Labor attorneys and business leaders are urging Portland employers to consult with their lawyers before deciding how much to pay their employees next month, saying that the city’s decision not to enforce a hazard pay requirement until 2022 could expose them to lawsuits.

The Portland Community Chamber of Commerce issued an email alert to its members Wednesday morning, after city officials stated their position on the minimum wage ordinance approved by 62 percent of the voters last week.

“The City’s interpretation may not govern private lawsuits brought by employees claiming that the emergency wage provision should start on December 5, 2020,” the chamber’s email said. “For this reason, we urge all employers who may be governed by this ordinance to consult legal counsel and to share their concerns about the ordinance with their elected officials.”

The uncertainty stems from a citizen minimum wage initiative approved last week. The city’s minimum wage is currently $12 an hour, which is in line with the state’s, but the ordinance calls for it to increase by one dollar an hour each year beginning Jan. 1, 2022, until it reaches $15 an hour in 2024.

The initiative includes a provision requiring employers to pay time-and-a-half to employees working during a declared emergency, such as the ongoing pandemic. That provision applies only to people physically working in a Portland workplace, not to those who telecommute.

Mayor Kate Snyder announced Tuesday that councilors agreed with city staff’s decision not to enforce the hazard pay provision until 2022, when the first increase would kick in. The announcement came after an hourlong, closed-door meeting with their attorney, Danielle West-Chuhta.

It also came after the city received dozens of emails from business owners and nonprofit agencies worried about how they would pay a minimum of $18 an hour next month. Several said they’d have to resort to drastic measures: cut jobs, reduce hours, eliminate other benefits, move out of the city or close down. But Snyder said those concerns played no role in the city’s interpretation.

People First Portland, the political group formed by the Southern Maine Democratic Socialists of America and their allies, quickly dismissed the city’s interpretation. Leo Hilton, a campaign volunteer, said People First Portland would continue to advise workers that the new minimum wage, including hazard pay, should be $18 an hour starting Dec. 3 and that they have the right to sue their employers if they pay any less.

Amy Dieterich, an Auburn attorney who specializes in labor and employment law, said the plain language of the ordinance appears to support the proponents’ reading. That’s because the city already has a minimum wage ordinance and the question approved by voters would become part of the existing ordinance, not an entirely new ordinance that would take effect in 2022.

“There already is an effective minimum wage in the ordinance,” Dieterich said. “The city’s interpretation would only make sense if there was no minimum wage already in the ordinance.”

That opinion aligns with one provided to the City Council by Benjamin Gaines, the attorney advising People First Portland.

Dieterich said the city’s announcement creates more questions – and risks – for business owners because two enforcement mechanisms are in the ordinance: the city and a private right of workers to take legal action against their employers. If a judge finds that an employer has violated the ordinance, she said, they could be responsible for twice the amount of back pay, plus legal costs.

The city’s position “creates an unfortunate amount of confusion and litigation risk for private employers,” Dieterich  said.

Shelby Leighton, an attorney with Johnson Webbert & Young who specializes in employment and civil rights law, said proponents “have a pretty good argument” based on the ordinance text and the city’s written interpretation. That’s because the city’s original minimum wage ordinance, passed in 2016, and the changes approved by the voters each contain references to the state minimum wage. (Leighton serves on the board of the Southern Maine Workers’ Center, which worked with People First Portland on the minimum wage issue, but she said she was not involved in the effort.)

“I do think the proponents have a pretty strong argument that this should go into effect in the normal 30 days, and there is significant legal risk in the city’s argument,” Leighton said. “I think the city’s position is that there is no city minimum wage until Jan. 1, 2022. I think that’s a very narrow reading of the ordinance.”

Tawny Alvarez, a partner at the Portland law firm Verrill Dana, was less dismissive of the city’s interpretation. But she acknowledged the likelihood of legal challenges and the risk that businesses could be sued by their workers for back pay.

“Ultimately it will be up to the courts to decide, and employers need to be mindful that the city’s ordinance does include a private right of action,” Alvarez said. “Therefore businesses should consult with their attorney before relying on the city’s position that the ordinance does not take effect until Jan. 1, 2022.”

Workers are also objecting to the city’s position.

Natalie Jones works in retail in the Old Port. Derek Davis/Staff Photographer

Natalie Jones, who works in the Old Port, didn’t waste any time telling Portland city councilors how she felt about their decision not to enforce the hazard pay provision until 2022. In an email to councilors Tuesday night, she described their decision as “cowardly” and “disgusting.”

Jones, who earns $13 an hour at her retail job, said in an interview Wednesday that she is at home quarantining (with pay for each day she was scheduled to work) after being exposed to a coworker who tested positive for COVID-19. She said she is “appalled” by the council’s announcement.

“It was pretty clear this would be implementing the hazard pay on the current minimum wage,” Jones said. “Even the corporations and businesses that opposed it believed that it was clearly stated. The huge reason I spent my time and my days off flyering for this is because I knew this hazard pay would be implemented during this time when I am struggling so much.”

A day after the city’s announcement, Snyder said she has received more than a dozen emails from upset workers and advocates. Some told Snyder to enjoy “licking the boots of landlords and corporations.” Another called her a vulgar insult.

While she and seven councilors had publicly opposed the minimum wage referendum, Snyder said they are relying on their attorney’s interpretation of it and are not trying undermine the will of the voters.

“For me, that (campaigning) is over when the voters speak,” she said. “Now, it’s our job to make sure we’re giving clear guidance and people are complying appropriately.”

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