Pushing back on veto, farmworker advocates say Mills’ proposal scaled back labor rights

Supporters of a bill vetoed by Gov. Janet Mills that would have established a minimum wage for farmworkers say changes the governor wanted would have significantly scaled back existing labor rights and reduced farmworkers’ ability to recoup unpaid wages. 

Legislators will vote on whether or not to override that veto on Friday.

Proponents of the bill were deeply frustrated after the governor’s veto late last month, saying it was “absolutely ridiculous” for Mills to reject a measure she herself proposed. However, Mills said while she supports a minimum wage for agricultural workers, changes made to her bill by the Legislature left her with no choice but to oppose the measure. 

The governor’s veto hinged on the question of whether farmworkers should be able to directly sue their employer if they believe there is a violation of labor law (also known as a private right of action).

Mike Guare, an attorney in the farmworker unit of Pine Tree Legal Assistance, said all workers currently have a right of private action in Maine to enforce unpaid wages, citing a statute that says either the employee themselves or the Maine Department of Labor (DOL) can bring forward a legal complaint over unpaid wages or health benefits. 

A commission set up by the governor to provide recommendations for Mills’ farmworker bill — established after she vetoed another farmworker minimum wage measure last year — did not touch on the issue of a private right of action in its report in February.

Labor advocates call Gov. Mills’ veto of her own farmworker wage bill ‘an embarrassment’

But when the governor released the text of her bill in March, it stipulated that only the DOL had authority to bring an action against an employer that violated the proposed farmworker minimum wage statute. 

Guare said while there is some uncertainty over how exactly the law would have been interpreted, his reading of Mills’ bill is that farmworkers wouldn’t have had a private right of action if they were being paid the minimum wage of $14.15 an hour but would have retained a private right of action if they were making more than $14.15, but only for unpaid wages in excess of the minimum wage. So Guare said if the legislation had become law and a farmworker was making $15.15 an hour, they could only file a private lawsuit for the extra dollar in unpaid wages above the minimum wage.

But since most farmworkers make relatively close to the minimum wage, Guare said Mills’ bill would have curtailed farmworkers’ right to bring a private action against their employer for the bulk of their possible unpaid wages.

Claims that proposal would spur excessive suits by farmworkers

Workshopping the bill text, Democrats on the Legislature’s Labor and Housing Committee removed Mills’ restrictions on farmworkers’ private right of action.

The committee’s version of the bill ultimately passed both the Maine Senate and House of Representatives before Mills vetoed it. In her veto message, the governor argued that enforcement by the DOL would be sufficient and said she was concerned that allowing a private right of action for farmworkers would “result in litigation that would simply sap farmers of financial resources and cause them to fail.” 

In a statement, the Maine Potato Board — which rescinded its support for the bill once it contained a private right of action — also said that clause could have harmful impacts on farms.  

“The concerning part of this for the ag industry is when employers are found in court to be not liable, they are still responsible for their own legal representation,” assistant executive director Jeannie Tapley said. “Our concern lies primarily with employers having no recourse to get their legal fees paid for in the case they are not found liable.” 

Tapley also argued that allowing a private right of action would result in “undue litigation” against farms. 

However, Guare said farmworkers — many of whom are migrant laborers — typically only seek legal recourse as a last resort to address particularly poor labor conditions. 

Rep. Amy Roeder (D-Bangor), House chair of the Labor and Housing Committee, added that for farmworkers coming from other countries who might not have a lot of connections within Maine and may not speak English as a first language, accessing the legal system is likely to be challenging. 

“So the governor’s view of the state turning into this litigation-happy atmosphere where ag workers are bringing spurious lawsuits, it’s some weird dystopian fantasy that has no basis in reality or fact,” Roeder said. 

Roeder said Democrats on the Labor and Housing Committee didn’t want to take a right away from agricultural employees in order for them to gain access to minimum wage protections. 

Further, she pointed out that the bill Mills put forward already represented a significant compromise. The governor’s proposal didn’t include reforms that advocates have long pushed for such as overtime pay for farmworkers, union rights, or allowing unpaid 30-minute rest breaks every six hours. 

“The fact that we couldn’t even get the governor to sign her own bare bones, least-we-could-do bill just shows you how little the governor cares for agricultural workers in our state,” Roeder said. 

Mills’ office did not respond to a request for comment for this story. 

Questions about Dept. of Labor enforcement capacity

Arthur Phillips, a policy analyst with the Maine Center for Economic Policy who was part of the stakeholder commission that worked on recommendations for the bill, agreed with Roeder’s argument that advocates already gave up a lot in their attempt to get minimum wage protections for farmworkers. 

“That was a deeply compromised bill,” he said of Mills’ proposal.

Phillips pointed out that another issue with Mills’ insistence that only the DOL should be responsible for the farmworker minimum wage statute is that the department — by its own admission — has struggled with its capacity to enforce labor laws.  

In a report released in February, the DOL wrote that Maine employers faced average penalties of just 39 cents per wage and hour violation last year and could expect an investigation from the department once every 323 years. 

The fact that the DOL has just one wage and hour inspector for every 69,177 employees combined with the low average penalty assessed per violation means the department’s “deterrent effect has been non-existent in past years,” the agency wrote.   

The DOL did not respond to a request for comment about whether it believes it would have had the capacity to enforce the farmworker minimum wage statute.

Phillips emphasized that the department is doing the best it can given its capacity. But even though several bills were approved this session to improve the agency’s ability to enforce labor laws, he said it’s still important that farmworkers maintain access to the courts so they have another avenue of recourse.

“It is clear to me that DOL does not have the capacity that it should have to enforce the laws that we have on the books as it is,” Phillips said. 

Editor’s note: Maine Morning Star reporter AnnMarie Hilton contributed reporting to this story.