as a real estate broker, a 
real estate sales representative, an insurance agent or an insurance solicitor, if all 
such service performed by that individual for that person is performed for 
remuneration solely by way of commission;  
(20)  Service performed by an individual under the age of 18 in the delivery or 
distribution of newspapers or shopping news except delivery or distribution to 
any point for subsequent delivery or distribution;  
(21)  Service performed in the employ of any organization that is excluded from 
the term "employment" as defined in the Federal Unemployment Tax Act solely 
by reason of section 3306(c)(7) or (8) if:  
(a)  Service is performed in the employ of a church or convention or 
association of churches or an organization that is operated primarily for 
religious purposes and that is operated, supervised, controlled or principally 
supported by a church or convention or association of churches;  
(b)  Service is performed by a duly ordained, commissioned or licensed 
minister of a church in the exercise of that minister's ministry or by a member 
of a religious order in the exercise of duties required by that order;  
(c)  Prior to January 1, 1978, service is performed in the employ of a school 
primarily operated as an elementary, secondary or preparatory school for 
higher education that is not an institution of higher education;  
(d)  Service is performed in a facility conducted for the purpose of carrying 
out a program of rehabilitation for individuals whose earning capacity is 
impaired by age or physical or mental deficiency or injury or providing 
remunerative work for individuals who, because of their impaired physical or 
mental capacity, cannot be readily absorbed in the competitive labor market 
by an individual receiving such rehabilitation or remunerative work;  
(e)  Service is performed as part of an unemployment work-relief or work-
training program assisted or financed in whole or in part by any federal 
agency or an agency of a state or political subdivision thereof by an 
individual receiving that work-relief or work-training;  
(f)  Service is performed in the employ of a hospital as defined in subsection 
by a patient of that hospital;  
(g)  Services are performed prior to January 1, 1978 for a hospital in a state 
prison or other state correctional institution by an inmate of that prison or 
correctional institution and after December 31, 1977 by an inmate of a 
custodial or penal institution;  
(h)  Service is performed in the employ of a school, college or university if 
that service is performed by a student who is enrolled and is regularly 
attending classes at such a school, college or university; or  
(i)  Prior to January 1, 1978, service is performed in the employ of a school 
that is not an institution of higher education and after December 31, 1977, 
service is performed in the employ of a governmental entity referred to in 
paragraph A-1, subparagraph (1) if that service is performed by an individual 
in the exercise of duties: 
(i)  As an elected official; 
(ii)  As a member of a legislative body or a member of the judiciary of a 
state or political subdivision of a state; 
(iii)  As a member of the State National Guard or Air National Guard; 
(iv)  As an employee serving on a temporary basis in case of fire, storm, 
snow, earthquake, flood or similar emergency; 
(v)  In a position that, under or pursuant to the laws of this State, is 
designated as a major nontenured policymaking or advisory position or a 
policymaking or advisory position the performance of the duties of which 
ordinarily does not require more than 8 hours per week; or 
(vi)  As an election official or election worker if the amount of 
remuneration received by the individual during the calendar year for 
services as an election official or election worker is less than $1,000; 
(29)  Services performed by a hairdresser who holds a booth license and operates 
within another hairdressing establishment if operated under a booth rental 
agreement or other rental agreement;  
(30)  Services performed by a barber who holds a booth license and operates 
within another barbering establishment if operated under a booth rental 
agreement or other rental agreement;  
(31)  Services performed by a contract interviewer engaged in marketing research 
or public opinion interviewing when such interviewing is conducted in the field 
or over the telephone on premises not used or controlled by the person for whom 
such contract services are being provided;  
(32)  After December 31, 1981, services performed by an individual on a boat 
engaged in catching fish or other forms of aquatic animal life, unless those 
services would be included in the definition of "employment" for federal 
unemployment tax purposes under the Federal Unemployment Act, United States 
Code, Title 26, Section 3306(c), as it may be amended.  Also included in this 
exemption are services performed in harvesting shellfish for depuration from 
designated areas as authorized by Title 12, section 6856;  
(33)  Services performed by a member or leader of a musical group, band or 
orchestra or an entertainer when the services are performed under terms of a 
contract entered into by the leader or an agent of the musical group, band, 
orchestra or entertainer with an employing unit for whom the services are being 
performed, provided the leader or agent is not an employer by reason of 
subsection 9 or of section 1222, subsection 3;  
(34)  Services performed in the delivery or distribution of newspapers or 
magazines to the ultimate consumer by an individual who is compensated by 
receiving or retaining a commission or profit on the sale of the newspaper or 
magazine; 
(35)  Services performed by a homeworker in the knitted outerwear industry as 
those terms are defined, on the effective date of this subparagraph, in 29 Code of 
Federal Regulations, Part 530, Section 530.1; 
(36)  Service performed by a full-time student, as defined in subsection 30, in the 
employ of a youth camp licensed under Title 22, section 2495 if the full-time 
student performed services in the employ of the camp for less than 13 calendar 
weeks in the calendar year and the camp: 
(a)  Did not operate for more than 7 months in the calendar year and did not 
operate for more than 7 months in the preceding calendar year; or 
(b)  Had average gross receipts for any 6 months in the preceding calendar 
year that were not more than 33 1/3% of its average gross receipts for the 
other 6 months in the preceding calendar year; 
(37)  Services performed by an individual as a home stitcher as long as that 
employment is not subject to federal unemployment tax;  
(38)  Services performed by a person licensed as a guide as required by Title 12, 
section 12853, as long as that employment is not subject to federal 
unemployment tax; 
(39)  Services performed by a direct seller as defined in 26 United States Code, 
Section 3508, Subsection (b), Paragraph (2).  This subparagraph does not include 
a person selling major improvements or renovations to the structure of a home, 
business or property; 
(40)  Services performed by lessees of taxicabs, as long as that employment is not 
subject to federal unemployment tax.  This subparagraph may not be construed to 
affect a determination regarding a lessee's status as an independent contractor for 
workers' compensation purposes; 
(41)  Services provided by a dance instructor to students of a dance studio when 
there is a contract between the instructor and the studio under which the 
instructor's services are not offered exclusively to the studio, the studio does not 
control the scheduling of the days and times of classes other than beginning and 
end dates, the instructor is paid by the class and not on an hourly or salary basis, 
the compensation rate is the result of negotiation between the instructor and the 
studio and the instructor is given the freedom to develop the curriculum; 
(42) Services performed by participants enrolled in programs or projects under 
the national service laws including the federal National and Community Service 
Act of 1990, as amended, 42 United States Code, Section 12501 et seq., and the 
federal Domestic Volunteer Service Act, as amended, 42 United States Code, 
Section 4950 et seq.; 
(43)  Services of an author in furnishing text or other material to a publisher who: 
(a)  Does not control the author's work except to propose topics or to edit 
material submitted; 
(b)  Does not restrict the author from publishing elsewhere; 
(c)  Furnishes neither a place of employment nor equipment for the author's 
use; 
(d)  Does not direct or control the time devoted to the work; and 
(e)  Pays only for material that is accepted for publication. 
This exception does not apply if the employment is subject to federal 
unemployment tax; and 
(44)  Services provided by an owner-operator of a truck or truck tractor while it is 
leased to a motor carrier, as defined in 49 Code of Federal Regulations, 390.5 
(2000), as long as that employment is not subject to federal unemployment tax. 
SUMMARY 
This bill simplifies the process for employers in the logging industry who hire 
employees from another country who have been given permission to work in this country.