A Superior Court justice said Wednesday he will rule soon on the legality of a new Portland ordinance that requires hazard pay for minimum wage workers during declared emergencies.

But Justice Thomas Warren also said he expects the case to be appealed to the Maine Supreme Judicial Court no matter what he decides.

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.

Both supporters and opponents believed the ordinance would 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. Those conflicting interpretations left Portland employers to decide whether to start paying their employees $18 an hour last month 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 chamber asked the judge to either throw out that provision entirely or rule that it doesn’t take effect for another year. 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.

Two Whole Foods workers intervened in the lawsuit and asked the judge to uphold the ordinance immediately. They said minimum wage employees who cannot work from home during a pandemic should be paid extra for the risks they are taking during the pandemic. Frontline workers who would qualify have said the extra money would make a difference to their financial security at an especially stressful time.


Warren heard oral arguments in the case Wednesday.

The chamber has argued that voters do not have the power under the Maine Constitution or existing Portland ordinances to enact a citizen referendum on the hazard pay provision.

“This case is not about whether the court thinks the emergency provision is a good idea or a bad idea or anything in between,” said attorney John Aromando, who is representing the chamber and other plaintiffs, “The question for the court is whether municipal voters have, with respect to the initiative, exceeded their constitutionally derived authority.”

The city focused on defending its authority to set its own minimum wage and to enact special provisions during a state of emergency. Dawn Harmon, a private attorney who argued on behalf of the city, also said the hazard pay should not take effect until January 2022.

But the city did not take a clear position about the limits of citizen initiatives in its written briefs or during the hearing. Warren pressed Harmon on that question during the hearing.

“I do think that under the Constitution, the citizens’ powers to initiative a referendum of this nature is certainly limited,” she said.


The workers argued that voters do have the power to create an emergency provision like this one, and the hazard pay provision should have taken effect shortly after the election as most people expected. Their attorneys also suggested that striking down this provision could have an impact on other ordinances passed by citizen referendum.

“By asking the court to invalidate the hazard pay provision, plaintiffs are swimming against the tide. … The purpose of citizen initiatives is to encourage participatory democracy,” attorney Shelby Leighton said. “Plaintiffs are asking this court to undermine that important purpose by taking a hatchet to the entire system of municipal direct democracy and taking out any number of citizen initiatives with it, all so they can override a law that was resoundingly approved by Portland voters.”

Warren said he would try to issue an order by the end of the month, but also acknowledged that the case would likely continue to the Maine Supreme Judicial Court, no matter how he rules.

“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.

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