Workers harvest strawberries in Cape Elizabeth in 2022. Gov. Janet Mills vetoed a bill that would have legally defined farmworkers as “employees,” making them eligible for the state minimum wage of $13.80 per hour. Derek Davis/Staff Photographer

Gov. Janet Mills vetoed legislation Wednesday that would have improved wages and working conditions of farmworkers in Maine, saying that she responded to concerns from the agricultural community about the unintended consequences and unforeseen costs of the heavily amended bill.

Mills and farm owners worry that the bill’s language granting a state minimum wage to farmworkers might trigger other legal requirements and benefits provided to employees under state and federal labor laws, such as paid time off, unemployment benefits and piecework compensation.

Her decision to send it back to the Legislature for more study and clearer language drew praise from farmers and criticism from the bill’s supporters, including its sponsor, House Speaker Rachel Talbot Ross, D-Portland.

Passed by the Maine House and Senate on July 6, L.D. 398 would have legally defined farmworkers as “employees,” making them eligible for the state minimum wage of $13.80 per hour. The bill also would have protected them from having to work more than 80 hours of mandatory overtime in any consecutive two-week period, and given them the right to a 30-minute unpaid rest break after six hours.

Under current Maine labor laws, farmworkers aren’t considered employees, so they don’t benefit from minimum wage and overtime protections afforded to most workers. With few exceptions, farmworkers in Maine are only legally entitled to the federal minimum wage of $7.25 per hour, though most generally make more than that amount.

Mills, a Democrat, had 10 days to sign or veto the bill after she received it, or it automatically would have become law at midnight Wednesday.

The governor said she vetoed the bill “reluctantly” because she strongly supports a minimum wage for farm workers. But in her veto letter she said she is concerned about “a series of questions from members of the agricultural community about the true scope of the language.”

Mills said the bill began as “a proposal primarily requiring overtime pay for individuals employed in canning, processing, preserving, freezing, drying, marketing, storing, packing or distributing agricultural produce, meat and fish products and perishable foods.” Over time the bill was substantially amended and scaled back, so it appears to affect only the minimum wage with limited impact on overtime for agricultural employees, she said.

“But this confusing evolution of the legislation has led to a series of questions from members of the agricultural community about the true scope of the language,” Mills said. As an example, she said “agricultural workers” and “agricultural labor” are terms used elsewhere in Maine law for different purposes, raising the question of how the bill would impact other laws.

“Members of the agricultural community now justifiably wonder whether the engrossed version of L.D. 398 also affects in some unintended way some other provisions of state or federal labor laws dealing with unemployment, independent contractor status, records of payment and piecework compensation,” Mills said.

Mills said she would have preferred to have the Legislature recall the bill from her desk “to clarify for all affected parties, what the bill does and does not do and what aspects of farm employment it may or may not change.” But the Legislature isn’t in session.

In returning the bill to the Legislature, Mills pledged to issue an executive order to formally reestablish a stakeholder group “to allow for a longer and more in-depth analysis” of the bill, with the goal of arriving at “a shared understanding of how to implement a minimum wage bill for farmworkers.”

Out of this process, Mills pledged to present a governor’s bill during the second regular session of the Legislature.

The Legislature returns to the State House Tuesday and could override the governor’s veto, which would take the support of two-thirds of the members present in the House and Senate. The bill passed 73-56 in the House and 21-10 in the Senate.

The stakeholder group is exactly what Penny Jordan, co-owner of Jordan’s Farm in Cape Elizabeth, had hoped for.

“The governor is doing exactly what the farming community has been asking for,” Jordan said Wednesday. “Which is, let us help make policy that works for the diversity of farms and farmworkers in Maine. I believe we can develop 21st-century policy that demonstrates the value that farmworkers bring to Maine.”

Requiring operators to pay the state minimum wage or allow half-hour breaks for every six hours in the field may be doable for many farms, Jordan has said. But other benefits may be more difficult to implement, such as paid family leave and other paid time off, she said.

CRITICS REACT

Critics said this is the second time Mills has vetoed legislation that would expand protections for farmworkers, recalling her action last year on a bill that would have expanded collective bargaining rights to agricultural workers.

Talbot Ross said the governor’s veto Wednesday continues the cycle of discrimination against agricultural workers.

“With her veto of L.D. 398, Gov. Mills is yet again using the power of her office to maintain inequality amongst Mainers,” Talbot Ross said in a written statement. “Current law perpetuates and abets an institutional and systemic legal system that fails to provide farmworkers with equal protection under the law.”

As amended, the bill would have ensured that farmworkers are paid the same state minimum wage that every single other worker in Maine is paid, Talbot Ross said.

“It would have recognized that the people who perform the back-breaking labor entailed by harvesting our food should be paid at least as (much as) people who serve us a coffee,” she said. “However, in spite of countless hours of negotiation, we are faced with a veto message and a governor who is far too comfortable with the status quo of oppression.”

Talbot Ross said farms should be held to the same standards as other businesses and workers deserve rights codified into law. “Regardless of today’s veto, that work can and must continue – for our farms, for our farmworkers and for our agricultural future,” she said.

Cynthia Phinney, president of the Maine AFL-CIO, said the governor’s veto sends a clear message to farmworkers that they are second-class citizens and not worthy of the same rights and protections other workers enjoy.

“This veto carries on the historical stain and stench of exploitation and racial exclusion,” Phinney said. “It’s embarrassing and shameful. Farmworkers are some of the hardest-working people in our nation and they deserve fair and equal treatment.”

The Maine Center for Economic Policy issued a statement expressing its disappointment in the governor’s veto.

“Continuing the current system of sub-minimum wages for farmworkers means that about one-quarter of Maine’s agricultural workers will continue to live in poverty,” said Arthur Phillips, a policy analyst at the center. “As in the rest of the country, these workers in Maine are disproportionately Black, Latino, and Indigenous, and they are more than four times as likely to live in poverty as other workers. This veto means their second-class status will persist in Maine.”

Maine is home to 7,600 farms, according to recent federal data. They employ more than 13,000 hired employees; that number does not include contracted workers.

Several workers’ and human rights groups testified in favor of the original bill, while farmers across the state challenged it as costly and unmanageable.

The bill wouldn’t apply to “seasonal employers” as defined under Maine law, which are industries that operate in a regularly recurring period or periods of less than 26 weeks in a calendar year. Most farms in Maine operate more than 26 weeks per year and therefore are not considered seasonal employers.

The bill also doesn’t allow farmworkers to unionize, but does allow them to discuss and seek professional advice about their rights without fear of retribution from employers.

Talbot Ross also proposed L.D. 525, which would allow farmworkers to unionize and safely address employment concerns. That bill was carried over to the next legislative session.