Frequently Asked Questions
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The following is provided for informational purposes only and is in no way intended to be construed as legal advice. If you need legal advice please consult an employment law attorney.
If you have a question that is not addressed below, please email us for the answer at info@hospitalitymaine.com.
The Americans With Disabilities Act (ADA) took effect January 26 1992. This sweeping law is designed to protect the rights of disabled persons to access public accommodations, which includes all lodging and foodservice establishments. This is a complex and sometimes ambiguous law which imposes significant obligations on lodging properties.
- Title I of the ADA prohibits lodging operators from discriminating against employees or job applicants with disabilities or perceived disabilities.
- Title III of the ADA prohibits lodging operators from discriminating against customers with disabilities or perceived disabilities.
Title I of the law covers employers of 15 or more employees. It instructs employers to make reasonable accommodation to allow individuals with disabilities to perform the essential functions of a job. An accommodation is not required unless it is reasonable and will not impose an undue hardship on the employer. An undue hardship is defined as an action requiring significant difficulty or expense — i.e. an action that is unduly costly extensive substantial disruptive or that will fundamentally alter the nature of services offered. Factors such as size of business its overall financial resources and the cost of the accommodation will be taken into consideration.
Title III of the ADA bans discrimination against people with disabilities at places of public accommodation, which includes lodging properties restaurants and bars. Title III is designed to ensure that all individuals can participate equally in the goods and services that public accommodations offer.
The act also mandates that any future construction and renovation meet strict guidelines to ensure that the lodging properties are accessible to people with disabilities.
Department of Justice ADA Home Page
New Facilities
Maine Statutes on Accessibility
- Unlawful public accommodations
- Standards for facilities constructed or altered between September 1, 1974 and January 1, 1982
- Standards for facilities constructed or altered between January 1, 1982 and January 1, 1984
- Standards for facilities constructed or altered between January 1, 1984 and January 1, 1988
- Standards for facilities constructed or altered between September 1, 1988 and January 1, 1991
- Standards for facilities constructed or altered between January 1, 1991 and January 1, 1996
- Standards for facilities constructed or altered between January 1, 1996 and March 15, 2012
- Standards for facilities constructed or altered after March 15, 2012
An individual must be 18 years of age to rent a hotel room in Maine. Some properties may require that an individual be at least 21 years of age to rent a hotel room.
Exceptions: An innkeeper or campground owner may, at the innkeeper's or campground owner's discretion, grant the accommodations, facilities and privileges of a hotel, lodging house or campground to a minor (under 18 years of age) if that minor:
A. Presents a signed notification from a parent that the parent accepts liability for the guest room or campground site costs, taxes, all charges by the minor and any damages to the guest room or its furnishings or to the campground site caused by the minor while a guest at the hotel, lodging house or campground; and
B. Provides the innkeeper or campground owner with a valid credit card number or cash deposit to cover the guest room or campground site costs, taxes, charges by the minor and any damages to the guest room or its furnishings or to the campground site caused by the minor. Any cash deposit provided must be refunded to the extent not used to cover any charges or damages as determined by the innkeeper or campground owner following room or campground site inspection at check-out.
Accompanied Children: It is considered unlawful discrimination “for any person who is the owner lessee proprietor manager superintendent agent or employee of any public accommodation for lodging to directly or indirectly refuse or withhold from or deny to any person that lodging on the grounds that the person is accompanied by a child or children who occupy the unit unless the total number of persons seeking to occupy the unit exceeds the number permitted by local ordinances or reasonable standards relating to health safety or sanitation.
This section does not apply to the owner of a lodging place: A. That serves breakfast; B. That contains no more than 5 rooms available to be let to lodgers; and C. In which the owner resides on the premises.
Subject to law and the rules of the bureau, hotel or bed and breakfast licensees may sell liquor in the original packages or by the drink to hotel guests or bed and breakfast guests, respectively. A sale to a hotel guest or bed and breakfast guest may be delivered to the guest's room only by a hotel or bed and breakfast employee, respectively.
So you’re wondering what you’ll have to do to meet State requirements when opening a B&B in Maine?
First determine how many bedrooms will be available for rent. You are allowed to rent to 3 non-family members without requiring State approval. At 2 people per bed that equals 1 bedroom. (The 2nd rental bedroom might include a 4th person). Once you are set up to rent more than 8 beds (16 people) then the occupancy changes from the B & B classification of Rooming & Lodging to Hotel. Hotel use has more stringent requirements than does Rooming and Lodging.
Second obtain a permit from our office to document that your plans will adhere to State law and the 2009 NFPA 101 Life Safety Code…
FULL TEXT OF THE FIRE MARSHALL’S RULE
Means of Egress and Sprinkler Systems
The Maine Innkeepers Association successfully initiated legislation in the first year of the 120th Legislature that allows two-story B&Bs and inns that sleep fewer than 16 people to have a single exit rather than two means of egress from every room if the building is protected throughout by an approved automatic sprinkler system and meets all other requirements of NFPA Life Safety Code 101. This legislation actually removes the term “boarding house or lodging house” from the statute mandating the second means of egress. It had previously appeared following the term “hotel” toward the top of the section.
For more information regarding sprinkler systems visit the State Fire Marshall’s web site by clicking here.
A service charge may be imposed on any dishonored check if written notice of the service charge was conspicuously displayed in the cashier’s area when the check was issued. As we understand it based on conversations with several state agencies and statewide associations the state has not imposed a limit on the service fee you may collect for a dishonored check although all agreed it must be reasonable.
The following procedures are suggested for collecting on a bad check:
- Resubmit the check to the bank for a second time (most banks will do this automatically).
- If returned a second time and the person takes no action to correct the situation, they could find themselves in violation of Section 708 of the Maine Criminal Code. The court calls this offense “negotiating a worthless instrument punishable as a Class C or Class D” violation.
- After the five days assess a collection fee (based on what you had conspicuously posted).
- Send written notice of dishonor requesting payment for the check and the collection fee.
- If not paid within 30 days send a written notice outlining the possible civil penalties denoted in statue (see below).
- If still not paid, consider contacting your city or county law enforcement officials for assistance.
This federal standard was developed by OSHA to limit the workplace exposure of employees to Hepatitis B AIDS and other bloodborne pathogens. The rule requires that lodging businesses assess the “occupational exposure” of their employees to bloodborne pathogens which are micro-organisms in the human blood. “Occupational Exposure” is defined as “reasonable anticipated skin eye mucous membrane or parenteral contact with blood other potentially infectious materials that may result from the performance of duties.” One job generally acknowledged to have occupational exposure is housekeeping which might bring employees into contact with needles or blood on sheets.
If exposure exists the employer must design a plan to prevent bloodborne pathogen infection:
- Employers must have a written exposure control plan.
- Employers must implement protective practices designed to decrease the likelihood of exposure (such as wearing gloves).
- Employers must provide the Hepatitis B vaccine. If the risk of exposure is significant OSHA generally seeks to have this vaccine offered prior to any exposure occurring (if employees refuse the vaccine make sure to get this in writing and keep it on file).
- Employers must provide post-exposure follow-up. Data on any incident in which an employee may have been exposed must be kept for 30 years.
- Employers must provide training.
- Employers must maintain records. Training records must be kept for three years. Any employee who is exposed to blood body fluids or needles that is sent to the doctor for evaluation and possible vaccine must have the pertinent medical and incident data held in file for 30 years even after they leave your organization.
Where there is occupational exposure the employer must provide any or all of the following depending on the degree of exposure: gloves gowns face shields or masks and eye protection mouthpiece (especially for CPR) pocket masks or other ventilation devices. The employees must have a nearby hand washing facility for use as soon as feasible after removal of gloves and other personal protective equipment. When contaminated needles are found they are to be placed in appropriate containers and discarded. It is recommended that the local medical facility serving your property be a resource for such containers; as well as red bags with approved BIOHAZARD symbol; and contacts for appropriate removal of medically contaminated waste from the property.
Health compliance of OSHA has agreed on the use of special response teams of specially designated employees to clean up incidents of vomitus containing blood as well as in incidents where there is blood or body fluids in bedding or towels. Under this plan should any such incident occur the special response team would be called into action. All other employees would avoid the potential hazard. The members of the special response team must be offered the Hepatitis B vaccine series. For the complete text of the OSHA rule and more information on bloodborne pathogens visit the OSHA bloodborne pathogens web site.
- Many not work more than six days in a row.
- Cannot work before 7 a.m.
- Not after 7 p.m. during school year.
- Cannot work after 9 p.m. during summer vacation
.
When School Is Not in Session
- No more than 8 hours in any one day (weekend, holiday,
vacation or workshop).
- Not more than 40 hours in a week (school must be out
entire week).
When School Is in Session
- No more than 3 hours on a school day, including Friday.
- Not more than 18 hours in a week that school is in session one or more days.
16 and 17 year olds (enrolled in school)
- May not work more than 6 days in a row.
- Cannot work before 7 a.m. on a school day.
- Cannot work before 5 a.m. on a non-school day.
- Cannot work after 10:15 p.m. the night before a school day.
- Can work up to midnight when there is no school the next day
When School Is Not in Session
- No more than 10 hours in any one day (weekend, holiday, vacation, or workshop).
- No more than 50 hours in a week.
When School Is in Session
- No more than 6 hours on a school day.
- No more than 10 hours on any holiday, vacation, or workshop day.
- On last day of school week, may work up to 8 hours.
- No more than 24 hours in a week, except may work
- 50 hours any week that approved school calendar is less than three days or during the first and last week of school calendar.
An innkeeper may refuse or deny accommodations facilities or privileges of a hotel or lodging house to or may eject from the hotel or lodging premises:
- Person unwilling or unable to pay
- Minor
- Property dangerous to others
- Limit on occupants exceeded
- Violates laws or rules endangers others…
Children: It is considered unlawful discrimination “for any person who is the owner lessee proprietor manager superintendent agent or employee of any public accommodation for lodging to directly or indirectly refuse or withhold from or deny to any person that lodging on the grounds that the person is accompanied by a child or children who occupy the unit unless the total number of persons seeking to occupy the unit exceeds the number permitted by local ordinances or reasonable standards relating to health safety or sanitation.
This section does not apply to the owner of a lodging place:
- That serves breakfast;
- B. That contains no more than 5 rooms available to be let to lodgers; and
- C. In which the owner resides on the premises.
The Maine Human Rights Commission has been firm in its assessment that the law prohibits B&Bs Inns and others from denying lodging to guests because they have children. Further, the Commission has suggested that language such as “this inn most appropriate for children over age 12” would be interpreted as discriminatory.
Full text of law - Denial of Lodging
Full text of law - Ejection of Guest
"Public Place" includes the lobbies hallways lavatories toilets and basement portions of apartment houses hotels public buildings and transportation terminals and public beaches. A person is guilty of public drinking if the person:
- After being forbidden to do so personally by a law enforcement officer the person drinks liquor in any public place knowing that the person is not licensed or privileged to do so unless the person has been given permission to do so by the owner or authorized person; or
- Within a municipality the person drinks liquor in any place…
Employers are required to pay Use Tax on the cost of food used to prepare an employee's meal. The tax should be calculated at 5.5%, not the 8% meals tax rate. It should be based on the cost of the food only, not labor or overhead.
Example: Using a food cost of $1.00 per meal per employee, the employer would declare $0.06 tax per employee per day. If a restaurant employs, on average, 20 people per day, this would equal a Use Tax of $1.20 per day or approximately $36.00 per month.
The tax should be paid to the state monthly and sent with the sales tax return on the 15th of each month.
Federal menu labeling requirements apply to restaurants and similar retail food establishments if they are part of a chain of 20 or more locations, doing business under the same name, offering for sale substantially the same menu items and offering for sale restaurant-type foods.
Menu Labeling Compliance Guidelines
Menu Labeling Final Rule – Food and Drug Administration
January 1, 2024 – $14.15
The tipped wage for customarily tipped employees is $7.08/hour.
Overtime for tipped employees:
Minimum Wage $14.15/hour
x time and a half x 1.5
Wage for overtime hours worked: $21.23/hour
Less Tip Credit - 7.08/hour
Overtime Rate employer pays: $14.15/hour
Overtime for tipped employees in Portland:
Minimum Wage $15/hour
x time and a half x 1.5
Wage for overtime hours worked: $22.5/hour
Less Tip Credit - 7.50/hour
Overtime Rate employer pays: $15.00/hour
Portland's minimum wage for 2024 is $15/hour.
The tipped wage for customarily tipped employees is $7.50/hour.
Music licensing law affects operators who play music for the public in their lodging properties or restaurants. Created to protect the rights of music composers the U.S. Copyright law has special implications for our industry. Under Title 17 of the law the “public performance” of copyrighted music requires permission from the copyright owner or its licensing agent. Here’s the bottom line: restaurants hotels motels inns B&Bs motels and resorts that use music as background or for live performance in any manner are as a general rule liable for royalties under the Copyright Law. The law treats music used in a public place as a public performance even if there is no direct charge!
How do you obtain permission to provide music for your guests? This is generally done through licensing societies. The largest two of which are the American Society of Composers Artists and Publishers (ASCAP) and Broadcast Music Inc. (BMI). A smaller organization the Society of European Stage Authors and Composers (SESAC) represents a few artists primarily in the areas of classical gospel and country music. In order to comply with the law most hospitality operators will need to secure blanket licensing agreements with both ASCAP and BMI because each organization covers a separate slate of artists.
Click here to access ASCAP’s fact sheet.
Click here to access BMI’s fact sheet. There you’ll also find a downloadable BMI agreement (PDF format).
Generally a television or radio in your guest room does not constitute a “public performance” and is not subject to music licensing. This is related to Section 110(5) of the copyright law which exempts from the law the transmission of copyrighted music on “a single receiving apparatus commonly used in private homes” if there is no direct charge to hear the music and if the music is not further transmitted. If a lodging establishment qualified for that exemption — that is the operator plays only radio music and uses only homestyle equipment to do so — a copyright license may not be required. Similarly if the operator has only one TV of the size commonly used in private homes no license is required. The law however while not entirely clear appears to exempt only one unit — one radio or TV but not both. Court cases in this regard have considered both the size of the business and the type of equipment used. This is an area in which to exert extreme caution. You may wish to consult with legal counsel regarding clarification of the homestyle exemption.
Does my employer have to provide me with rest breaks?
Employers must offer employees a consecutive 30-minute unpaid or paid rest break after 6 hours worked. An employee may waive his or her right to a rest break (preferably in writing).
When the employer allows the employee to work through a rest break period, that time must be included as hours worked.
Shorter breaks are common but not required by law. Shorter breaks or pauses away from performing duties must be paid and cannot be deducted from the employee’s time worked.
Can my employer require me to take a consecutive 30-minute rest break?
Yes.
What is exempt from sales tax?
- The Sales Tax Division of Maine Revenue Services advises that persons claiming tax exempt status for meals or banquet service must:
- Present a company check or credit card, (or make prior arrangements for billing) accompanied by an authorizing letter that includes the company tax ID number.
The Maine Human Rights Act requires that a place of public accommodation (hotels and restaurants) allow the use of service animals by individuals with disabilities.
What counts as a service animal?
A service animal is a dog that has been individually trained to do work or perform tasks for the benefit of a person with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability. Other species of animals are not considered service animals in the context of places of public accommodation.
What can a place of public accommodation (PA) ask a person with a service animal?
A PA may ask only two questions to determine if a dog is a service animal:
-
- Is the animal required because of a disability?
- What work or task has the animal been trained to perform?
These are the only permissible inquiries that may be made. A PA may not ask about the nature or extent of the person’s disability. These inquiries should not be made when it is readily apparent that the dog is a service animal.
What if there is a problem with the service animal? Can it be removed?
A place of public accommodation may ask a person with a disability to remove a service animal from the premises if either 1) the animal is out of control and the handler does not take effective action to control it or 2) the animal is not housebroken. It is advisable to have a written record of correspondence under these circumstances.
Maine Human Rights Commission “Service Animals in Places of Public Accommodation”
- Employees 17 years or older may sell and serve alcoholic beverages in Maine when a person at least 21 years of age is present in a supervisory capacity.
- Employees 15-16 years of age may act as bus persons clearing tables and handling alcoholic beverage containers and glassware.
- Employees 15 and 16 years old may stock shelves and/or coolers handling only unopened containers of alcoholic beverages including beer, wine and spirits alcohol.
- Minors under 15 may not handle alcoholic beverages.
Business days and hours for the sale and consumption of liquor
Tip credits allow an employer to credit a portion of an employee’s tips toward the employer’s obligation to pay the minimum wage. An employer may consider tips as part of the wages of a service employee, but such a tip credit may not exceed 50% of the minimum hourly wage.
If the employee’s hourly wage plus tips earned don’t add up to at least the prevailing minimum wage, the employer must make up the difference to satisfy the minimum wage obligation.
State of Maine minimum wage: $14.15 per hour (2024)
City of Portland minimum wage: $15.00 per hour (2024)
State of Maine tipped wage: $7.08 per hour (2024)
City of Portland tipped wage: $7.50 per hour (2024)
The tips received by a service employee become the property of the employee and may not be shared with the employer. Tips that are automatically included in the customer's bill or that are charged to a credit card must be treated like tips given to the service employee. A tip that is charged to a credit card must be paid by the employer to the employee by the next regular payday and may not be held while the employer is awaiting reimbursement from a credit card company. The employer may not deduct any amount from employee tips charged to a credit card, including, but not limited to, service fees assessed to the employer in connection with the credit card transaction.
In a full-service restaurant, servers, customers, and restaurant owners all benefit from the tip credit. It maximizes server earnings, allows operators to hire ample waitstaff, and keeps menu prices affordable.
This optional compensation model means that tipped workers never make less than the prevailing minimum wage—in fact, they often make much more. The high earning potential the tip credit provides is what draws servers to a career in the hospitality industry. That’s why restaurant workers want to preserve—not eliminate—the tip credit. And the majority of U.S. customers support the tip credit, too.
Tip Credit Policy Brief - National Restaurant Association
Tax Form 8846 – Credit to EmployerMinors under 16 years old must obtain a work permit before beginning a job. This includes homeschoolers. They must get a new permit every time they begin a new job until they reach 16 years old, even if they work for their parents.
In order to apply for a work permit, the minor must be:
- enrolled in school;
- not habitually truant or under suspension; and
- passing a majority of courses during the current grading period.
Employers must have a stamped, approved work permit on file before allowing any minor under 16 years old to work.
Once the minor has the promise of a job, she or he must take proof of age to the office of the superintendent of schools. Parental permission is required to work.
The superintendent’s office will complete the permit and submit the form to the Maine Department of Labor. A copy of the Maine Work Permit Form can be downloaded here.
The minor cannot work until the Department of Labor approves the permit.
The Department of Labor issues permits for specific jobs with specific employers. Permits are not transferable to other jobs or employers. A minor under 16 needs a separate work permit for each place he or she works.
A minor can have one active permit during the school year and two during the summer.
Maine Laws Governing the Employment of Minors
Full text of Maine law
What is a “uniform”?
Many employers have learned the hard way that they can get in big trouble with the U.S. Department of Labor (DOL) if they make certain employees pick up the tab for their uniforms.
For example -- If you merely prescribes a general type of ordinary basic street clothing to be worn and permits variations in the details of dress, the garment is chosen by the employees would not be considered a uniform. If your only instructions are that an employee wear dark colored trousers or skirts and dark colored shoes, such items of clothing would not constitute a uniform.
A general rule of thumb: The more specific you are about what employees must wear to work, the more likely it will be considered an official uniform.
Of course, any article of clothing that is associable with a specific employer, by virtue of an emblem (logo), or distinctive color scheme, would be considered a uniform.
Beware of requiring all white items (top, bottom and shoes) - the DOL has in the past ruled that because most people do not have white pants, shoes and tops in their wardrobes, the employer was responsible for providing them.
Again, these are general guidelines on what constitutes a uniform. Remember, that if you require a uniform to be worn, you may also be responsible for the laundering of such garments. Call us at 207/623-2178 if you have additional questions.
Source: National Restaurant Association’s The Legal Problem Solver for Foodservice Operators
What is a “uniform”?
Many employers have learned the hard way that they can get in big trouble with the U.S. Department of Labor (DOL) if they make certain employees pick up the tab for their uniforms.
For example -- If you merely prescribes a general type of ordinary basic street clothing to be worn and permits variations in the details of dress, the garment is chosen by the employees would not be considered a uniform. If your only instructions are that an employee wear dark colored trousers or skirts and dark colored shoes, such items of clothing would not constitute a uniform.
A general rule of thumb: The more specific you are about what employees must wear to work, the more likely it will be considered an official uniform.
Of course, any article of clothing that is associable with a specific employer, by virtue of an emblem (logo), or distinctive color scheme, would be considered a uniform.
Beware of requiring all white items (top, bottom and shoes) - the DOL has in the past ruled that because most people do not have white pants, shoes and tops in their wardrobes, the employer was responsible for providing them.
Again, these are general guidelines on what constitutes a uniform. Remember, that if you require a uniform to be worn, you may also be responsible for the laundering of such garments. Call us at 207/623-2178 if you have additional questions.
Source: National Restaurant Association’s The Legal Problem Solver for Foodservice Operators