Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Updated September 17, 2023: At 10:56 a.m. on Sunday morning, Governor Janet Mills lifted the state of emergency she declared on September 14. As a result, the $21/hr emergency wage is no longer in effect in the City of Portland. This temporary emergency minimum wage applied to all employers from Thursday at 11:45 a.m. through Sunday at 10:56 a.m. for any employee working in person at a physical workplace within the city limits of Portland.
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On September 14, 2023, Maine Governor Janet Mills declared a state of emergency due to Hurricane Lee’s anticipated landfall on the Pine Tree state. Although this declaration is a seemingly routine measure to ramp up natural disaster response preparedness, it has triggered a costly hazard pay measure for nearly all employers in Portland – Maine’s largest city. From September 14, 2023 until Maine’s governor ends the state of emergency, the new minimum wage in the City is $21.00 per hour.
As discussed in a prior article, Portland voters passed a referendum in the November 2020 election amending the City’s minimum wage ordinance to increase the minimum wage $1.00 per hour annually until reaching $15.00 per hour in 2024. Buried in that referendum was a provision to institute hazard pay of 1.5x the normal minimum wage when there is a declared emergency.
The intention of this hazard pay provision was to compensate employees for the perceived risk of working during the height of the COVID-19 pandemic. Because it has never been repealed, however, a statewide emergency order for events like a hurricane triggers the hazard pay provision.
Not only is the new minimum wage $21.00 per hour, but the emergency minimum wage for tipped worked rises to $10.50 per hour plus tips.
The Portland ordinance defines “Employer” as “[a]ny individual, group of individuals, partnership, association, corporation, business trust, or any other entity or group of persons or entities who employs or exercises control over the wages, hours, or working conditions of any Employee and who has a place of business within the City limits.” Similarly, “Employee” means “[a]ny person who performs work for an Employer for monetary compensation within the municipal limits of the City.”
Thus, nearly every employee performing work in Portland – including full-time, part-time, seasonal, and temporary workers – will be eligible for a “hazard minimum wage” of $21.00 per hour from September 14, 2023 until the end of the emergency, which could be a matter of a few days only or potentially months depending upon the severity of Hurricane Lee’s impact.
The hazard pay provision does not apply, however, “to work performed under a teleworking arrangement, as defined under 5 U.S.C. § 6501,1 allowing the Employee to work from home.” There are no other exemptions in the ordinance, so a covered employer seeking to avoid a hazard pay obligation for particular employees would presumably have to convert them to telework.
For now, employers should start preparing to adjust wages to comply with Portland’s minimum wage ordinance and its hazard pay provision. Violations of the ordinance could trigger civil liability under Maine’s state wage provisions, which permit recovery of treble damages and attorneys’ fees. Failure to comply can also result in the city manager ordering the payment of back wages plus a minimum fine of $100 per day an employer is out compliance.
1 5 U.S.C. § 6501 states, “The term ‘telework’ or ‘teleworking’ refers to a work flexibility arrangement under which an employee performs the duties and responsibilities of such employee’s position, and other authorized activities, from an approved worksite other than the location from which the employee would otherwise work.”