Portland workers intervene in lawsuit against new hazard pay ordinance

Two Whole Foods workers have intervened in a lawsuit challenging Portland’s new ordinance that sets the minimum wage at $18 an hour during declared emergencies.

The workers asked the court to enforce the ordinance, arguing that it was the will of voters and that people reporting to their jobs during the pandemic deserve to be paid fairly.

More than 60 percent of voters last month supported a minimum wage proposal that will gradually increase that rate from $12 to $15 an hour. That initiative also included a “hazard pay” provision that increases the minimum wage by an additional 50 percent for people who report to Portland workplaces during declared emergencies, like the ongoing statewide coronavirus emergency.

After the election, city officials said that provision will not kick in until January 2022, when the minimum wage starts to increase. But backers of the measure said it takes effect 30 days after the city certified the election results, which would be Sunday. Those conflicting interpretations have left Portland employers to decide whether to raise pay to $18 this month or risk being sued by minimum wage employees.

The Portland Regional Chamber of Commerce filed a lawsuit earlier this week to block the hazard pay provision. The chamber has asked a judge to either throw out that emergency pay provision or rule that it doesn’t take effect until January 2022.

The two grocery store workers – Caleb Horton and Mario Roberge-Reyes – filed their motion to intervene Thursday. Justice Thomas Warren granted that motion the same day. In the document, the workers said they plan to file a lawsuit against Whole Foods if the grocer does not comply with the ordinance, and they asked the court to enforce the provision starting this month. Horton makes $15 an hour, and Roberge-Reyes makes $15.40 an hour.

Their attorneys, Valerie Wicks and Shelby Leighton, said the two workers were not available for interviews. Leighton said the parties could ask the Maine Supreme Judicial Court to decide the case, or they could pursue it in Cumberland County Superior Court, where the documents have been filed so far. The latter course could mean a decision in January or February, the attorney said.

“Despite initially providing its employees with $2 an hour in extra hazard pay in April and May 2020, and despite the record earnings of Whole Foods’ parent company Amazon during the pandemic, Whole Foods has refused to commit to paying Plaintiffs the $18 an hour minimum wage hazard pay passed by voters,” the motion says.

Horton provided a written statement though the attorneys.

“I’m glad the Court granted our motion to intervene today,” he said. “Now the workers who are meant to benefit from the hazard pay law will be heard in this case. We did this to represent ourselves and the many other essential workers who have continued to show up to work in-person throughout this pandemic. Portland’s voters said we should be paid, not just praised, for our extra work during these incredibly dangerous times. We agree.”

Whole Foods has not responded to questions about whether it will pay the $18 hazard wage. A shift leader at the Portland Whole Foods directed all questions to the grocer’s media team, which did not return an email Thursday evening.

Quincy Hentzel, the chamber’s president and CEO, said she is limiting her comments on the matter now that the case is before a judge. In addition to the chamber, the suit was filed on behalf of two Portland restaurants, Nosh and Slab; the Gritty McDuff’s brew pub; Play it Again Sports; and the Alliance for Addiction and Mental Health Services.

In court documents, the plaintiffs said the $18-an-hour wage could force Portland employers to lay off workers, cut services or even close. In a survey of more than 300 businesses, the chamber reported last month that 88 percent said the emergency wage provision would have a “negative” or “extremely negative” impact, and 70 percent said they would need to reduce staff or staff hours.

“However well-meaning, the unfortunate irony of the emergency wage provision is that the people it was meant to help, the essential workers who can’t work from home, who are showing up during this pandemic, will be the ones hurt the most as businesses struggle under its financial burden,” the chamber said when the lawsuit was filed.

People First Portland, the group that put the measure on the ballot, called the workers “courageous” in a statement Thursday.

“Thankfully, we have also heard from many for-profit and not-for-profit businesses who have agreed to pay the new hazard wage,” the statement said. “We thank and congratulate them for doing the right thing. Unfortunately, because of the City Council’s illegal refusal to enforce the law, we have also heard too many stories of businesses refusing to pay. This has left workers in the unenviable place of having to sue their employers in order to get the wages they are owed. It never should have been this way.”

The lawsuit would not effect the broader minimum wage increase approved by voters. That change will increase the rate from $12 an hour to $13 an hour in 2022. The wage will increase $1 per hour ever year until it hits $15 an hour in 2024.

As many as 23,500 Portland workers could see a wage increase under the new ordinance, including 14,000 workers making less than $15 an hour, according to the Maine Center for Economic Policy, a left-leaning research and advocacy group.