PORTLAND, Maine — Thom Sambrook was manning the express lane at Hannaford last week when a customer unloaded onto the belt “a huge load of groceries” — way more than the store’s 14-item limit.
Sambrook looked up from the belt and also saw the customer wasn’t wearing a face covering. He reminded the man of the supermarket’s policy, which requires every shopper to wear a mask. But he didn’t get very far with the customer.
“I don’t have to wear one,” the customer snapped back at him. “You’ll survive.”
Sambrook, a 71-year-old with chronic pulmonary disease and a triple-bypass surgery in his past, is at higher risk for coronavirus in this pandemic. He’s kept his part-time job at Hannaford, where he’s worked for five years, because it helps to supplement his Social Security income to pay for skyrocketing rent payments in Portland, his home of 34 years.
Sambrook relayed the exchange with the customer to his supervisor, who acknowledged that while the store requires shoppers to wear masks, there’s no real way to enforce the mandate. Not every shopper abides by the rule, leaving workers in difficult positions.
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But for vulnerable frontline workers like Sambrook, these situations aren’t just difficult positions — they’re occupational hazards in a time when exposure to the coronavirus can ultimately lead to death.
Early in the pandemic, Hannaford and other supermarkets incentivized workers with an additional $2 per hour — a kind of hazard pay. But those wage increases expired this summer, even as new cases of the coronavirus continue to set daily records in Maine.
Large supermarkets like Hannaford and its parent company, Ahold Delhaize, have steadily increased profits during the pandemic. Delhaize has diverted its profits to increase payouts to shareholders by introducing ambitious stock buyback programs.
But soon Hannaford and other businesses in Portland will be required to compensate wage-workers for the extra risk they’re assuming during this pandemic after voters here approved a measure earlier this month to boost the minimum wage 1.5 times for those working in-person jobs during states of emergency, such as a pandemic. Portland voters also approved a referendum to bump the minimum wage there to $15 an hour by 2024.
If applied today, the measures would increase the base wage for Portland workers to $18 per hour.
It would provide more financial stability for Sambrook, who earns $14.35 an hour — the same wage he’s made since before the first outbreak.
But while most Portland voters assumed the implementation of the city’s wage increases would take effect 30 days after the election — the standard procedure for voter initiatives — city councilors have delayed the measures until Jan. 1, 2022, following multiple closed-door sessions totaling nearly three hours with the city’s lawyers.
How they arrived at that ruling isn’t obvious.
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The new wage measure effectively strikes key sections of Portland’s existing minimum-wage ordinance and replaces them with language from the voters, Mayor Kate Snyder said of the city’s interpretation of the referendum.
The existing minimum-wage rate provision in Section B of the city’s ordinance now “begins by saying on Jan. 1, 2022, the minimum wage rate will be $13 an hour,” according to Snyder.
In Section G of the city’s ordinance, the new language reads, “the effective Minimum Wage rate established by this ordinance shall be calculated as 1.5 times the regular minimum wage rate.”
There’s wiggle room to interpret when and how the ordinance should be amended.
It might seem like semantics — and even Snyder concedes that the intent of the voters does not align with the city’s interpretation of the language. But she said they can’t “fix the typo,” and it will delay implementation of the wage increase for at least another full year.
Lawyers have been split on the issue. The Portland law firm Preti Flaherty supported the language of the ordinance that appeared on the ballot, but recognized that some employees and their attorneys will likely file suit under a different interpretation.
Shelby Leighton, a Portland-based labor lawyer with the firm Johnson, Webbert and Young, said that employers who rely on the city’s interpretation of the ordinance and fail to pay the hazard pay on Dec. 5 take a “significant risk.”
“At best, the city’s argument is that the new ordinance can be read to not create a city minimum wage until 2022,” Leighton said. “But that is not the only reading of the ordinance, or even the most reasonable. When an ordinance can be read multiple ways, courts will look at the intent behind it, which supports immediate implementation.”
Workers are seeking to understand their rights if employers don’t pay them appropriately, said Leighton, who sits on the board of the Southern Maine Workers’ Center, a Portland-based labor group. If employers follow the city’s interpretation and withhold hazard pay, litigation seems likely, she said. But if a court rejects the city’s interpretation of the ordinance, any employer who hasn’t complied may also be responsible for damages and attorney fees on top of unpaid back wages, she added.
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The legal limbo could add tension to the pandemic-induced hardships.
Snyder too expects to see litigation of some kind — and she said a lawsuit was likely no matter how the city ruled on the issue.
The mayor’s office has received a flood of emails on the issue — business owners seeking clarity, lawyers offering advice, middle-of-the-roaders pushing incrementalism and “a lot of vitriol” over the decision to delay.
But Snyder rejects the assertion by some that the city’s lawyers interpreted the ordinance the way they did because they felt it would be hard on businesses. She called it “heartbreaking” to be accused of standing in the way of democracy.
“I’ve talked with several lawyers who said anytime you’re looking to have the law defend your position, you can do that,” Snyder said. “But I swear up and down on a stack of bibles that no one from the City Council was looking for a particular outcome” from the city’s lawyers.
Sambrook said the decision shook his faith in municipal government.
“Evidently the voters’ opinions don’t really count for a hell of a lot,” said the Hannaford worker, one of 25,210 voters who favored the increase.
There’s an effort in the works to amend or overturn the wage measure on the June ballot. If those efforts were successful, it would kneecap the wage increase before it could be applied in 2022.
But Snyder doesn’t think that’s a good idea.
“I’m not sure it’s a prudent course of action for the city council to do something like that, because I respect the will of the voters and they voted on the language in this ordinance,” the mayor said. “We’ve got a policy that the City Council didn’t make that the city is doing its best to implement. I care deeply about that.”
Correction: An earlier version of this article overstated Sambrook’s hourly wage.