Bill Summary – FastDemocracy

130th MAINE LEGISLATURE
                   FIRST SPECIAL SESSION-2021
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.
                                       Printed on recycled paper
 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
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               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;
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     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;
                                         Page 3 - 130LR0835(01)
         (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.
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    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;
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     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