OXFORD — The Maine Attorney General’s Office has fielded at least four calls questioning if Ocean State Job Lot’s new temporary 2% surcharge, described as voluntary and funding a “bonus pool” for employees, is legal.

It is, according to Assistant Attorney General Linda Conti, if customers are told about it ahead of time and have the ability to opt out.

But while shopping on Saturday, Pamela DeCoteau said she questioned the extra charge at the register after an item for $29.99 rang up as $30.59.

“There were no signs whatsoever,” DeCoteau, of South Paris, said Wednesday. “I’m like, ‘That’s not the price.’ She said, ‘No, we have a 2% surcharge donation’ — she used the word donation — ‘that you have to pay.’ I’m like, ‘OK, wait a minute, I’ve done this long enough to know you can’t force a donation.'”

DeCoteau studied her receipt after walking out and only then saw a note that read: “A 2% surcharge was added to your purchase today. . . Store associates receive 100% of the bonus pool created by this surcharge, in addition to a $2/hour pay increase funded by the company. You may request a refund of the surcharge, but we hope you will take the opportunity to thank our associates for their efforts at this challenging time.”

On her bill, the surcharge added up to about $1.

“This has nothing to do with the money, this is 100% principle,” she said. “Had she asked me at the end, ‘Would you mind making a donation?’ I would have said, ‘Hit that button twice.'”

The company said in a statement late Wednesday that cashiers have been asked to mention the surcharge so customers can opt out, and “While that might not be happening 100% of the time, it is our intention.”

DeCoteau said she attempted to reach the Better Business Bureau, couldn’t get through, and instead called Ocean State Job Lot’s corporate office on Monday to say the charge ought to be broken out into a separate line item.

“They’re like, ‘We’ll take your suggestion, but we’re doing it the way we’re doing it, if you don’t like it, don’t shop with us,'” she said. “Some of the elderly people that I go shopping for, they can’t afford that extra dollar.”

Conti, who heads the Attorney General’s Office consumer protection division, said she’s discussed Ocean State Job Lot’s new surcharge with counterparts in other states.

“Would I prefer it to be an opt in? Yes, that would be better, but it’s not illegal to do it as an opt out,” she said. “We sort of agree that it’s a disclosure issue — they can do it, but they’ve got to disclose it, and I understood that they were allowing people who wanted to opt out to opt out.”

Maine consumer statute prohibits unfair and deceptive practices and disclosure is one key to making sure something is neither, Conti said.

“If it’s not clear, if somebody says it’s not clear, than the remedy would be for them to make it more clear, not stop doing it,” she added. “The consumers that have contacted us have confirmed there’s a sign at the checkout that explains this. Where and when and how the disclosure has to be made is really not written in stone. It has to be observable and knowable and understandable to the average consumer acting reasonable under the circumstances.”

Customers who run into issues with disclosure or not being able to opt out can contact the Attorney General’s Office consumer line at 1-800-436-2131.

Conti said she’s encountered the concept before, with companies adding fuel surcharges when gas prices were high or on “mail-in offers, ‘You’re going to be charged forever until you affirmatively cancel.’ This opt-out, this negative option, is done in other consumer transactions. That’s how we decide which ones are problematic.”

The retailer could always just straight raise its rates, she said. “Most people who, their costs go up, their costs go up and they have to increase prices.”

In Maine, the company has stores in Oxford, Belfast, Rockland, Falmouth, Bangor, Biddeford and Sanford.

Ocean State Job Lot said via a spokesman that all of the funds being raised in the surcharge are going to front-line associates, to be shared based on hours worked during the surcharge period, currently for one month through the end of April.

The company declined to say how much has been raised but noted annual sales for the privately-held business are typically $725 million.

“We’ve announced the surcharge through email, on our website, with in-store signage, over the stores’
announcement systems, on our register receipt and verbally with our cashiers highlighting it for
customers,” the statement said. “We think we’ve done a very thorough job with our communication. We are happy to refund the surcharge to any customer who chooses not to participate.”

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