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Portland, Maine – photo by Ramona du Houx

By Ramona du Houx

February 2, 2021

On Monday, February 1, 2021, Portland voters scored a victory when Justice Thomas Warren of the Cumberland County Superior Court ruled that hazard pay for essential workers, which Portland voters overwhelmingly passed in November 2020, was a valid exercise of the citizen initiative power granted in the Maine Constitution and in the Portland City Code.

In its motion asking the court to throw out the essential worker hazard pay, the Chamber of Commerce had challenged the validity of the entire citizen initiative process by asking the Court to rule that voters can only pass initiatives on a small list of relatively unimportant subjects. And shockingly, at oral argument on January 20, 2021, the City’s lawyer refused to defend Portland voters’ citizen initiative rights and argued that the hazard pay provision should be invalidated.

“I have continued to report to work in person during this pandemic, including during these past few months when infection rates have soared in Portland. I am glad the Court rejected the un-democratic argument that Portland voters like me have no say over the conditions for workers in their city,” said Whole Foods worker Caleb Horton.

The Court rejected the Chamber’s anti-democratic reading of the Maine Constitution, which could have had the effect of invalidating citizen initiatives passed by voters in Portland and cities around the state in the November 2020 election (and even in years past). Fortunately, Justice Warren rejected both the Chamber and the City’s request that he strike down the hazard pay provision in its entirety. 

Jeff works in the service industry in Maine.

“We are optimistic that the Law Court will rule that the hazard pay provision took effect in December 2020,” said Valerie Wicks, attorney for the workers, “especially because the ballot question put to voters indicated that the hazard pay would take effect in December 2020, during the pandemic.”

The Court also held, against the clear intent of Portland voters, that the hazard pay provision does not take effect until January 1, 2022. The Whole Foods workers who intervened to defend the hazard pay provision are appealing that ruling to the Law Court, which will have the final say on the meaning of the initiative without deference to the trial court’s decision. 

“Nearly every week, I learn that one of my coworkers has tested positive for COVID-19. 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. I hope that a decision by the Law Court will finally make Whole Foods pay us the compensation we deserve,” said Whole Foods worker Mario Roberge-Reyes.

The appeal will be filed by February 8, 2021.

“We are pleased with the Court’s well-reasoned ruling that municipal voters have the authority to pass citizen initiatives on important workers’ rights issues like the local minimum wage,” said Shelby Leighton, attorney for the workers. “We will be appealing to the Law Court on the timing issue so that in-person, essential workers get hazard pay protections now, consistent with the will of the voters that they be compensated, and not just praised, for their increasingly dangerous work during this pandemic.”

Attorneys Shelby H. Leighton, Valerie Z. Wicks, and David G. Webbert of the law firm Johnson, Webbert & Garvan represent the workers in this lawsuit. Johnson, Webbert & Garvan, LLP, has offices in Portland and Augusta and is the leading workers’ and civil rights law firm in Northern New England.