HARPSWELL, Maine — Brunswick and Harpswell are proposing higher fees for commercial shellfishing licenses in an effort to pre-empt possible legal action by the U.S. Department of Labor.
Although the proposed town ordinances would increase fees significantly, the cost will be offset if harvesters complete annual conservation activities, including shoreline clean-ups, shellfish surveys and trapping of green crabs.
Requiring licensed harvesters to work on specific conservation projects each year isn’t new for many municipalities. But the DOL has warned that the practice violates federal labor laws.
In 2013, a harvester in Waldoboro filed a complaint over mandatory conservation activities. A DOL investigation found the town violated the Fair Labor Standards Act because it required harvesters to participate in activities like river cleanups, which technically classified them as employees, although they were not paid minimum wage.
While activities directly related to clam flats, including seed propagation, were exempt from FLSA requirements, other services, such as picking up trash on the shoreline, were not, investigators found.
They also concluded that requiring those under age 16 to complete conservation work violated child labor laws.
Programs like shellfish conservation verge on becoming employment relationships when people lose their autonomy and are compelled to work at a specific time and place, Julie Rabinowitz of the Maine Department of Labor said this week.
“We’ve looked into this in the past and it looks like, in many cases, that the mandate goes beyond volunteering into a controlled situation,” Rabinowitz said.
The federal Department of Labor’s findings have led many towns to rethink their approaches to conservation work, according Denis-Marc Nault, municipal shellfish coordinator at Maine’s Department of Marine Resources.
“We were initially very concerned because this could have spelled the doom of any type of conservation activity,” Nault said. “These programs need that physical labor on the flats. If that stopped, what’s going to happen to these activities that are really helpful for managing those resources?”
The DOL has not replied to a September 2013 request from DMR to clarify which conservation activities are exempt under the FLSA, Nault said.
While some Down East towns are standing their ground and maintaining their conservation programs against possible DOL enforcement, others are changing their ordinances to make conservation work purely voluntary or, as is the case in Brunswick and Harpswell, exchanging labor for license fees.
In Harpswell, the Marine Resources Committee is proposing an ordinance amendment that would triple the licence fee, to $600. By participating in four conservation activities, however, harvesters can reduce the fee to the current $200.
“You can a) do your conservation time, or b) write a bigger check when you come and pick up your license,” said Darcie Couture, the town’s marine resource coordinator.
The proposed amendment is expected to go to voters at Harpswell’s annual town meeting in March.
Aside from providing legal protection, adding fees may also encourage harvesters who sometimes don’t attend regularly scheduled conservation dates to participate in the activities, Couture said.
Because harvesters are at risk of having their license reapplications rejected if they don’t meet their conservation obligations, the marine resources committee has in the past scheduled special days for stragglers, Couture said, giving the impression that some people are receiving special treatment.
Increasing the fees takes that out of the equation: if harvesters don’t want to participate in conservation work, they can just pay the higher fee.
“It gives everyone an incentive to get out there and do the conservation work they are supposed to be doing anyway, and it covers the town as far as liability issues because now they are not requiring people to do this uncompensated work,” she said.
Harpswell won’t put the new fees in place until 2016, allowing harvesters to build up enough conservation time over next season to receive the reduced license, Couture added.
Similar guidelines are being proposed in Brunswick, where harvesters are now required to accrue 20 credit hours of conservation work each year.
Under the proposed ordinance change, Brunswick would raise license fees from $300 to $500, but conservation credits, at $10 an hour, would reduce the cost, Marine Resource Officer Dan Devereaux said.
The Brunswick Marine Resources Committee intends to discuss the proposed ordinance at its Jan. 7 meeting and hopes to forward it to the Town Council in February.