On January 11, 2024, Maine Governor Janet Mills declared a state of civil emergency for coastal counties in Maine impacted by flooding caused by a storm earlier in the week. The state of emergency covers eight counties, including Cumberland County – Maine’s most populous county and the home to the state’s largest city of Portland.
Although the declaration is meant to mobilize resources to assist with recovery effects after the storm, it still triggers a costly hazard pay measure for nearly every employer in Portland due to the city’s broad minimum wage ordinance. Effective 12:15 p.m. (eastern) on January 11, 2024 until Maine’s governor ends the state of emergency, the new minimum wage in the City is $22.50 per hour. The governor’s declaration states that the State of Civil Emergency “will last for one week, and the governor will continue to evaluate the necessity of it on a day-to-day basis.”
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 “if such emergency proclamation is geographically applicable to the Employee’s workplace.”
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 Because it has never been repealed, however, a statewide emergency order for events like a hurricane or snowstorm triggers the hazard pay provision.
This is not the first time a weather-related emergency declaration has triggered Portland’s hazard pay requirement. In September of 2023, a state of emergency due to Hurricane Lee’s anticipated landfall, which never actually materialized in Portland, caused the minimum wage to jump from $14.00 per hour to $21.00 per hour. Although no significant adverse weather occurred in Portland during that hazard pay period, the Portland City Council never repealed or modified the City’s minimum wage ordinance to excuse employers from the hazard pay requirement when a hazard does not actually develop.
Because Portland’s base minimum wage rose to $15.00 per hour on January 1, 2024, this means that not only is the new emergency minimum wage $22.50 per hour, but the emergency minimum wage for tipped worked rises to $11.25 per hour plus tips. The hazard pay also impacts the regular rate for overtime calculation purposes such that an employer must now pay overtime at the rate of $33.75 per hour during the declared emergency.
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 $22.50 per hour from January 11, 2024 until the end of the emergency, which Gov. Mills has indicated will last for at least one week.
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.
Footnotes
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.”
