Waldoboro Town Manager John Spear has suspended the shellfish ordinance’s mandatory conservation requirements for those seeking licenses following the findings of an investigation by the U.S. Department of Labor, according to a press release from Spear.
The investigation began June 18 when Spear met with investigator James Claus, of the Department of Labor’s Wage and Hour Division, Spear said in an interview Aug. 27.
The investigation found two types of violations related to the ordinance, one involving minimum wage requirements and the other involving minimum age requirements, according to the release.
The violations come because the Department of Labor considers individuals performing conservation activities required by the ordinance as employees of the town for the purposes of the Fair Labor Standards Act because they meet the act’s definition of employ, which is “to suffer or permit to work,” even though they were not employed by the town in the traditional sense, according to the release.
The Department of Labor found reseeding activities performed as part of the conservation program were not violations since propagating shellfish is exempt from the Fair Labor Standards Act’s minimum wage requirements, but other activities such as cleaning up the river are not specifically exempt, according to the release.
The investigation also found seven minors had been employed – again, by definition in the FLSA – in violation of minimum age standards, according to the release.
Spear acknowledged he has no legal standing to suspend the requirements of the shellfish ordinance, but said he had to make a decision between violating an ordinance or violating federal law.
“Once in a while you’ve just gotta do what you’ve gotta do,” Spear said.
Fines for violating the minimum age provisions could result in penalties up to and exceeding $11,000 per violation, according to the press release.
Claus had indicated, however, according to Spear’s release, that due to the unique circumstances and unintentional circumstances surrounding the violations he did not anticipate any fines being assessed.
Spear said he is waiting to receive a letter from the Department of Labor about the status of the investigation.
Jeff Nichols, the director of communications for the Department of Marine Resources, said in an email Aug. 27 that the DMR is interested in ensuring “municipalities have clarity on the implications of this determination.”
The commissioner of marine resources has the authority to set criteria for and approve proposed municipal shellfish conservation ordinances, he said.
Nichols said the department cannot comment further until an official response is received from the U.S. Department of Labor.
Whatever needs to happen regarding Waldoboro’s shellfish ordinance will depend on what the letter says, Spear said.
“I think we need to get the details, the final details, and see what’s going on,” he said.
Waldoboro’s shellfish ordinance already requires four of the six minimum hours of conservation work for those seeking licenses to be in reseeding shellfish, which is exempt, and applicants could choose to do all six hours in reseeding, Spear said.
Spear said he has requested the ordinance issue be put on the agenda for the Shellfish Conservation Committee’s Sept. 5 meeting.