An Act To Enhance Enforcement of Employment Laws
Maine Legislature, Session 129, LD 1693
Committee: Labor and Housing
Sponsors: JACKSON

Legislative Document
No. 1693
S.P. 558
In Senate, May 7, 2019
An Act To Enhance Enforcement of Employment Laws
Reference to the Committee on Labor and Housing suggested and ordered printed.
DAREK M. GRANT
Secretary of the Senate
Presented by President JACKSON of Aroostook.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  26 MRSA c. 7, sub-c. 5-C is enacted to read:
SUBCHAPTER 5-C
PRIVATE ENFORCEMENT OF EMPLOYMENT LAWS
§840-A.  Definitions
As used in this subchapter, unless the context otherwise indicates, the following 
terms have the following meanings.
1.  Aggrieved person.  "Aggrieved person" means any employee, prospective or 
former employee or person providing services for remuneration to another against whom 
one or more alleged violations of this chapter or of Title 5, chapter 337, subchapter 3 
were committed by an alleged violator, whether or not the person has received full or 
partial relief from the alleged violation and whether or not the person is employed by the 
violator at the time an action is filed, including a person who is not classified by an 
employer as an employee but who claims to be an employee and whose claims against the 
purported employer relate to the alleged misclassification.
2.  Public enforcement action.  "Public enforcement action" means a civil action 
brought by a relator under this subchapter intended to enforce protections enforceable by 
a responsible state official.
3.  Relator.  "Relator" means a whistleblower or a representative organization that 
acts as a plaintiff in a public enforcement action under this subchapter.
4.  Representative organization.  "Representative organization" means a nonprofit 
corporation or union that regularly assists in enforcement of this chapter or Title 5, 
chapter 337, subchapter 3 and has been selected by an aggrieved person, in writing on a 
form developed by the Attorney General, to initiate a public enforcement action on the 
aggrieved person's behalf.
5.  Responsible state official.  "Responsible state official" means a person authorized 
by law to enforce a provision of this chapter or of Title 5, chapter 337, subchapter 3, or to 
impose or seek penalties or other remedies for violations of those laws, and includes 
persons delegated to act on the responsible state official's behalf with respect to enforcing 
those laws, imposing or seeking penalties or other remedies for violations of those laws 
or receiving and disposing of notices pursuant to this subchapter.
6.  Whistleblower.  "Whistleblower" means an aggrieved person or a current or 
former employee, contractor, subcontractor or employee of such a contractor or 
subcontractor of an alleged violator with knowledge of the alleged violation of this 
chapter or of Title 5, chapter 337, subchapter 3 that is independent of and materially adds 
to any publicly disclosed information about the alleged violation.
§840-B.  Public enforcement action
1.  Initiation of action.  A relator, on behalf of the State and in the name of the State, 
may initiate a public enforcement action pursuant to the procedures and subject to the 
limitations specified in section 840-F.  A relator may seek injunctive or declaratory relief 
that the State would be entitled to seek.  A public enforcement action may be brought in 
any court of competent jurisdiction for any county in which the alleged conduct occurred 
and may allege multiple violations that have affected different parties aggrieved by the 
same defendant.
2.  Penalties.  With respect to public enforcement actions brought pursuant to this 
subchapter:
A.  If the State has intervened in the public enforcement action, the State may assess 
penalties on the defendant;
B.  If the State has not intervened in the public enforcement action but a responsible 
state official is authorized to assess a civil penalty, the court shall assess an 
equivalent civil penalty;
C.  If state law creates a duty owing to an employee but no civil penalty is 
specifically provided, the court shall assess a civil penalty of $250 for each aggrieved 
person for each 2-week period in which the violation occurred;
D.  The court shall award a penalty for each person aggrieved by each violation 
during the relevant time period; and
E.  The court may award a lesser amount of civil penalties than those specified if, 
based on the facts and circumstances of the particular case, to do otherwise would 
result in an award that is unjust, arbitrary and oppressive, or confiscatory.
3.  Attorney's fees; costs.  A relator that prevails in a public enforcement action, 
including by recovering a civil penalty or obtaining declaratory or injunctive relief 
pursuant to a court decision or settlement, must be awarded reasonable attorney's fees and 
costs.
4.  Distribution of amounts recovered.  Civil penalties recovered under this section 
pursuant to a court decision or settlement must be distributed as follows:
A.  If the State has not intervened, the relator is entitled to 30% of the amount 
recovered and the remaining 70% of the proceeds of the action or settlement must be 
returned to the State; and
B.  If the State has intervened, the relator is entitled to 20% of the amount recovered 
and the remaining 80% of the proceeds of the action or settlement must be returned to 
the State.
The relator shall equitably distribute the share of penalties due the relator among the 
persons aggrieved by the practices complained of in the public enforcement action. The 
relator shall submit a distribution summary to the State, which may order a different 
distribution within 60 days after submission of the distribution summary, as long as the 
relator receives an award that reflects the burdens and risks assumed by the relator in 
prosecuting the action, including any costs incurred by a representative organization that 
serves as a relator.
5.  Private agreement may not impair right.  The right to bring a public 
enforcement action under this section may not be impaired by any private agreement.
6.  Commencement of action; statute of limitations.  Notwithstanding any other 
provision of law to the contrary, a public enforcement action must be commenced within 
the same period of time that the applicable responsible state official has to bring an action 
under the applicable statute.  The statute of limitations for bringing a public enforcement 
action is tolled from the date a relator files a notice pursuant to section 840-F or the date 
the State commences an investigation, whichever is earlier.
7.  Private action based on same injury.  Nothing in this section limits an aggrieved 
party's right to pursue a private action based on the same injury.
§840-C.  Prohibition on certain public enforcement actions by relators
Notwithstanding the provisions of section 840-B, a public enforcement action may 
not be brought by a relator:
1.  Action by State.  If the State, on the same facts and theories, cites a person within 
the time periods set forth in section 840-F for a violation of the same section or sections 
of the laws under which the relator is attempting to recover a civil penalty or other 
remedy on behalf of aggrieved employees or others, or files a proceeding to assess 
penalties or enforce other remedies available to the State, as long as the State serves 
notice on the relator pursuant to section 840-F.  Actions brought by the State preclude 
subsequent state enforcement efforts based on the same facts and law, whether brought by 
the State or by a relator under this subchapter; however, nothing in this section limits the 
State's right to seek restitution for aggrieved parties as part of a public enforcement action 
in which it has intervened, and the State shall distribute any amounts it recovers as 
restitution in the same manner in which it distributes restitution proceeds in other 
enforcement actions initiated by the State;
2.  Posting, filing, reporting requirements.  For any violation of a posting, notice, 
agency reporting or filing requirement, except when the filing or reporting requirement 
involves mandatory payroll or injury reporting; or
3.  Minor variations in legal name or address.  If the violation is for minor 
variations in the legal name or address of the employer in a wage statement required 
under section 665 as long as the variations do not impair an employee's ability to 
promptly and easily identify the employer.
§840-D.  Public access to information
1.  Publicly available database.  The Attorney General shall establish and maintain a 
publicly available database of public enforcement actions brought pursuant to this 
subchapter that includes the names of the parties, the disposition and any other 
information that the Attorney General by rule prescribes.
2.  Exceptions.  Notwithstanding subsection 1:
A.  At the request of an aggrieved party, that aggrieved party's name and personally 
identifying information must be kept confidential and may not be included in the 
publicly available database; and
B.  The Attorney General may redact from the publicly available database certain 
information associated with a public enforcement action at the request of a relator.
§840-E.  Retaliation prohibited
1.  Prohibition.  A person may not retaliate, or threaten to retaliate, in any manner 
against an aggrieved person or whistleblower because:
A.  The aggrieved person or whistleblower has brought a public enforcement action;
B.  The aggrieved person or whistleblower has cooperated with a relator in a public 
enforcement action; or
C.  The person believes that the aggrieved person or whistleblower may bring a 
public enforcement action or cooperate with a public enforcement action.
2.  Remedy.  A person aggrieved by a violation of this section may bring an action 
seeking compensatory and punitive damages or equitable relief, including restraint of 
prohibited acts, restitution of past and future wages or benefits, reinstatement, costs, 
reasonable attorney's fees and other appropriate relief.
§840-F.  Procedure
1.  Required notice; filing fee.  A public enforcement action under this subchapter 
may not be commenced prior to 30 days after written notice of the claim has been 
submitted by the relator to the responsible state official and to the Attorney General.  If 
more than one responsible state official is charged with enforcement of laws at issue in 
the prospective action, the relator shall provide notice under this subsection to each 
responsible state official.  The relator shall submit a filing fee of $75, and the time 
periods set forth in this section begin when both the notice and filing fee have been 
submitted.  The Attorney General may waive the filing fee in accordance with rules 
adopted by the Attorney General.
2.  Contents of notice.  The notice under subsection 1, which must be construed in 
the light most favorable to the relator, must include:
A.  The name, address and contact information of the alleged violator;
B.  The name and contact information of the relator;
C.  If the relator has retained legal counsel, the name, address and contact information 
of the relator's legal counsel; and 
D.  A concise statement of the underlying claim reasonably calculated to apprise the 
responsible state official and the Attorney General of the substance and nature of the 
claim.
3.  Amended notice.  If within 30 days of the date upon which a relator files notice in 
accordance with subsection 1 the Attorney General determines that the notice is not in 
compliance with this section or the rules adopted pursuant to this section, the Attorney 
General shall allow the relator to furnish an amended notice.  Such a determination must 
specify the deficiencies in the notice.  If the Attorney General does not make such a 
determination within 30 days and provide the relator with an opportunity to amend the 
notice, the notice is deemed to comply with this section.  The relator has 30 days from 
receiving a determination by the Attorney General of noncompliance to amend the notice.  
The amended notice will relate back to the original notice.
4.  Investigation; decision regarding action.  If a responsible state official who 
receives notice under subsection 1 decides to investigate the alleged violation, the 
responsible state official shall notify the relator of that decision within 30 calendar days 
of the date of the notice.  Within 120 calendar days of notifying the relator of that 
decision, the responsible state official may investigate the alleged violation and take any 
appropriate action.  If the responsible state official, during the course of that 
investigation, determines that additional time is necessary to complete the investigation, 
the responsible state official may extend the time by not more than 60 calendar days and 
shall issue a notice of the extension.  If the responsible state official determines that no 
action pursuant to the investigation will be taken, the responsible state official shall notify 
the relator of that decision by certified mail within 5 business days of the determination.
5.  Commencement of public enforcement action.  Upon the receipt of notice under 
subsection 4 from a responsible state official that no action pursuant to the investigation 
will be taken, or if the responsible state official fails to provide timely or any notification 
or does not take action within the time limits set forth in this section, the relator may 
commence a public enforcement action.
6.  Objection to relator's counsel.  If the responsible state official does not object to 
the filing of a public enforcement action pursuant to this section but objects to the State 
being represented by a particular attorney proposed by the relator, the responsible state 
official may, within the time limits set forth in subsection 4, file that objection with the 
Attorney General.  Upon finding, after notice and hearing, that, based on the attorney's 
past conduct while representing clients, the attorney does not meet the required 
professional standards of representatives or fails to zealously pursue the remedies 
available under this subchapter, the Attorney General may order that the public 
enforcement action may not be filed by the attorney on behalf of the relator.  The statute 
of limitations is tolled from the time the responsible state official files the objection until 
the Attorney General issues an order or the time for doing so expires.
7.  Intervention by State.  Within 30 days after the filing of a public enforcement 
action, the State may intervene as of right and proceed with any and all claims in the 
action.  After the expiration of the 30-day period, the State may intervene in the public 
enforcement action for good cause shown, as determined by the court.
A.  If the State intervenes in a public enforcement action:
(1)  The State has primary responsibility for prosecuting the action and is not 
bound by an act of the relator bringing the action;
(2)  The relator remains a party to the action;
(3)  The State may move to dismiss or settle the action after the relator has been 
notified of the filing of the motion and has been provided with an opportunity to 
be heard and the court determines that such dismissal or settlement is fair, 
adequate, reasonable and in the public interest; and
(4)  Any disposition by the State must provide fair compensation for the 
attorney's fees and costs expended on behalf of the relator in instituting the 
action.
B.  If the State does not intervene in a public enforcement action, the relator has the 
right to conduct the action subject to the following limitations.
(1)  The court must review and approve any settlement of any action filed 
pursuant to this subchapter.  The proposed settlement must be submitted to the 
responsible state official and to the Attorney General at the same time that it is 
submitted to the court.  The court may approve a settlement of the action only 
upon a determination that the settlement or voluntary dismissal is fair, adequate, 
reasonable and in the public interest.  If the parties reach a settlement after the 
relator has provided notice pursuant to this subchapter but prior to the action 
being filed in court, the responsible state official shall review the proposed 
settlement.  The responsible state official shall approve the settlement if the 
responsible state official determines it is fair, adequate, reasonable and in the 
public interest.
(2)  If the State requests, it must be served with copies of all pleadings filed in the 
action and must be supplied with copies of all deposition transcripts.  The State is 
responsible for costs associated with service of requested pleadings and 
deposition transcripts.
(3)  The State may file, at any time, information or advice with the court as 
amicus curiae concerning the action.
8.  Prompt trial.  A public enforcement action must be tried promptly, without 
regard to concurrent adjudication of private claims.
9.  Not subject to rules governing class action suits.  A public enforcement action 
is not required to meet the requirements governing class action suits in the Maine Rules 
of Civil Procedure, Rule 23.
10.  Pretrial discovery.  The rules governing pretrial discovery in a public 
enforcement action are the same as the rules applicable in other civil actions.  A special 
showing of merit or other additional requirement may not be imposed on a relator's 
discovery rights in a public enforcement action.
11.  Action based on same facts.  If a person brings a public enforcement action, 
another person may not bring a related public enforcement action based on the same facts 
unless the court determines that the previously filed public enforcement action has not 
been diligently prosecuted.
§840-G.  Community Outreach and Labor Education Fund
1.  Establishment.  The Community Outreach and Labor Education Fund, referred to 
in this section as "the fund," is established as a nonlapsing fund administered by the 
Department of Labor.  Funds in the fund not spent in any fiscal year remain in the fund to 
be used for the purposes of this section.  Any interest earned by the fund must be credited 
to the fund. All money in the fund is appropriated continuously for the purpose of 
awarding grants as provided in subsection 3.
2.  Deposits.  Of the funds collected by the State pursuant to section 840-B, 
subsection 4, 25% must be deposited in the fund.
3.  Grants.  The Department of Labor shall provide grants from the fund to nonprofit 
organizations to fund outreach, education and technical assistance to workers in the State 
pertaining to employee rights in the workplace.  Grants provided under this subsection 
may be used for activities to assist workers in enforcing employment rights, including 
outreach, community-based education events, training materials, technical assistance, 
counseling, research and referral services.  When considering applications for grants, the 
department shall give priority to projects that provide services to especially vulnerable 
workers.
4.  Rules.  The Department of Labor shall adopt rules to implement this section.  
Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, 
chapter 375, subchapter 2-A.
§840-H.  Construction
This subchapter must be liberally construed in light of its remedial purposes to 
expand the enforcement of state law protecting employees.
SUMMARY
This bill authorizes private persons, acting in the public interest, to enforce the laws 
governing employment practices and prohibiting unfair discrimination in the workplace.
Under this bill:
1.  Private persons or whistleblowers, acting as relators, may bring public 
enforcement actions of employment laws on behalf of the State;
2.  Civic organizations may assist aggrieved persons in reporting violations of 
employment laws; and
3.  Persons who are injured by violations of employment laws are protected from 
retaliation.