Sen. Jackson seeks to restore workers’ rights, enforcement of Maine labor laws

When Waterville delivery truck driver Bob Curtis and 40 of his co-workers decided to sue their employer, 3rd Party Logistics, for refusing to pay them for all of their time, they learned that was not legally possible. Back when they were first hired on, they had all signed individual arbitration waivers and forfeited their right to take the company to court.

“I needed to work,” Curtis told the legislature’s Labor Committee on Wednesday, “so I reluctantly had to sign the arbitration agreement.”

Instead of pursuing a class-action lawsuit, Curtis and the other drivers were informed that they could meet with the company’s appointed arbitrator. The forced arbitration process resembles a secret tribunal, often conducted by a single arbitrator hired by the employer. Curtis was told he could only meet individually — and he would have to fly to Phoenix, where the arbitrator is based, on his own dime.

Requiring workers like Curtis to sign these sorts of agreements is not an uncommon hiring practice. In fact, the Center for Popular Democracy estimates that across the country, by 2024, eight out of ten private-sector, non-union workers will be blocked from court by forced arbitration clauses.

This is owed in large part to last year’s U.S. Supreme Court decision, Epic Systems Corp. v. Lewis, which dramatically eroded workers’ right to sue.

“In my practice, when a worker comes and asks for help, I typically begin by requesting a personnel file. More and more, I find an arbitration agreement,” said Maine labor attorney Valerie Wicks. “Often my client has no idea they had signed away their right to bring a suit in court. This type of document would easily get lost in the shuffle with the uniform policy and your health care information.”

For workers who have been wronged who have signed arbitration agreements, their only recourse is to turn to the state’s labor law enforcement.

Hoping to restore some of these rights, Maine Senate President Troy Jackson (D-Aroostook) has introduced legislation, LD 1693, which would make it easier for Maine workers to have their day in court.

Jackson’s bill would seek to do this by giving Maine’s Department of Labor and the state Attorney General — which are not bound to the private arbitration agreements made between workers and their employer — greater reach in acting on behalf of the embattled employee.

Workers caught between forced arbitration and diminished state enforcement

As more employers begin forcing arbitration, there is a growing concern that there are fewer avenues of recourse for employees.



“I think we all agree that we want workplace laws and rights followed and enforced,” said Matt Schlobohm, executive director of the Maine AFL-CIO. “When we enact an earned paid leave law or a higher minimum wage or basic standards protecting workplace health and safety or preventing discrimination, it is our shared expectation that the law be followed, that those rights be enforced and that we have the tools to ensure compliance.”

This concern is deepened because, at the same time as workers are losing access to the courts, cuts to Department of Labor funding are limiting the ability of outside investigators to pursue cases.



DOL just recently added a fifth employee to enforce wage and hour standards for Maine’s more than 600,000 employees who work for 50,000 businesses. According to the Center for Popular Democracy, the department’s budget has decreased by 59 percent over the last 40 years, while the state’s workforce grew by 61 percent.

“They certainly don’t do any proactive audits of employers,” said attorney Jeff Young of the Maine Employment Lawyers Association, who represented Curtis in his wage theft case. “The department is more like a fireman who somebody calls up and they go rush to the scene. Maybe they put out the fire, maybe not sometimes.”

“Our system of enforcement is currently in crisis,” said Schlobohm. “We built a model, historically, that was a public-private partnership, where some portion of our enforcement happened through public means through the Department of Labor.”

But he said that the Epic Systems Supreme Court decision has handicapped the private side of that partnership: access to the courts. “There was never going to be a system where public enforcement alone would be able to ensure compliance. It was recognized that private enforcement was absolutely essential.”

Private attorneys could act on the state’s behalf

This problem is not unique to Maine. In other states, workers are similarly caught between budget austerity and diminished state enforcement on one side and shrinking access to the courts because of forced arbitration on the other.

California has come up with a novel response. The state’s 2004 “Private Attorneys General Act” allowed private attorneys to act on the state’s behalf when it lacked the capacity to defend workers.

Jackson’s bill could potentially build on that model. It would do so, in a roundabout way, by improving the state’s existing protections for employee whistleblowers.

His bill aims to protect and encourage whistleblowers by allowing them to designate a third-party advocate, potentially a labor organization, which could act on their behalf.

While not specifically laid out in the proposal, workers’ rights advocates say this new designation could address the impacts of forced arbitration by expanding Maine’s enforcement capacity. The bill would make it so DOL and the Attorney General, with their limited capacity for labor enforcement, could authorize a private attorney to litigate on behalf of a worker with the full power of the state behind them, unbound to forced arbitration.

“Forced arbitration agreements cut the judicial branch out of the process,” Wicks explained. “One step in the right direction is to increase public enforcement of our employment laws — meaning, harnessing the power of the executive branch to execute our laws.”

Under Jackson’s proposal, this model would also generate funding for the state’s enforcement agencies. Seventy percent of recovered penalties would go back into their budgets, with the workers and attorneys keeping the remaining 30 percent.

“It is an innovative attempt to provide the Department of Labor with more resources at no cost to the Maine taxpayers through sharing penalties that would be recovered,” Young said.

Under a similar model in California, the state’s Labor and Workforce Development Agency recovered over $34 million in the last fiscal year, according to the Center for Popular Democracy.

“[The Private Attorneys General Act] has been enormously successful in empowering workers to vindicate their rights,” Rachel Deutsch, the Center for Popular Democracy’s supervision attorney, wrote in testimony submitted to the Labor Committee.

Jackson’s bill also earmarks a portion of the penalty revenue for outreach to educate vulnerable workers about their rights.

In a public hearing on Jackson’s bill, Mike Roland, director of the DOL’s Bureau of Labor Standards, did not take an official position on the proposal, but he told members of the Labor Committee that he found aspects of the measure “very interesting.”

The Maine State Chamber of Commerce has already voiced opposition to the reform.

The bill, large in its scope, drew many questions from the committee about the potential implications of expanding the reach of Maine’s labor law enforcement. Because of this, Jackson has asked that it be carried over to the next legislative session, next year, to allow time for greater deliberation.

(Photo: Maine Sentate President Troy Jackson testifying before the Labor Committee | Official photo)