On January 1, 2021, a new law came into force setting benchmarks for the use of apprentices on power generation facility construction projects. Signed into law in 2019, the law was part of “An Act to Establish a Green New Deal for Maine” and is found at 26 MRSA §§ 3501 and 3502. Under the new law, employers engaged in the construction of power generation are required to use a prescribed number of apprentices. As of January 1, 2021, “10% of all persons employed in the construction” of a power generation facility must be apprentices. This percentage increases to 17.5% on January 1, 2025, then increases again to 20% on January 1, 2021. 2027.
Under the regulations, the term “persons employed in construction” means “all persons employed in a learning profession during any phase or period of a production facility construction operation, or throughout the duration of such operation or during any combination of such periods. This definition narrows the project workforce to which these apprenticeship percentage requirements apply to jobs that traditionally provide an apprenticeship path to career development. 
The act also authorized the Maine Department of Labor (MDOL) to develop and issue regulations for the implementation and enforcement of the new law. This rule-making process is important because the law itself offers little guidance on how contractors must comply with the law or what to do if they cannot find enough support. apprentices. MDOL regulations for the new law were finally released on January 15, 2022. These new regulations can be found here. Unfortunately, the regulations provide little guidance to affected contractors and sub-contractors, meaning there is likely to be some confusion as to how the law will be applied.
The main concern regarding the implementation of this law is the general lack of apprentices and apprenticeship programs available in the state of Maine. Maine contractors are mostly open shop. Although a few large Maine-based non-union contractors have implemented apprenticeship programs, most Maine-based contractors will be at a serious disadvantage in complying with these new laws in the short term. Industry associations such as Associated General Contractors (AGC) of Maine have played an important role in developing apprenticeship programs for its members and the industry as a whole. Upstart apprenticeship programs present a challenge due to Maine’s relatively small population and limited number of young people interested in entering the trades.
The regulations allow contractors and subcontractors to claim that “insufficient numbers of qualified apprentices were available to meet the required percentage”. To prove this, the regulations require an employer to demonstrate that it “has made reasonable efforts to find and employ” apprentices. “Reasonable efforts” may “include evidence of having contacted or attempted to contact the Maine Apprenticeship Program, sponsors of apprenticeship training programs such as labor organizations and employers operating in Maine, or other appropriate sources”. It remains to be seen how the MDOL interprets “reasonable efforts”.
The regulations also set out guidelines for self-monitoring and reporting by employers. These rules require that:
- Before commencing a project or “phase” of a project, an employer must submit to the Bureau of Labor Standards (Bureau) within MDOL “a plan to locate and employ a sufficient number of qualified apprentices.”
- At the end of each phase of the construction project, “the employer shall submit to the Board an interim report on the employer’s efforts to hire qualified apprentices, including a clear explanation if it has not hired a number enough qualified apprentices during this phase of the project.”
- At the end of the project, “the employer must submit a final report also including a clear explanation if he did not hire a sufficient number of qualified apprentices during the entire duration of the project”.
The regulations offer no guidance as to what constitutes a “phase” of an energy construction project, except that an employer’s “established pay period” may be considered a “phase”. “. In practice, this term has no generally accepted meaning in the industry.
The regulations also include record-keeping requirements, including that payroll records must be “available to a representative of the Bureau at each site covered by the law” or, if not on site, “in within 10 miles of the site while the project is active”, that the records “are current within three days of the last pay period paid by the contractor or subcontractor”, and that the records “are retained, retained, and open for inspection by the Office for at least three years after the completion of the project.”
Requiring storage on site or within 10 miles of site suggests a requirement for paper record keeping. These requirements appear to be out of step with current electronic record keeping practices. It seems unreasonable to criticize an entrepreneur subject to these rules for having stored files electronically on a server residing at his head office.
Finally, the statue allows the Bureau to impose fines between $50 and $200 per violation. According to the regulations,[e]Every day, a sufficient number of apprentices are not employed in accordance with the law and these rules are a separate violation.
The goal of using more apprentices on energy construction projects is laudable. Unfortunately, it can be difficult for contractors to comply with the law without further guidance and there may be significant confusion and disagreement about its application. At this time, we are not aware of any efforts by MDOL to take enforcement action against these new rules.
 Under 26 MRSA §3201(2), an “apprenticeship occupation” is “an occupation which is specified by industry and which:
A. involves skills that are usually acquired practically through a structured and systematic program of supervised on-the-job learning;
B. is clearly identified and commonly recognized in an industry;
C. involves manual, mechanical or technical skills and knowledge which, according to the industry standard for the occupation, requires the completion of at least 2,000 hours of on-the-job learning to acquire; and
D. Requires related instruction.