An Act To Enhance Enforcement of Employment Laws
Maine Legislature, Session 130, LD 1711
Committee: Labor and Housing
Sponsors: JACKSON, ROEDER, DAUGHTRY, HICKMAN, MIRAMANT, VITELLI, CUDDY, DUNPHY, GERE, TALBOT ROSS
Amends: 5 MRSA §191, 5 MRSA §192

Legislative Document
No. 1711
S.P. 525
In Senate, May 19, 2021
An Act To Enhance Enforcement of Employment Laws
Received by the Secretary of the Senate on May 17, 2021.  Referred to the Committee on 
Labor and Housing pursuant to Joint Rule 308.2 and ordered printed.
DAREK M. GRANT
Secretary of the Senate
Presented by President JACKSON of Aroostook.
Cosponsored by Representative ROEDER of Bangor and
Senators: DAUGHTRY of Cumberland, HICKMAN of Kennebec, MIRAMANT of Knox, 
VITELLI of Sagadahoc, Representatives: CUDDY of Winterport, DUNPHY of Old Town, 
GERE of Kennebunkport, TALBOT ROSS of Portland.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  5 MRSA §191, sub-§3, as enacted by PL 2003, c. 510, Pt. B, §2 and affected 
by c. 599, §11, is amended to read:
3.  Representation by Attorney General, deputies, assistants and staff attorneys.  
The Except as provided in Title 26, chapter 7, subchapter 5-C, the Attorney General or a 
deputy, assistant or staff attorney shall appear for the State, the head of any state 
department, the head of any state institution and agencies of the State in all civil actions 
and proceedings in which the State is a party or interested, or in which the official acts and 
doings of the officers are called into question, in all the courts of the State and in those 
actions and proceedings before any other tribunal when requested by the Governor or by 
the Legislature or either House of the Legislature.  All Except as provided in Title 26, 
chapter 7, subchapter 5-C, all such actions and proceedings must be prosecuted or defended 
by the Attorney General or under the Attorney General's direction.
A.  Writs, summonses or other processes served upon those officers must be transmitted 
by them to the Attorney General.
B.  All legal services required by those officers, boards and commissions in matters 
relating to their official duties must be rendered by the Attorney General or under the 
Attorney General's direction.  The officers or agencies of the State may not act at the 
expense of the State as counsel, nor employ private counsel except upon prior written 
approval of the Attorney General.  In all instances where the Legislature has authorized 
an office or an agency of the State to employ private counsel, the Attorney General's 
written approval is required as a condition precedent to the employment.
Sec. 2.  5 MRSA §191, sub-§4, ¶B, as enacted by PL 2003, c. 510, Pt. B, §2 and 
affected by c. 599, §11, is amended to read:
B.  For certificate that any corporation has ceased to transact business and is excused 
from filing annual returns, as authorized in Title 13‑C, section 1621, subsection 4, $5.; 
and
Sec. 3.  5 MRSA §191, sub-§4, ¶C is enacted to read:
C.  For a private enforcement action brought pursuant to Title 26, chapter 7, subchapter 
5-C, $75.
Sec. 4.  5 MRSA §192, as amended by PL 1973, c. 567, §20, is further amended to 
read:
§192.  Prosecution of all claims for State
All Except as provided in Title 26, chapter 7, subchapter 5-C, all civil actions to recover 
money for the State shall must be brought by the Attorney General or by the district attorney 
in the name of the State.  The Attorney General shall appear before the departments and 
tribunals of the United States and the committees of Congress to prosecute all claims of the 
State against the United States.
Sec. 5.  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.  Private enforcement action.  "Private enforcement action" means a civil action 
brought by a whistleblower under this subchapter to enforce a provision of this chapter or 
of Title 5, chapter 337, subchapter 3.
2.  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.
3.  Responsible state official.  "Responsible state official" means the Commissioner 
of Labor or the Executive Director of the Maine Human Rights Commission described in 
Title 5, chapter 337, subchapter 2.
4.  Whistleblower.  "Whistleblower" means a current or former employee, contractor 
or subcontractor or employee of such a contractor or subcontractor of an alleged violator 
of this chapter or Title 5, chapter 337, subchapter 3 and includes a representative 
organization selected by a whistleblower under section 840-B.
§840-B.  Private enforcement action
A whistleblower, on behalf of the State and in the name of the State, may initiate a 
private enforcement action pursuant to section 840-C for a violation under this chapter or 
under Title 5, chapter 337, subchapter 3.  A whistleblower may seek injunctive or 
declaratory relief that the State would be entitled to seek.  A private 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.  A whistleblower may select a representative 
organization to initiate a private enforcement action on the whistleblower's behalf.
§840-C.  Procedure
1.  Required notice; filing fee.  Before filing a private enforcement action under this 
subchapter, a whistleblower must submit written notice of the claim and a filing fee of $75 
to the Attorney General or the appropriate responsible state official.  The time periods set 
forth in this section begin when both the notice and filing fee have been submitted.  The 
Attorney General or the responsible state official may waive the filing fee in accordance 
with rules adopted by the Attorney General and the responsible state official.
2.  Contents of notice.  The notice under subsection 1, construed in the light most 
favorable to the whistleblower, must include:
A.  The name, address and contact information of the alleged violator;
B.  If the whistleblower's identity is confidential, the name and contact information of 
the whistleblower's representative organization;
C.  If the whistleblower's identity is not confidential, the name and contact information 
of the whistleblower or the whistleblower's representative organization;
D.  If the whistleblower has retained legal counsel, the name, address and contact 
information of the legal counsel; and
E.  A concise statement of the underlying claim reasonably calculated to apprise the 
Attorney General or the responsible state official of the substance and nature of the 
claim. 
3.  Amended notice.  The Attorney General or the responsible state official has 30 
days to determine if the notice filed in accordance with subsection 1 is in compliance with 
this section and rules adopted pursuant to this section.  If the notice is not in compliance, 
the Attorney General or the responsible state official shall specify the deficiencies in the 
notice and allow the whistleblower to furnish an amended notice.  The whistleblower must 
provide the amended notice within 30 days of receiving the deficiency determination from 
the Attorney General or the responsible state official.  If a deficiency determination is not 
made within 30 days by the Attorney General or the responsible state official, the notice is 
considered to be in compliance with this section.
4.  Investigation; decision regarding action.  The Attorney General or the responsible 
state official who receives notice under subsection 1 has 180 days to investigate the alleged 
violation and initiate a private enforcement action.
5.  Prefiling settlement.  If the parties reach a settlement after the whistleblower has 
provided notice pursuant to subsection 1 but prior to the private enforcement action being 
filed in court, the Attorney General or the responsible state official shall review the 
proposed settlement.  The Attorney General or the responsible state official shall approve 
the settlement if the Attorney General or the responsible state official determines the 
settlement is fair, adequate, reasonable and in the public interest.  The parties shall also 
comply with any other requirement necessary to finalize settlement.
6.  Commencement of private enforcement action.  At any time after receiving the 
notice under subsection 1, the Attorney General or the responsible state official may notify 
the whistleblower that the whistleblower may commence a private enforcement action.  If 
the Attorney General or the responsible state official does not initiate an enforcement action 
within 180 days of receipt of the notice, the whistleblower may commence a private 
enforcement action.  If a whistleblower commences a private enforcement action under this 
subsection, the whistleblower shall submit a copy of the complaint to the Attorney General 
or the responsible state official.
7.  Intervention by State.  Within 30 days after the filing of a private enforcement 
action under subsection 6, the Attorney General or the responsible state official may 
intervene and proceed with any claim in the private enforcement action.  After the 
expiration of the 30-day period, the Attorney General or the responsible state official may 
intervene in the private enforcement action for good cause shown, as determined by the 
court.
A.  If the Attorney General or the responsible state official intervenes in a private 
enforcement action:
(1)  The Attorney General or the responsible state official has primary 
responsibility for prosecuting the private enforcement action and is not bound by 
an act of the whistleblower bringing the private enforcement action;
(2)  The whistleblower remains a party to the private enforcement action;
(3)  The Attorney General or the responsible state official may move to dismiss or 
settle the private enforcement action after the whistleblower has been notified of 
the filing of the motion and has been provided with an opportunity to be heard and 
the court determines that the dismissal or settlement is rationally related to 
accomplishing a valid governmental purpose and is not fraudulent, arbitrary and 
capricious or illegal; and
(4)  If the Attorney General or the responsible state official substantially prevails 
in the private enforcement action, the Attorney General or the responsible state 
official must provide fair compensation for the attorney's fees and costs expended 
on behalf of the whistleblower in instituting the private enforcement action.
B.  If the Attorney General or the responsible state official does not intervene in a 
private enforcement action, the whistleblower may prosecute the private enforcement 
action subject to the following limitations.
(1)  The court must review and approve any settlement of the private enforcement 
action.  The proposed settlement must be submitted to the Attorney General and 
the responsible state official at the same time that the proposed settlement is 
submitted to the court.  The court may approve a settlement or dismissal of the 
private enforcement action only upon a determination that the settlement or 
voluntary dismissal is fair, adequate, reasonable and in the public interest.
(2)  The Attorney General or the responsible state official may attend to the 
interests of the State in the private enforcement action or to any other interest of 
the State.
8.  Prompt trial.  Concurrent adjudication of another private claim may not delay a 
private enforcement action.
9.  Not subject to rules governing class action suits.  A private 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 court rules governing pretrial discovery in a private 
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 whistleblower's 
discovery rights in a private enforcement action.
11.  Action based on same facts.  If a whistleblower brings a private enforcement 
action, another person may not bring a related private enforcement action based on the 
same facts unless the court determines that the previously filed private enforcement action 
was not diligently prosecuted. 
12.  Private agreement may not impair right.  The right to bring a private 
enforcement action under this section may not be impaired by any private agreement.
13.  Commencement of action; statute of limitations.  Notwithstanding any 
provision of law to the contrary, a private enforcement action must be commenced within 
the same period of time that the Attorney General or the responsible state official has to 
bring an action for the same set of circumstances under the applicable statute.  The statute 
of limitations for bringing a private enforcement action is tolled from the date a 
whistleblower files a notice pursuant to subsection 1 or the date the Attorney General or 
the responsible state official commences an investigation, whichever is earlier.
14.  Private action based on same injury.  This section does not limit the right for the 
whistleblower to pursue a private action based on the same injury.
15.  Rules.  The Attorney General and the responsible state official 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-D.  Penalties, fees and costs 
1.  Penalties.  For a private enforcement action brought pursuant to this subchapter:
A.  If the Attorney General or the responsible state official has intervened in the private 
enforcement action under section 840-C, subsection 7, the Attorney General or the 
responsible state official may assess penalties on the defendant as authorized by law;
B.  If the Attorney General or the responsible state official has not intervened in the 
private enforcement action but the Attorney General or the responsible state official is 
authorized by law to assess a civil penalty, the court shall assess an equivalent civil 
penalty;
C.  If state law provides for a penalty, the court shall award the penalty for each person 
aggrieved by each violation during the relevant time period;
D.  If state law does not provide for a penalty, the court shall assess and award a civil 
penalty of $250 for each person aggrieved for each 2-week period in which the 
violation occurred; and
E.  The court may award a lesser amount of civil penalty than the amounts specified in 
this subsection 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.
2.  Attorney's fees; costs.  A whistleblower that prevails in a private 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.
3.  Distribution of civil penalty recovered.  Fifteen percent of any civil penalty 
recovered under this section pursuant to a court decision or settlement must be deposited 
in the Community Outreach and Labor Education Fund established under section 840-G 
and:
A.  If a claim involves an alleged violation of this chapter and the Attorney General or 
the Department of Labor has not intervened, the whistleblower is entitled to 30% of 
the civil penalty recovered, the Attorney General is entitled to 15% of the civil penalty 
recovered and the Department of Labor is entitled to 40% of the civil penalty 
recovered;
B.  If a claim involves an alleged violation of this chapter and the Attorney General or 
the Department of Labor has intervened, the whistleblower is entitled to 20% of the 
civil penalty recovered, the Attorney General is entitled to 20% of the civil penalty 
recovered and the Department of Labor is entitled to 45% of the civil penalty 
recovered;
C.  If a claim involves an alleged violation of Title 5, chapter 337, subchapter 3 and the 
Maine Human Rights Commission described in Title 5, chapter 337, subchapter 2 has 
not intervened, the whistleblower is entitled to 30% of the civil penalty recovered and 
the Maine Human Rights Commission is entitled to 55% of the civil penalty recovered; 
and
D.  If a claim involves an alleged violation of Title 5, chapter 337, subchapter 3 and 
the Maine Human Rights Commission described in Title 5, chapter 337, subchapter 2 
has intervened, the whistleblower is entitled to 20% of the civil penalty recovered and 
the Maine Human Rights Commission is entitled to 65% of the civil penalty recovered.
§840-E.  Limitation on private enforcement actions
Notwithstanding section 840-C, a whistleblower may not bring a private enforcement 
action under this section:
1.  Violation of a posting, notice, agency reporting or filing requirement.  For an 
alleged violation of a posting, notice, agency reporting or filing requirement, except when 
the filing or reporting requirement involves mandatory payroll or injury reporting; or
2.  Minor variation in a wage statement.  If the alleged violation is for a minor 
variation in the legal name or address of the employer in a wage statement required under 
section 665 and the variation does not impair an employee's ability to promptly and easily 
identify the employer.
§840-F.  Retaliation prohibited
1.  Prohibition.  A person may not retaliate, or threaten to retaliate, in any manner 
against a whistleblower because:
A.  The whistleblower has brought a private enforcement action or cooperated with a 
private enforcement action; or
B.  The person believes that the whistleblower may bring a private enforcement action 
or cooperate with a private enforcement action.
2.  Remedy.  A person aggrieved by a violation of this section may bring a private 
enforcement 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-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 subchapter.  Any interest earned by the fund must be 
credited to the fund.  All money in the fund is appropriated continuously for the purposes 
provided in subsection 3.
2.  Deposits.  Pursuant to section 840-D, subsection 3, 15% of any civil penalty 
recovered must be deposited in the fund.
3.  Expenditures.  The Department of Labor shall use money from the fund to assist 
workers in enforcing employment rights, including outreach, community-based education 
events, training materials, technical assistance, counseling and investigative, research and 
referral services, which may include the use of 3rd-party contractors.
SUMMARY
This bill provides for a right of a whistleblower alleging a violation of certain labor 
laws to bring a private enforcement action on behalf of the State and in the name of the 
State after providing notice to the Attorney General, the Department of Labor or the Maine 
Human Rights Commission, depending on which law has been claimed to be violated.  The 
Attorney General, the Department of Labor or the Maine Human Rights Commission may 
choose to intervene, in which case the State takes primary responsibility for the private 
enforcement action.  If the State declines to intervene, the whistleblower is allowed to 
proceed with the private enforcement action.  Any settlement or voluntary dismissal of the 
private enforcement action must be reviewed and approved by the state agencies involved 
and, after the settlement or dismissal occurs after the filing of the private enforcement 
action, the court.  The bill provides for penalties if the private enforcement action succeeds, 
which vary depending on whether the State has intervened, and for distribution of the 
penalties, including 15% of any penalty received to be deposited into the Community 
Outreach and Labor Education Fund, created by the bill to assist workers enforcing 
employment rights, including outreach, community-based education events, training 
materials, technical assistance, counseling and investigative, research and referral services.