• Thank you for all your help on [AW's] case. Without you, nothing would have come from it. We will be sending people your way. We hope that we will not need your help again, but if we do you will be hearing from us.”

    - J.W., East Machias.
  • We appreciate everything you have done for us. You made this whole process much easier on [P.C.] and me. Words cannot express our gratitude.”

    - K.C., Sanford.
  • Thank you for your efforts and hard work in resolving my case. Your leadership and initiatives were outstanding. I felt truly represented, respected and was treated with honesty and integrity. We are grateful for a positive result and grateful for the excellent teamwork!”

    - L.D., Portland.
  • I want to thank you and your staff for all you and they did. The professional and compassionate way my case was handled is greatly appreciated. It was a pleasure to do business with your firm and if the need ever arises I will be back in touch. Thank you again.”

    - M.H., Bangor.
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In almost every workplace, information is communicated and stored electronically. Email, scanned documents, spreadsheets, databases, memos, letters, and more are all stored electronically. These troves of electronic information often contain the evidence that lawyers need to prove illegal activity. Even when a wrongdoer tries to cover their tracks, electronic storage of information can make it difficult to completely cover their tracks. One example of this occurred in a case in San Francisco that recently resulted in a judgment of over $10 million dollars for a whistleblower.

In that San Francisco case, the company claimed that it fired the whistleblower because of erratic work and loud outbursts. The whistleblower—who argued that the company fired him because he blew the whistle on illegal activity—said that his work was not erratic, he did not make loud outbursts, and the company never provided him with any documentation to support these claims. The company presented a performance review, dated a couple months before the whistleblower’s termination, which appeared to corroborate the company’s claim of erratic work and loud outbursts. But because the performance review was created electronically, “metadata” showed that the performance review was a fake.

Metadata is information about an electronic record such as who created it and when it was created. The whistleblower’s lawyer obtained the metadata associated with the performance review that supported the company’s claim of erratic work and loud outbursts. The metadata showed that the performance review was actually created after the whistleblower’s termination. This showed that the company did not take that performance review into account when it fired the whistleblower and that it may have created the performance review after the termination as a way to cover up its unlawful retaliatory motive for firing the whistleblower.

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A federal court in Connecticut has held that a jury could reasonably find that a cellphone company doing business as Verizon Wireless discriminated against an employee because of his disability. The employee, Edward Green, had a history of chronic back pain stemming from a back injury that required surgery. He worked for Verizon Wireless as a customer service representative who fielded customer calls and attempted to resolve their complaints.

Mr. Green suffered an exacerbation of his back pain that required him to take leave. He was worried about taking leave because his supervisor had told him in the past that employees who took sick leave could be fired and if anyone had any complaints about that, they could be fired for their complaints. While on leave, Mr. Green’s supervisor told him multiple times not to take too much leave and that he could be fired. Eventually that is exactly what happened—Verizon Wireless fired Mr. Green while he was on leave.

Verizon Wireless argued to the court that it fired Mr. Green because he experienced five disconnected calls and it fired any customer service representative with five disconnected calls. But Mr. Green said no one ever communicated this supposed rule to him; it also did not communicate the rule to other employees; and Verizon Wireless never put the rule in writing. Verizon Wireless presented evidence of other customer service representatives who it claims it fired for violating this rule but many of them had significantly more than five disconnected calls. Due to this evidence, and other evidence presented, the court determined that a reasonable jury could determine that Verizon Wireless did not actually terminate Mr. Green for violating this alleged rule and, instead, fired him for taking medical leave for his back pain.

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Earlier this month in New Jersey, a federal jury found that Lockheed Martin had discriminated against one of its employees because of his age and awarded that employee $51.5 million. Reports about the case indicate that the jury heard evidence that Lockheed Martin had a practice of laying off older workers while at the same time recruiting and hiring younger workers.

The plaintiff in this case, Robert Braden, was the oldest of six employees who reported to the same manager and he was the one chosen for layoff. The company gave Braden no reason for his lay off and did not use any objective criteria to make the layoff decision. Braden was 66 years old at the time of the layoff. The other four employees that the company chose for layoff from Braden’s facility were all older than 50.

The jury awarded Braden $520,000 in back pay which was doubled under the federal Age Discrimination in Employment Act (ADEA). The jury also awarded Braden $520,000 for emotional distress under New Jersey state law. Also under New Jersey state law, the jury decided to make Lockheed Martin pay Braden $50 million in punitive damages.

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The federal Family and Medical Leave Act (FMLA) requires covered employers to provide eligible employees with up to 12 weeks of leave per year for certain qualifying reasons, like a serious health condition or the birth of a child. For employees who need to take all, or close to all, of the 12 weeks they are entitled to, they should know how their employers calculate their leave years. This is because every time a new leave year begins, employees get 12 more weeks of FMLA leave.

Under the FMLA, an employer can choose one of four ways to calculate its leave year:

  1. the calendar year;
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Earlier this week, the U.S. Seventh Circuit Court of Appeals upheld a jury verdict against a company that fired an employee, Tracy Wink, because she needed leave to care for her autistic son. The jury found that Wink’s termination violated the Family and Medical Leave Act (FMLA).

Wink had to take leave from work to care for her autistic son because, due to his autism, he exhibited behaviors that led to his expulsion from his daycare center. Wink’s mother was able to watch her son three days per workweek but Wink had to watch him for the other two days of the workweek. Wink’s employer, Miller Compressing Co., permitted Wink to work from home the two days per week that she had to watch her son. It permitted Wink to deduct the hours from her pay that she spent during those two days caring for her son.

After several months working under this arrangement, Miller Compressing’s management decided that it would no longer allow any employees to work from home. A human resources (HR) officer called Wink on a Friday and told her that starting the next Monday she would have to start working in the office and if she could not do that she would be fired. Wink broke down in tears telling the HR officer that she could not possibly find day care for her son with such short notice. The HR officer falsely told Wink that FMLA did not permit her to take leave to care for her son unless she was taking him to a doctor’s appointment or therapy. On Monday she came into work and said that she had not found day care for her son. The company refused to change its decision and, as a result, Wink’s employment was terminated.

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The U.S. Equal Employment Opportunity Commission recently issued new guidance for workers with mental health conditions like PTSD and depression. The guidance discusses how the Americans with Disabilities Act (ADA) protects workers with mental health conditions and what the ADA requires employers to do to accommodate workers with mental health conditions.

The guidance makes clear that employers have an obligation to provide reasonable accommodations for workers with mental health conditions if the worker needs such an accommodation to do her job. The guidance explains that a “reasonable accommodation is some type of change in the way things are normally done at work” such as “altered break and work schedules (e.g., scheduling work around therapy appointments)” and “changes in supervisory methods (e.g., written instructions from a supervisor who usually does not provide them).”

If you ask for a reasonable accommodation for a mental health condition, your employer may ask you to obtain information from your health care provider to prove that you have a mental health condition and that you need a reasonable accommodation. The EEOC’s guidance includes a link to a resource that you can provide to your health care provider to assist her in providing this information to your employer.

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Yesterday, the U.S. First Circuit Court of Appeals, which covers Maine and other New England states, ruled against the Boston Police Department (BPD) in a race discrimination case. The plaintiffs in the case allege that BPD’s use of a hair test to detect drug use has an unlawful disparate impact against black people. The First Circuit held that that BPD may have refused to use a drug test that would have both met its need to detect drug use and not had an adverse impact against black people.

This was the second trip to the First Circuit for this case. As we previously reported, experts for the plaintiffs testified that black people tend to have higher levels of melanin in their hair which causes cocaine and associated chemicals to bind to their hair at a higher rate.  Cocaine and associated chemicals binds to hair when cocaine powder is in the air or when the person has undergone certain cosmetic hair treatments which are more common in the African American community.  These experts also testified that hair tests are relatively unreliable.  In fact, the federal government has refused to authorize hair tests in the screening of federal employees and employees of private industries for which the federal government regulates their drug testing.

The First Circuit determined that BPD’s use of the hair test was “job related” and “consistent with business necessity,” as required by the Civil Rights Act in cases where an employment practice has a disparate impact against racial groups, because the hair tests, while imperfect, were reliable enough. But the First Circuit also determined that BPD may have violated the Civil Rights Act because BPD knew of a less discriminatory alternative to the hair test and refused to use it. That alternative was called the “hair testing plus urinalysis test” and, as the name suggests, involves using a hair test and urinalysis test in tandem to detect drug use. The First Circuit found that there was evidence that this alternative test would have caused less adverse impact against black people while at the same time satisfying BPD’s need to detect drug use.

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There are going to be changes to Maine’s wage and hour laws in 2017. Starting on January 7, 2017, the minimum wage in Maine will rise to $9 per hour and it will rise each year until it reaches $12 per hour in 2020. (The wages for tipped employees are also going up and will continue to rise until 2020.) The minimum salary necessary for employees to be exempt from overtime pay requirements is also going to rise to $519.24 per week and will also continue to rise until 2020.  Your employer is required to display new posters in the workplace that reflect these changes.

To avoid paying these increased wages, more employers may be tempted to game the system by, for instance, misclassifying employees as exempt salaried employees or independent contractors. By misclassifying employees as exempt, employers can avoid paying them overtime; and by misclassifying them as independent contractors, employers can avoid paying them overtime pay and minimum wage. Misclassification is a diplomatic term for “wage theft.” Gaming the system this way enables employers to pocket money that employees have earned and should legally receive.

To protect yourself, don’t just accept your employer’s classification at face value. Just because you receive a salary, instead of hourly pay, does not mean that you are exempt from overtime pay when you work over 40 hours per week. Similarly, just because your employer says that you are an independent contractor does not mean you are.

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A class action against Walmart that we previously reported about has settled. The case involved Walmart’s refusal to provide health insurance to spouses of gay and lesbian employees. Walmart began providing health insurance to the spouses of gay and lesbian employees in 2014 but continued to maintain that the law did not require it to do so.

Under the terms of the settlement, Walmart will, among other things, set aside $7.5 million to compensate victims of Walmart’s discrimination and it will pay 250% of out-of-pocket expenses that victims incurred if the expenses totaled $60,000 or more. More than a thousand people have been identified who will be eligible for compensation but there could be more. As part of the settlement, Walmart also agreed to continue to treat same-sex and opposite-sex spouses the same when administering benefits.

The lead plaintiff in the case, Jacqueline Cote, said, “I’m pleased that Walmart was willing to resolve this issue for me and other associates who are married to someone of the same sex. It’s a relief to bring this chapter of my life to a close.”

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After a three day jury trial, a Bangor jury found that Woodlands Senior Living of Brewer (“Woodlands”) violated the Americans with Disabilities Act, the Rehabilitation Act, the Family Medical Leave Act, and the Maine Family Medical Leave Requirements and awarded the plaintiff, Christy Dorr, of Milford, $15,000 for her lost wages. 

Ms. Dorr was employed by Woodlands Senior Living of Brewer for three years.  On June 26, 2014 she needed to leave a shift for reasons relating to her pregnancy and medical conditions.  The next day Woodlands terminated her employment.  The jury concluded that Woodlands terminated Ms. Dorr because of her protected medical conditions and that Woodlands had failed to provide her with protected leave under the Family Medical Leave Act. Ms. Dorr filed suit in the U.S. District Court for the District of Maine on March 10, 2015 and the case went through protracted litigation prior to the trial.

The Court will consider additional issues including an award of liquidated damages, changes to Woodlands’ policies and procedures, corrections of Ms. Dorr’s personnel file and an award of attorney’s fees and costs. Ms. Dorr is represented by Chad Hansen, a member of the Maine Employee Rights Group.