An Act To Increase Workplace Transparency with Regard to Arbitration Agreements, the Rights of Employees and Legal Remedies
Maine Legislature, Session 130, LD 1519
Committee: Labor and Housing
Sponsors: MIRAMANT, SYLVESTER, JACKSON, GEIGER

Legislative Document
No. 1519
S.P. 493
In Senate, April 20, 2021
An Act To Increase Workplace Transparency with Regard to 
Arbitration Agreements, the Rights of Employees and Legal 
Remedies
Received by the Secretary of the Senate on April 15, 2021.  Referred to the Committee on 
Labor and Housing pursuant to Joint Rule 308.2 and ordered printed.
DAREK M. GRANT
Secretary of the Senate
Presented by Senator MIRAMANT of Knox.
Cosponsored by Representative SYLVESTER of Portland and
Senator: President JACKSON of Aroostook, Representative: GEIGER of Rockland.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  26 MRSA c. 47 is enacted to read:
CHAPTER 47
MAINE WORKPLACE TRANSPARENCY ACT
§3701. Short title
This chapter may be known and cited as "the Maine Workplace Transparency Act."
§3702. Definitions
As used in this chapter, unless the context otherwise indicates, the following terms 
have the following meanings.
1. Arbitration agreement. "Arbitration agreement" means an agreement between an 
employer and an employee to submit to arbitration all or certain disputes that arise in 
respect to a defined legal relationship, whether contractual or not, and may be in the form 
of an arbitration clause in a contract or in the form of a separate agreement.
2. Electronic device.  "Electronic device" means a device that is electric and that 
enables access to, or use of, an electronic communication service, remote computing 
service or location information service.
3. Employee.  "Employee" means an individual employed or formerly employed by or 
applying for employment with an employer.
4. Employer.  "Employer" means a person in the State employing an employee, 
whatever the place of employment of the employee, and any person outside the State 
employing an employee whose usual place of employment is in the State; a person acting 
in the interest of an employer, directly or indirectly, so that the person's actions are 
considered the actions of the employer for purposes of liability; and a labor organization, 
whether or not organized on a religious, fraternal or sectarian basis, with respect to the 
organization's employment of employees. "Employer" does not include a religious or 
fraternal corporation or association, not organized for private profit or conducted for private 
profit, with respect to employment of the corporation's or association's employment of 
members of the same religion, sect or fraternity.
5.  Inconvenient venue.  "Inconvenient venue" means:
A.  For state law claims, a place other than the county in which the employee resides 
or where the contract was executed; and
B.  For federal law claims, a place other than the federal judicial district in accordance 
with Local Rule 3(b) of the Local Rules of the United States District Court for the 
District of Maine in which the employee resides or the contract was executed.
§3703. Unconscionable terms and rights
1. Unconscionable terms. There is a rebuttable presumption that the following 
contractual terms are unconscionable if they are included in an arbitration agreement and 
the employee does not draft the contract or agreement:
A. A requirement that resolution of a claim takes place in an inconvenient venue;
B. A waiver of the employee's right to assert a claim or seek a remedy provided by a 
common law or statute of the State or a federal statute;
C. A waiver of the employee's right to seek punitive damages as provided by law;
D. A provision limiting the time that an employee may bring an action to a period 
shorter than the applicable statute of limitations;
E. A requirement that an employee pay fees or costs to bring a claim in excess of the 
fees and costs that a state or federal court requires to bring a claim;
F. A requirement to arbitrate an employee claim that stems from the United States 
Equal Employment Opportunity Commission laws or the Maine Human Rights Act; 
and
G. A waiver of the employee's right to pursue or participate in a class action or 
collective action against an employer.
2. Rights. An employee has rights that may not be waived in an arbitration agreement, 
including:
A. To criticize the employee's employer, protest the employee's wages or working 
conditions and share information in support of a complaint of wages or working 
conditions;
B. To use and possess an electronic device during work hours in workplace and 
nonworkplace areas to photograph or make video and audio recordings in furtherance 
of a concerted activity for mutual aid or protection, such as the right to use an electronic 
device to take such photographs or make video and audio recordings for the following 
limited purposes to document or attempt to document:
(1) An unfair labor practice under this Title;
(2) Any municipal, state or federal criminal conduct;
(3) An unlawful discriminatory practice under Title 5, chapter 337;
(4) A public health, traffic or safety violation; and
(5) An unlawful act of harassment under Title 5, chapter 337-A;
C. To pursue or participate in a class action or collective action against the employee's 
employer;
D. To rescind an employment separation agreement by notifying the employer in 
writing by mail or e-mail within 9 days of executing an employment separation 
agreement;
E. To distribute literature by electronic means in workplace and nonworkplace areas 
during nonworking hours at the business premises of the employer;
F. To distribute literature in paper form in workplace break areas and nonworkplace 
areas during nonworking hours at the business premises of the employer; and
G. To strike and picket.
An employee who exercises a right under subsection 2 must do so in accordance with the 
laws concerning confidential information, including confidentiality of health care 
information under Title 22, section 1711-C, confidential information provided to 
professional and occupational licensing boards under Title 22, section 3294 and the 
limitations of information under Title 16, chapters 7 and 9.
§3704. Action
1. Action. An employee may bring an action under this chapter for the intentional, 
knowing or reckless use of an unconscionable contractual term or violation of a right under 
section 3703, subsection 2 for actual damages, compensatory damages, punitive damages, 
equitable relief, back pay damages, front pay damages, injunctive relief, including issuance 
of a temporary restraining order, or any other appropriate relief. 
2. Place of action. Notwithstanding the federal court's authority to exercise 
supplemental jurisdiction under 28 United States Code, Section 1367, an action under this 
chapter must be instituted in the Superior Court of the county where the alleged violator 
resides or has a principal place of business.
3. Impartial jury trial.  An employee may request a jury trial on the merits of an action 
brought under this section, except for an application for a preliminary injunction or 
temporary restraining order.
4. Limitation of action. An action under this chapter must be commenced within 6 
years after the cause of action accrues.  The period to commence an action under this 
subsection tolls for an employee determined incompetent even if a guardian ad litem has 
been appointed during the pendency of any criminal proceedings against the employee.
5. Preponderance of evidence.  An action under this chapter must be decided by a 
preponderance of evidence.
6. Causation.  An action under this chapter may not be decided by a "but for" causation 
standard.
7. Service of order of injunction. A temporary restraining order or preliminary or 
permanent injunction issued under this chapter must include a statement describing the 
penalties provided in this chapter for a knowing violation of the order or injunction. The 
clerk of the Superior Court shall transmit a certified copy of each order or injunction issued 
under this chapter to the appropriate law enforcement agency having jurisdiction over a 
location where the defendant is alleged to have committed the act giving rise to the action, 
and service of the order or injunction must be accomplished pursuant to the Maine Rules 
of Civil Procedure unless otherwise ordered by the court. Service must be made by the 
delivery of a copy in hand to the defendant.
8. Violation of court order.  A person who knowingly violates a temporary restraining 
order or preliminary or permanent injunction issued under this chapter commits a Class D 
crime.
9. Protection against violation. The rights secured by this chapter are protected 
against violation due to nongovernmental discrimination and violation under color of state 
law.  For purposes of this chapter, rights secured under this chapter and the laws of the 
State include rights that would be protected from interference of the exercise of rights by 
governmental actors regardless of whether the specific interference complained of is 
performed or attempted by private parties.
10. Right to pursue cause of action.  An employee may not be denied the right to 
pursue a cause of action arising under this chapter in a court of competent jurisdiction solely 
because the employee has not filed a charge of discrimination to the Maine Human Rights 
Commission or the employee is covered by a collective bargaining agreement.
11. Cause of action on employee's behalf.  In a cause of action brought under this 
chapter, a legal guardian, family member, representative of the employee or court appointee 
may represent the employee or the employee's estate if the employee is deceased.
§3705. State penalty; state enforcement
An employer that violates this chapter commits a civil violation for which a fine of not 
less than $10,000 may be adjudged. The Department of Labor is responsible for the 
enforcement of this section.
§3706. Attorney's fees and costs
In an action under this chapter, the court, in its discretion, may allow the prevailing 
party, other than the State, reasonable attorney's fees and costs, and the State is liable for 
attorney's fees and costs in the same manner as a private party.
§3707. Rights of labor unaffected 
This chapter may not be construed to impair, curtail or destroy the lawful rights of 
employees and their representatives to organize; to form, join or assist labor organizations; 
to bargain collectively through representatives of their own choosing; to strike; to picket; 
and to engage in activities for the purpose of collective bargaining or other mutual aid or 
protection.
SUMMARY
This bill enacts the Maine Workplace Transparency Act that ensures certain rights for 
employees subject to arbitration agreements as part of their employment.  The bill provides 
a list of unconscionable terms in an arbitration agreement that may not be used against 
employees and a list of rights for employees in their conduct in and out of the workplace.  
The bill provides the right to bring an action to dispute an unconscionable term or to enforce 
a right, including the issuance of a temporary restraining order or a preliminary or 
permanent injunction. The limitation period is 6 years, the burden of proof is by a 
preponderance of evidence and an employee may request a jury trial.  A violation of the 
provisions is subject to a civil penalty of not less than $10,000 enforceable by the 
Department of Labor, and a violation of a court order for a temporary restraining order or 
a preliminary or permanent injunction is a Class D crime. The prevailing party in an action, 
except for the State, is entitled to receive attorney's fees and costs, and the State is liable 
for attorney's fees and costs in the same manner as a private party.