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General Earned Paid Leave FAQ's
The Bureau has compiled lists of frequently asked questions and answers from the Earned Paid Leave listening sessions held in the Fall of 2019, public comments received on the proposed Rules, public webinar sessions in 2020, stakeholder meetings, and conversations among the Maine Department of Labor staff.
The following information is general guidance based on hypothetical scenarios. It is not legal advice on any specific situation.
Individual cases must be analyzed and decided by the Bureau of Labor Standards (BLS).
Click on any of the drop downs listed below to view the general FAQs listed.
Calculating the Base Rate of Pay
Answer: The Earned Paid Leave law states that earned leave must be paid at least the same base rate of pay that the employee received immediately before taking earned leave and that employees must receive the same benefits as those provided under established policies of the employer pertaining to other types of paid leave.
26 MRS § 664 (3) establishes that the regular hourly rate includes all earnings, bonuses, commissions, and other compensation that is paid or due based on actual work performed and does not include any sums excluded from the definition of “regular rate” under the Fair Labor Standards Act, 29 USC, section 207(e).
Fair Labor Standards Act (PDF)
Answer: The base rate of pay is determined by looking at the most recent week worked by a per diem employee. The total earnings from that week, divided by the total hours worked will equal the base rate of pay.
Answer: The base rate of pay is calculated by dividing the total earnings for the week by the total hours worked.
Answer: If all rates of pay are based on the tip credit then your base rate of pay is actually minimum wage.
Answer: Bonuses and Commissions are factored into the base rate for non-exempt employees only. However, only the amount associated with the week immediately prior to the employee using Earned Paid Leave will apply. For example, if the employee is paid on a weekly basis and the bonus or commission is also paid on a weekly basis, then the total amount of the bonus or commission will apply to that week. If the bonus or commission payment is deferred (i.e., paid on a monthly, quarterly, annual, or other specific timeframes) then the bonus or commission can be prorated to a weekly amount.