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Wage Payment Litigation, attorneys and footnotes

Attorneys for appellants:
Gerald F. Petruccelli, Esq., (orally)
Pettrucelli & Martin, LLP	
P O Box 9733	
Portland, ME 04104-5033
Donald F. Fontaine, Esq.
Jonathan S.R. Beal, Esq.
Nicolaas W. Groenenveld-Meijer, Esq.
Fontaine & Beal, P.A.
P O Box 7590
Portland, ME 04112

James W. Case, Esq.
McTeague Higbee Case Watson Cohen & Whitney, P.A.
P O Box 5000
Topsham, ME 04086-5000

Attorneys for appellees:

William J. Kayatta Jr., Esq., (orally)
Ann L. Rudisill, Esq.
K. Douglas Erdman, Esq.
Pierce Atwood
One Monument Square
Porltand, ME 04101-1110

Michael G. Messerschmidt, Esq.
Gregory P. Hansel, Esq.
Matthew J. LaMourie, Esq.
Preti, Flaherty, Beliveau, Pachios & Haley, LLC
P O Box 9546
Portland, ME 04112-9546

John H. Rich III, Esq.
William J. Sheils, Esq.
Perkins, Thompson, Hinckley & Keddy, P.A.
P O Box 426
Portland, ME 0412-0426

John W. Chapman, Esq.
Kelly & Chapman
P O Box 168
Portland, ME 04112-0168

Philip J. Moss, Esq.
Jonathan Shapiro, Esq.
Moon, Moss, McGill, Hayes & Shapiro, P.A.
P O Box 7250
Portland, ME 04112-7250

Attorneys for amicus curiae 
Maine Bureau of Labor Standards:

Andrew Ketterer, Attorney General
Gwendolyn D. Thomas, Asst. Atty. Gen.
6 State House Station
Augusta, ME 04333-0006
FOOTNOTES******************************** {1} . The individual cases that were consolidated for this appeal are: Basinger v. Wal- Mart Stores, Inc., CV-98-351 (Me. Super. Ct. Cumberland Cty., Nov. 8, 1999); McNabb v. Starwood Hotels & Resorts, Inc., CV-98-359 (Me. Super. Ct. Cumberland Cty., Nov. 8, 1999); Pelletier v. Burger King, CV-98-344 (Me. Super. Ct. Cumberland Cty., Nov. 8, 1999); Simpson v. Harper Hotels, Inc., CV-98-383 (Me. Super. Ct. Cumberland Cty., Nov. 8, 1999); Newcomb v. The Newark Group, CV-98-192 (Me. Super. Ct. Kennebec Cty., Nov. 8, 1999). {2} . The statutes provide: § 621. Time of payment 1. Certain employers; weekly payment required. Every corporation, person or partnership engaged in a manufacturing, mechanical, mining, quarrying, mercantile, restaurant, hotel, summer camp, beauty parlor, amusement, telegraph or telephone business; in any of the building trades; in logging or lumbering operation; upon public works, or in the construction or repair of roads, bridges, sewers, gas, water or electric light works, pipes or lines; every incorporated express company or water company; and every steam railroad company or corporation shall pay weekly each employee engaged in his or its business the wages earned by the employee to within 8 days of the date of that payment; every county and city shall so pay every employee who is engaged in its business the wages or salary earned by him, unless the employee requests in writing to be paid in a different manner. Every town shall so pay each employee in its business if so required by the employee. An employee who is absent from his regular place of employment at a time fixed for payment shall be paid thereafter on demand. 2. All employers; payment of balance of hourly wages. Any employer, regardless of whether enumerated in subsection 1, shall pay to its employee, on or before the employee's next regularly scheduled payday, the balance of the employee's earned hourly wages due to be paid which were not paid on the date normally scheduled for payment of those wages. This subsection shall not be construed to permit nonpayment or withholding of payment of wages when due. 26 M.R.S.A. § 621 (1988 & Supp. 1998), repealed by P.L. 1999, ch. 465, § 1. § 626-A. Penalties Whoever violates any of the provisions of sections 621 to 623 or section 626, 628 or 629 shall be subject to a forfeiture of not less than $100 nor more than $500 for each violation. Any employer shall be liable to the employee or employees for the amount of unpaid wages. Upon a judgment being rendered in favor of any employee or employees, in any action brought to recover unpaid wages under this subchapter, such judgment shall include, in addition to the unpaid wages adjudged to be due, a reasonable rate of interest, an additional amount equal to twice the amount of such wages as liquidated damages and costs of suit including a reasonable attorney's fee. The action for unpaid wages may be brought by either the affected employee or employees or by the Department of Labor. The Department of Labor is further authorized to supervise the payment of the judgment, collect the judgment on behalf of the employee or employees and collect fines incurred through violation of this subchapter. When the Department of Labor brings an action for unpaid wages, this action and an action to collect a civil forfeiture may both be joined in the same proceeding. 26 M.R.S.A. § 626-A (1988 & Supp. 1998), amended by P.L. 1999, ch. 465, § 1. {3} . As it read at the time of Larrabee, section 630 stated: An employer shall, upon written request of the affected employee, give that employee the written reasons for the termination of his employment. An employer who fails to satisfy this request within 15 days of receiving it may be subject to a forfeiture of not less than $50 nor more than $500. 26 M.R.S.A § 630 (Supp. 1984-1985). {4} . This provision has since been repealed, and section 626 has been amended. See P.L. 1999, ch. 465, § 1. {5} . A different reading of section 621(2), urged by the employees, would render the section superfluous. If an employer fails to pay his employees in a timely manner, the employees must be paid by their next pay period. See 22 M.R.S.A. § 621(2). If a "late" wage was automatically an "unpaid" wage, the mandatory language of this section would be superfluous because employees would have already accrued a cause of action against their employer. Cf. Alie, 93 Me. at 285, 44 A. at 891-92. Because that wage is merely "late" and not yet "unpaid," an employer is not liable in a private cause of action to an employee unless and until that employer fails to pay the employee by the next pay period. {6} . The fact that no civil forfeiture penalties were sought by the Attorney General against the employers in these cases does not require that we construe the statutes differently. A decision by the Attorney General to seek a civil penalty is discretionary. See New England Outdoor Ctr. v. Commissioner of Inland Fisheries & Wildlife, 2000 ME 66, ¶ 12, 748 A.2d 1009, 1014. {7} . In this dissent, I refer to the versions of 26 M.R.S.A. §§ 621 and 626-A in effect at the time the complaints were filed. See 26 M.R.S.A. §§ 621 and 626-A (1988 & Supp. 1998). As noted in the opinion, section 621 was repealed by P.L. 1999, ch. 465, § 1, and section 626-A was amended by P.L. 1999, ch. 465, § 1 (see 26 M.R.S.A. § 626-A (Supp. 2000)). {8} . "Every person, for an injury done him in his person, reputation, property or immunities, shall have remedy by due course of law; and right and justice shall be administered freely and without sale, completely and without denial, promptly and without delay." Maine Const. art. I, § 19.

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