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Maine Hospitality Legislative Report June Edition

June 8, 2018

Maine Hospitality Legislative Report
June 5, 2018 Report
This report will be published twice a month during the session and once a month thereafter

Note: This blog post was created from the Maine Hospitality Legislative Report, June 5, 2018 edition
The Maine Hospitality Legislative Report is a publication of Maine Restaurant and Innkeepers Associations. Send comments or questions to greg@mainerestaurant.com or greg@maineinns.com


14 AND 15 YEAR OLD EMPLOYEES IN HOTELS
Recent news reports about the Maine Department of Labor's program to get 14 and 15 year old workers, their parents and potential employers educated on the merits of teen employment have featured inaccuracies by the media, that have been addressed by the Maine DOL. We just want to make sure that you have the right info.

In the past, 14 year olds were prohibited from working anywhere except on the grounds of a hotel and 15 year olds were prohibited from entering the hallways that led to or included sleeping rooms. A recent change in statute now allows 14 and 15 year olds to go into these room corridors. It does not, as reported by some media outlets, allow for 14 and 15 year olds to go into the room. So they are not able to perform in-room housekeeping tasks or engage in room delivery or room service activities. Please be aware of this restriction as it can result in a heavy price for your business, if mishandled.

MAINE DOL ROLLS OUT PROGRAM TO ENGAGE YOUTH WORKERS
Here is the info that the Maine Department of Labor has disseminated this past week to get more 14 and 15 year olds out and working in our industry and others to assist with the labor shortage.
Augusta - As Maine students get ready for summer vacation, the LePage administration is doing its best to convince teens to spend at least some of their precious time off earning a wage. Officials from the state labor and education departments on Wednesday unveiled a program called YES: Youth Empowerment and the Steps to Success, intended to get more 14- and 15-year-old Mainers into the workforce.

New workers can fill critical labor gaps in the state's seasonal hospitality industry, and teens can gain valuable workplace experience and exposure to career opportunities, Labor Commissioner John Butera said at a news conference in Augusta Wednesday.

"It is no secret Maine has a significant workforce challenge," Butera said. "I think it is critical that we look to our youth cohort to provide our future workforce."

The program consists mainly of a public awareness blitz, including a new website and social media pages with resources and guidance for employers who want to hire young teens. A series of workshops to educate businesses, kids and parents about teen employment is planned next month. Teen employers also may benefit from a pilot grant program to subsidize the cost of hiring teens.

Employers in the tourism industry can apply to receive up to $400 for each new entrant into the workforce they hire. The program is funded with $50,000 from the Department of Economic and Community Development, Butera said.

Employers complain that Maine's increasing minimum wage - set to go up to $12 in 2020 - makes it much less appealing to hire young workers. A class for employers about hiring teens is scheduled is slated for the Bangor Career Center on June 12.

FEDERAL TIP POOLING RULE YOU HAVE BEEN HEARING ABOUT
The new Federal rule that could broaden a tip pool to different employees does NOT apply to any business, like a restaurant, that takes a tip credit of any size. If you are not paying your tipped employees the full minimum wage, then you are taking a tip credit. The proposed new rules apply to states with no tip credit or businesses that pay all their employees minimum wage or higher (takeout stand with a tip jar, etc.) There has been some question, as to whether this rule would apply in Maine at all, even for businesses that pay the full minimum wage, due to the way our statutes on tipped employees are written.  

Now the verdict is in, Scott Cotnoir, the Acting Director of the Maine Department of Labor Wage & Hour Division, says that Maine law prohibits the sharing of tips with back of the house employees, regardless of the Federal provision.

The three items noted in statute are as follows. They are all located in Title 26, under minimum wage laws-

  1. The tips received by a service employee become the property of the employee and may not be shared with the employer.
  2. That all tips received by the affected employee must be retained by the employee, except for a valid tip pooling arrangement limited to employees who customarily and regularly receive tips in accordance with subsection
  3. Tip pooling. This section may not be construed to prohibit an employer from establishing a valid tip pooling arrangement among service employees that is consistent with the federal Fair Labor Standards Act and regulations made pursuant to that Act.

 Please don't hesitate to ask any question or share thoughts you may have on the new rule and this interpretation.

H2B WORKER VISA UPDATE
There were initially 81,500 labor certifications requested on the first filing date (January 1) for 2018 for the country. There were 33,000 visas available. USCIS reached the visa cap in mid-March through the lottery process.   MOST CURRENT UPDATE-USCIS is saying that businesses must include the current form of the DOL ETA form to apply for the newly available Visas. It is available at this link.

MOST RECENT PRESS RELEASE- In an expected move, The Department of Homeland Security Secretary Nielsen has added an additional 15,000 visas to be available for the 2018 summer tourism season in the United States. That is the good news, the bad news is that will leave tens of thousands of positions unfilled as requests for summer work visas exceeded the number available by approximately triple. Details in the press release below.

 Washington, DC - Secretary of Homeland Security Kirstjen M. Nielsen announced that an additional 15,000 H-2B temporary nonagricultural worker visas will be available for Fiscal Year 2018. In this determination, Secretary Nielsen determined there are not sufficient, qualified, U.S. workers available to perform temporary non-agriculture labor to satisfy the needs of American businesses in FY18. This allocation is in addition to the 66,000 visas already issued this year. Secretary Nielsen made this decision after consulting with Secretary of Labor Alexander Acosta, members of Congress, and business owners.

"The limitations on H-2B visas were originally meant to protect American workers, but when we enter a situation where the program unintentionally harms American businesses it needs to be reformed," said Secretary Nielsen. "I call on Congress to pass much needed reforms of the program and to expressly set the number of H-2B visas in statute. We are once again in a situation where Congress has passed the buck and turned a decision over to DHS that would be better situated with Congress, who knows the needs of the program. As Secretary, I remain committed to protecting U.S. workers and strengthening the integrity of our lawful immigration system and look forward to working with Congress to do so."

 The H-2B temporary nonagricultural worker program was designed to serve U.S. businesses unable to find a sufficient number of qualified U.S. workers to perform nonagricultural work of a temporary nature. Congress set the annual H-2B visa cap at 66,000. A maximum of 33,000 H-2B visas are available during the first half of the fiscal year, and the remainder, including any unused H-2B visas from the first half of that fiscal year, is availablestarting April 1 through September 30. On February 27, 2018, USCIS determined that it had received sufficient H-2B petitions to meet the full FY 2018 statutory cap of 66,000.

In the FY 2018 Omnibus, Congress delegated its authority to the Secretary to increase the number of temporary nonagricultural worker visas available to U.S. employers through September 30, just as it did in the FY 2017 Omnibus. In the intervening time since enactment of the FY 2018 Omnibus, the Secretary consulted with the Secretary of Labor on the issue, in accordance with Congressional requirements, and developed this rule. Starting this week, eligible petitioners for H-2B visas can file Form I-129, Petition for a Nonimmigrant Worker. Eligible petitioners must submit a supplemental attestation on Form ETA 9142-B-CAA-2 with their petition.

Details on eligibility and filing requirements will be available in the final temporary rule and on the Increase in H-2B Nonimmigrant Visas for FY 2018 webpage to be published on uscis.gov when the final temporary rule is posted for public inspection. DHS is committed to ensuring that our immigration system is implemented lawfully and that American workers are protected. If members of the public have information that a participating employer may be abusing this program, DHS invites them to submit information to ReportH2BAbuse@uscis.dhs.gov and include information identifying the H-2B petitioning employer and relevant information that leads them to believe that the H-2B petitioning employer is abusing the H-2B program.

 

ISSUES HAPPENING LOCALLY
On the local side of government, the HHS and Public Safety Committee of the Portland City Council had a fairly lengthy presentation and discussion of the proposed paid sick leave ordinance back in November. The proponents, to include the Maine Women's Lobby and the Southern Maine Workers' Center, were given the unusual opportunity to present this proposal with no input from the business community.

The committee held a public hearing on April 24 to give proponents and opponents alike the opportunity to say what they liked or disliked about the proposed ordinance moving forward. We worked very closely with the Portland Regional Chamber of Commerce and the Retail Association of Maine to get the word out and drum up attendance for the public hearing. We are happy to report that the business community came out in large numbers, to include several Portland restaurateurs and innkeepers.

The next meeting was held on May 8 and did not allow for public comment. This meeting allowed the committee to get questions answered by city staff, that were asked back at the November meeting and that came up at the public hearing. There will be another committee meeting on June 12 for the committee to hear a presentation from the city's Finance Director on financial implications of the proposed paid sick leave ordinance.  This may result in an additional public hearing in June or July. It is too early to tell if that will occur. Stay tuned for details moving forward. The ordinance will probably not reach the full council for a vote until mid to late summer.

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The lodging community in Camden along with other towns and cities in the State are looking into strengthening their current short term rental (STR) ordinances. They are using several other towns and cities as their guide to include Rockland and Portland, Maine. They have met several times to work on language for a revised ordinance, the most recent meeting being June 4. There hope is to have something to present to the Camden Select board in June.

Onerous Referendum Question on the November Ballot
Question 1 on the November ballot would initiate an additional income tax on individuals that exceed a certain threshold. Specifics on the referendum question are below. If this sounds familiar it is, as a similar question to fund education in 2016 passed, but was later modified in the Legislature to fund education with existing general fund monies and eliminate the tax, which would have given us one of the highest state income taxes in the country. This potential outcome would be worse.

Here is a summary of the question.
This initiated bill (referendum question) establishes the Universal Home Care Program to provide in-home and community support services for all people with disabilities living in Maine who require assistance with an activity of daily living and people 65 years of age or older who are living in Maine and who require assistance with an activity of daily living, without regard to income, to be funded by a new tax of 3.8% on income and wages that exceed the maximum wages subject to social security employment taxes.

The following is a press release released by the coalition that has been created to defeat this measure. Our two associations are participating in this effort.

MAINE LEGAL, BUSINESS & HEALTH CARE LEADERS: PROPOSED 3.8% INCOME SURTAX IS BAD TAX POLICY; INITIATIVE ALSO VIOLATES LABOR AND PRIVACY LAWS AND IS UNCONSTITUTIONAL
Experts reveal significant flaws with measure that "is not what it appears to be," and would be the largest tax increase in Maine history

AUGUSTA, MAINE - Leaders and experts from Maine's legal, business and health care communities met in Augusta on Wednesday to outline significant flaws with the proposed 3.8 percent income surtax on the ballot in November. The proposed tax increase to fund universal home care for seniors and people with disabilities is bad tax policy, would be the largest tax increase in Maine history, and the initiative violates the Maine and U.S. Constitutions, as well as federal labor and privacy laws.

"The 3.8 percent income surtax on the ballot this November is terrible tax policy and parts of the initiative are unconstitutional," said Dana Connors, president of the Maine State Chamber of Commerce. "It would be the largest tax increase in Maine history, hit Maine's self-employed, small and family-owned business owners especially hard, and the tax would apply to all sources of income and combined family income. Because it violates both the Maine and U.S. Constitutions, if passed, it also would create a legal mess that would be difficult and costly to clean up."

Dan Wathen, former Chief Justice of the Maine Supreme Judicial Court, spoke to the measure's unconstitutionality. It would violate the Maine Constitution by delegating to private entities the authority to elect persons to discharge a governmental function and does so without providing sufficient standards to guide the governing board in designing and administering the program.

The measure violates the U.S. Constitution and federal labor law by authorizing a dues checkoff provision that is preempted by federal law and by subjecting individual home health care providers employed directly by families or individuals to a service fee for a labor union that they do not choose to join.

Additionally, passage of the ballot initiative raises serious privacy concerns. The home addresses, contact information, and sensitive health information about the elderly and disabled could be turned over to private groups without their permission. The measure also gives an unaccountable private organization power to control and spend hundreds of millions of tax dollars each year, without requiring any independent oversight or public audit of how the tax dollars are spent.

"These significant flaws with the proposed 3.8 percent income surtax are just the tip of the iceberg," said Jeff Austin of the Maine Hospital Association. "The problems with the initiative would have been uncovered had a public hearing and work session been held in the normal course of the Legislature's business. Maine voters need to understand this referendum question is not what it appears to be and should not be adopted."

This blog post was created from the Maine Hospitality Legislative Report, June 5, 2018 edition
The Maine Hospitality Legislative Report is a publication of Maine Restaurant and Innkeepers Associations. Send comments or questions to greg@mainerestaurant.com or greg@maineinns.com

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