An Act To End At-will Employment
Maine Legislature, Session 130, LD 0553
Committee: Labor and Housing
Sponsors: SYLVESTER
Amends: 26 MRSA §42-B

Legislative Document
No. 553
H.P. 398
House of Representatives, February 24, 2021
An Act To End At-will Employment
Received by the Clerk of the House on February 22, 2021.  Referred to the Committee on 
Labor and Housing pursuant to Joint Rule 308.2 and ordered printed pursuant to Joint Rule 
401.
ROBERT B. HUNT
Clerk
Presented by Representative SYLVESTER of Portland.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  26 MRSA §42-B, sub-§2, as amended by PL 2003, c. 442, §1, is repealed.
Sec. 2.  26 MRSA c. 47 is enacted to read:
CHAPTER 47
EMPLOYMENT TERMINATION
§3701.  Definitions
As used in this chapter, unless the context otherwise indicates, the following terms 
have the following meanings.
1.  Cause.  "Cause" means a reasonable basis related to an employee for termination 
of the employee's employment in view of relevant factors and circumstances, which may 
include the employee's conduct on the job or violation of the employer's policies governing 
employment.
2.  Employee.  "Employee" means an individual who works for hire, including an 
individual employed in a supervisory, managerial or confidential position, but not an 
independent contractor.
3.  Employer.  "Employer" means a person that has employed 5 or more employees 
for each working day in each of 20 or more calendar weeks in the 2-year period next 
preceding a termination excluding a parent, spouse, child or other member of the 
employer's immediate family or of the immediate family of an individual having a 
controlling interest in the employer.
§3702.  Termination for cause
Notwithstanding any provision of law to the contrary, an employer may not terminate 
the employment of an employee without cause.  An employer may terminate an employee 
for cause only if the employer has followed a progressive discipline policy in accordance 
with section 3703, except that if an employee has violated any state law an employer is not 
required to follow a progressive discipline policy and may proceed to immediate 
termination with notice as required under section 3703, subsection 2.
§3703.  Progressive discipline policy and termination
Except as provided in section 3702, an employer shall apply a progressive discipline 
policy and provide notice of termination in accordance with this section.
1. Progressive discipline policy. An employer shall adopt and implement a 
progressive discipline policy for its employees.  If an employer has not adopted a 
progressive discipline policy, the employer must implement the model progressive 
discipline policy provided by the department under section 3704. A progressive discipline 
policy adopted by an employer must:
A. Include a 3-step disciplinary process prior to termination, including a verbal warning 
as step one, a written warning as step 2 and a final written warning as step 3;
B. Provide that each warning, whether verbal or written, must be accompanied by 
written documentation of the specific basis for the warning, which may include, but is 
not limited to, the employee's conduct on the job or a violation of the employer's 
policies;  
C. Include language in the final written warning stating that any further instance of the 
employee conduct or violation of policy identified in documentation required under 
paragraph B will lead to the immediate termination of the employee's employment; 
D. Require the employee to sign a copy of the final written warning; and
E. Provide that the failure of the employee to sign the final written warning is 
considered a violation of the employer's progressive discipline policy. 
2. Notice of termination.  An employer shall provide a written notice of termination 
to inform an employee that the employee is being terminated from employment. The 
written notice must include, but is not limited to, an explanation of the cause or causes for 
termination and the effective date of the termination of employment.  A copy of the written 
notice of termination must be mailed to the employee on the date it is signed by the 
employer.
§3704.  Model progressive discipline policy and forms
The department shall develop and make available to employers a model progressive 
discipline policy in accordance with the requirements of section 3703 and model forms for 
use at each step in the discipline process including termination.  The model progressive 
discipline policy must include guidance for employers and employees at each step of the 
progressive discipline process, as outlined in section 3703, subsection 1, and for 
termination.  Model forms must include space to document the cause for the discipline and 
proof of cause for termination. The model progressive discipline policy and model forms 
must be available on the department's publicly accessible website.
§3705.  Private right of action
1. Limit on private right of action. An employee has no private right of action under 
this chapter, except that an employee may bring a private right of action if the employee 
was terminated and the employer violated the employer's progressive discipline policy or, 
if the employer has not adopted such a policy, the model progressive discipline policy 
provided by the department under section 3704, with that employee.  In a private right of 
action authorized under this section, an employee must prove that a substantive violation 
of the employer or model progressive discipline policy occurred with respect to the 
employee. An employee who is aggrieved by an employer's violation of the progressive 
discipline policy may appeal to the director, who may conduct a nonbinding review to 
determine whether there has been a violation of the policy by the employer, or the employee 
may bring a civil action in court against the employer.
2. Construction. Except as specifically provided in this section, this chapter provides 
no express or implied private right of action.
SUMMARY
This bill prohibits an employer from terminating the employment of an employee 
without cause.  The bill specifies that an employer may terminate an employee for cause 
only after applying a 3-step progressive discipline policy and providing notice of 
termination in accordance with certain requirements. The bill also eliminates references to 
at-will employment in current law.