Judge upholds Portland hazard pay but rules it’s not effective until 2022

Portland employers would not need to start paying time-and-a-half to minimum wage workers during declared emergencies until next year under a Superior Court ruling, but attorneys for two workers say they plan to appeal the decision to Maine’s highest court.

Superior Court Justice Thomas Warren ruled Monday that the new hazard pay provision approved by Portland voters is valid. He also decided it does not take effect until Jan. 1, 2022.

The ruling is not an outright victory for the Portland Regional Chamber of Commerce, which asked the court to strike down the ordinance entirely or delay its effective date. But it is also not a complete win for workers who defended the ordinance and who would make $18 an hour during the pandemic if the rule took immediate effect. The city did not take a firm position on the legality of the ordinance, which was the result of a citizen initiative, but said it should not take effect until next year because of the way it was written.

The legal battle will continue, however. During a hearing on the case last month, Warren acknowledged the case would go to to the Maine Supreme Judicial Court no matter how he ruled.

“I also recognize that my decision is an intermediate stop on a trip to the Law Court, which in a case like this is going to have the final word,” Warren said.

Wednesday evening, lawyers representing two Whole Foods workers who intervened in the case hailed the court’s decision to uphold the hazard pay ordinance. But, bearing out Warren’s prediction, they said the judge’s ruling on the effective date would be appealed.

Lawyer Shelby Leighton said the appeal would seek to make sure that “in-person, essential workers get hazard pay protections now” and that voters wanted those workers “compensated, and not just praised, for their increasingly dangerous work during this pandemic.”

Quincy Hentzel, the chamber’s CEO, said Monday afternoon that she had not yet reviewed the ruling or spoken with the five employers who joined as plaintiffs.

“We will review it carefully, and then make our decisions about next steps,” Hentzel wrote in an email.

One of the workers who intervened in the suit said he hopes the Law Court “will finally make Whole Foods pay us the compensation we deserve.”

“Nearly every week, I learn that one of my co-workers has tested positive for COVID-19,” Mario Roberge-Reyes said in a statement released by his lawyers. “But Whole Foods – part of one of the richest companies in the world – does not think that risk to its workers’ health is worth an extra few dollars an hour.”

Portland’s attorney has given the opinion that the minimum wage ordinance does not apply to city workers, since city code prohibits citizen referendums or initiatives from affecting hourly wages of city employees. Warren said that code was not enough reason to invalidate the entire ordinance, but he did not consider that issue in detail.

A Portland spokeswoman declined to comment on the ruling Monday beyond reiterating the city’s position that the ordinance does not apply to wages of city employees.

More than 60 percent of voters in November supported a minimum wage proposal that will gradually increase that rate from $12 to $15 an hour by 2025. That initiative also included a provision that increases the minimum wage by 50 percent for people who report to Portland workplaces during declared emergencies, such as the ongoing statewide coronavirus emergency. Right now, those workers would receive at least $18 an hour under the new rule.

Before the referendum, both supporters and opponents accepted that the hazard pay section of the ordinance was meant to take effect in December. But after the election, city officials said that provision would not kick in until January 2022, when the minimum wage itself starts to increase.

The conflicting interpretations left Portland employers to decide whether to start paying their employees $18 an hour last year or risk being sued by their workers. They have taken different approaches, some giving raises and others keeping wages where they were.

Meanwhile, the Portland Regional Chamber of Commerce sued the city to block the hazard pay provision. The plaintiffs also include 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. They have said the $18-an-hour wage would force Portland employers to lay off workers, cut services or even close.

Roberge-Reyes and Caleb Horton, who both work at Whole Foods in Portland, intervened in the lawsuit and asked the judge to uphold the ordinance immediately. They said employees who cannot work from home should be paid extra for the risks they are taking during the pandemic. Front-line workers who would qualify have said the extra money would make a difference to their financial security at an especially stressful time.

David Turin, the owner of David’s Restaurant in Monument Square in Portland, plans to continue paying the higher wage despite the court’s ruling.

“I’m happy to pay it,” Turin said. He said his restaurant business is down sharply compared to before the pandemic, but he is surviving on federal and state grants and the patronage of loyal customers.

“I’m delighted to pay that grant money to my employees,” he said.

Restaurant employees aren’t usually well-paid, Turin said, and he can’t see cutting their pay in the middle of the pandemic, especially if the ruling is appealed.

Some employers fear they could be forced to pay back wages and penalties if they don’t pay the hazard wage and it is ultimately upheld in court.

Turin supports a $15 minimum wage and feels it’s “absolutely ridiculous” lawmakers haven’t addressed the issue for decades.

“I’m irritated that we had to go to the stage of a referendum (for higher wages), but you can’t blame people for voting for it,” he said. “The whole pandemic has uncovered a lot of flaws in the operations of our government and inequities in our pay.”