• 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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This week the U.S. Equal Employment Opportunity Commission (EEOC) convened a number of experts to discuss how employers have begun and will increasingly continue to use “Big Data” to make employment decisions. These uses of Big Data include using algorithms, “data scraping” of the internet, and other means to evaluate tens of thousands of data points. Employers use these techniques to determine who to hire, who to promote, how to determine whether an employee is performing well, and make other employment decisions.

“Big Data has the potential to drive innovations that reduce bias in employment decisions and help employers make better decisions in hiring, performance evaluations, and promotions,” said EEOC Chair Jenny R. Yang. “At the same time, it is critical that these tools are designed to promote fairness and opportunity, so that reliance on these expanding sources of data does not create new barriers to opportunity.”

The experts saw the potential for the use of Big Data to make fairer employment decisions, reduce the role of implicit bias, and promote equality. At the same time, if not used properly, the use of Big Data could continue, and possibly worsen, inequities in employment decisions. As one expert said, “algorithms may be trained to predict outcomes which are themselves the result of previous discrimination. The high-performing group may be non-diverse and hence the characteristics of that group may more reflect their demographics than the skills or abilities needed to perform the job. The algorithm is matching people characteristics, rather than job requirements.”

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This week, the Maine Employee Rights Group scored a victory for its client in a whistleblower case that we filed against Woodlands Senior Living of Brewer. The Penobscot County Superior Court held that a jury could reasonably find that Woodlands retaliated against our client, who worked for Woodlands as a Certified Residential Medication Aide, because she blew the whistle on conditions that were detrimental to the health and safety of residents.

Our client began working at Woodlands in November 2012. She received regular pay raises during her time at Woodlands. In January 2014, she received a positive performance evaluation. After that, she raised concerns about resident care. For instance, she reported finding a resident covered in urine and feces and also residents not being fed. On May 4, 2014, our client told Woodlands management that she intended to file a complaint with the Department of Health and Human Services. The next day, Woodlands fired her.

Woodlands moved for summary judgment in this case arguing, among other things, that it was legally permitted to retaliate against our client for her reports of problems with resident care because her job duties required her to report her concerns. The court rejected Woodlands’ argument. The court held that a jury could reasonably determine that our client reported the problems with resident care out of a concern for the health and safety of the residents. And the jury, thus, could reasonably find that firing our client for her reports about resident care issues violated Maine’s Whistleblower Protection Act.

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Earlier this month, a federal court in Connecticut held that a jury could reasonably find that Lawrence & Memorial Hospital violated the rights of a lab tech when it failed to provide reasonable accommodations for her disability in retaliation for her filing a complaint of sexual harassment. The facts of this case, unfortunately, will sound familiar to many workers who have been similarly traumatic events.

The lab tech plaintiff who filed the lawsuit against Lawrence & Memorial Hospital, worked in a lab with a man who, she says, subjected her to some pretty significant harassment. The male co-worker allegedly acted in an abusive manner to many people in the lab. In one incident, he shoved a co-worker into the plaintiff. In another incident, he put his hand up to her face as though he was going to slap her. And in another incident, he elbowed her. Some of the harassment was also sexual, such as “blonde” jokes and nicknaming the plaintiff “bimbo.”

The plaintiff had hypertension which her doctors say was worsened because of the hostile environment she experienced at work. Her doctors believed it would be dangerous for plaintiff to continue to work in this hostile environment because her hypertension was so bad. The plaintiff complained about the harassment she experienced and also asked for changes to her working conditions to accommodate her hypertension.

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Yesterday, a federal court in Massachusetts held that a jury could reasonably find that the Framingham School Committee retaliated against a social worker because that social worker spoke out about sexual assaults that occurred at Framingham High School (“FHS”).

According to the court, a jury could reasonably determine that the social worker heard from two female students that the same male student had sexually assaulted them. The social worker had a meeting with the FHS principal and vice principal to discuss what FHS should do about the male student who allegedly sexually assaulted the two female students who had complained to the social worker. The social worker told the principal and vice-principal that he thought they should notify the district attorney about the allegations. The social worker claims that the principal resisted this idea because he did not want the allegations to become public. When the social worker pushed back, the principal told him that if he did not like the principal’s “leadership style,” he did not have to work there.

Later in the semester, the social worker emailed the principal again expressing his dissatisfaction with how FHS had handled the sexual assault allegations and also expressed his views, in general, on the issue of sexual assault. Soon after this email, the social worker claims that the principal began to look for reasons to discipline him. Three days after the social worker sent the email, the principal disciplined the social worker for not counseling a student. The social worker claims that he was never advised of that student’s counseling needs. The social worker grieved the discipline and won his grievance.

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Last week, the U.S. Equal Employment Opportunity Commission (EEOC) issued new updated guidance on laws that prohibit retaliation against workers who engage in protected activities such as opposing unlawful discrimination or participating in a discrimination investigation.  The EEOC issued its previous guidance in 1998 and since that time the U.S. Supreme Court has decided seven cases in which the court addressed the anti-retaliation laws that the EEOC enforces.  So, an update of the guidance was certainly warranted.

“Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination,” said EEOC Chair Jenny R. Yang. “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.  The public input provided during the development of this guidance was valuable to the Commission in producing a document to help employers prevent retaliation and to help employees understand their rights.”

The new guidance contains many helpful illustrative examples of protected activities.  Of course, there are many types of protected activities not illustrated but the EEOC’s guidance cover some common types.  Some examples of protected activity covered in the guidance include:  telling your employer that you witnessed acts of sexual harassment that a co-worker complained about; resisting sexual advances; refusing to comply with your employer’s instruction to engage in unlawful discrimination; and raising questions about potential pay discrimination.  Because these activities are protected, an employer may not retaliate against you for doing them.

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Thousands of current and former employees of the restaurant chain Chipotle have reportedly returned paperwork indicating their intent to join a lawsuit against Chipotle for wage theft.  The paperwork went out to current and former Chipotle employees in April and indicated that employees who worked “off the clock” for Chipotle could join the lawsuit.  Since then, nearly 10,000 current and former employees have joined the lawsuit.

The lawsuit alleges that Chipotle employees who worked the closing shift were automatically and routinely clocked out before they finished working.  Some managers even allegedly asked Chipotle employees to work after they were clocked out.  This is a classic form of wage theft and, given the number of workers who have opted-in to the lawsuit so far, it may have been a pervasive practice at Chipotle.

Unfortunately, many employers engage in wage theft in order to keep labor costs low.  Wage theft can take many forms such as requiring employees to work off the clock, refusing to pay time-and-a-half for all overtime worked, and improperly paying the same weekly salary to non-exempt employees even when they work overtime.  These practices are called wage theft because they involve the employers keeping wages that employees earned and are legally entitled to receive.

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Newsweek recently ran a story about a survey it conducted about sexual harassment in the news business.  The Newsweek reporters heard from numerous women about experiences they had with sexual harassment.  The trends were disturbing.  Many of the women who responded to the survey said that they were forced to endure sexual advances and sometimes assaults when they were young journalists first starting out in the in the business.

In 2013, the International Women’s Media Foundation issued a study which found that two-thirds of women in journalism have experienced threats, intimidation, and abuse—a majority of which occurred at the hands of male bosses, supervisors, and co-workers.

The trend of male supervisors and senior colleagues sexually harassing women who are just starting out in the journalism industry illustrates the mentality of many sexual harassers.  Men who sexually harass women often choose women with less power than them so that the women will be less likely to complain.  Furthermore, sexual harassment is often motivated just as much by a desire to exert power over these less powerful women as it is by sexual desire.

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Former Fox News journalist Gretchen Carlson recently filed a sexual harassment lawsuit against Fox News news chief Roger Ailes that has received a lot of media attention.  One aspect of the case that has received attention is Ailes’ efforts to force the lawsuit out of the public eye and into secretive arbitration proceedings.  Ailes’ attorneys have griped about trying his case in the press even though Ailes has aired allegations against countless other people in the press over the years.

Carlson filed her lawsuit in court, instead of arbitration, because her lawyers have argued that she agreed to pursue claims against Fox News in arbitration but not against Ailes himself.  And her lawsuit is against Ailes, not Fox News.  But that has not stopped Ailes’ attorneys from aggressively trying to push the case out of the public eye and into arbitration.

The arbitration agreement that Carlson signed is remarkable because of the scope of confidentiality it requires.  Normally, arbitration agreements keep cases out of the public eye because they require workers to bring their claims before a private arbitrator, instead of the public court system.  However, the arbitration agreement that Carlson signed forbids her from disclosing what happened to her to anyone outside of the arbitration proceedings.  Cliff Palefsky, a lawyer who heads the National Employment Lawyers Association’s task force on mandatory arbitration, calls this level of confidentiality a “gag order” and argues that it should be unenforceable because it goes against public policy.

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Last week, the U.S. Eighth Circuit Court of Appeals issued an opinion in a Family Medical Leave Act (FMLA) case which involved claims against Bridgestone Americas Tire Operations.  The court held that Bridgestone unlawfully interfered with the FMLA rights of Lucas Hernandez, a tire builder Bridgestone fired because of attendance.

While Hernandez worked for Bridgestone his son had asthma and he needed to intermittently take time off from work to care for his son.  The FMLA requires employers to permit FMLA-eligible employees to take intermittent leave for qualifying reasons, such as to care for a son or daughter with a serious health condition.  Bridgestone permitted Hernandez to take this intermittent FMLA leave but, according to the court, it did not provide him with all of the leave he was entitled to take.

Like many manufacturers, Bridgestone ran its tire building operations continuously.  This continuous operation required many employees to routinely work overtime shifts.  At the plant where Hernandez worked, Bridgestone put out overtime sign-up sheets where workers could express interest in overtime work.  Bridgestone then took the information from the sign-up sheets and posted another sheet indicating who was selected for overtime and when they had to work.  The court found that once Bridgestone selected an employee for overtime and put their name on the sheet, that overtime shift was mandatory.  Characterizing the overtime shift as mandatory had implications for calculating Hernandez’s FMLA leave entitlement.

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The Washington Post Magazine recently ran an interesting story about the prevalence of ageism in the workplace.  As the baby boomer generation ages, the problem of age discrimination is going to be more and more common.  Unfortunately, age discrimination remains one of the more socially acceptable forms of discrimination in our society.  Todd Nelson, a psychology professor quoted in the article, pointed to greeting cards as indicative of this social acceptability of ageism.  If you shop for birthday cards, you’ll see many that talk about how getting older is something to be ashamed of or that people would want to hide.  You don’t see such attitudes publicly expressed about race, sex, or religion.  A card that said “’ha ha, too bad you’re Jewish’ …wouldn’t go over so well,” Nelson noted.

Older workers face deeply ingrained pernicious stereotypes about their ability as workers.  Many employers hold stereotypical views that older workers are unable to learn new technologies (“you can’t teach an old dog new tricks”), unable to take direction from younger supervisors, and can’t get invested in the job because they are just thinking about retirement.  Many employers also assume that older workers will be prone to filing workers compensation claims due to on-the-job injuries.

If you are an older worker, you probably already know that you need to guard against ageism.  And if you don’t know that you need to do that, consider yourself warned.  There are laws against age discrimination but you need to stay alert to the signs of discrimination in order to detect it.  For example, if your employer is laying you off, try to find out the ages of the other people being laid off to see if, perhaps not so coincidentally, the younger workers are being spared the axe.  In some instances where employers offer you a severance package, the Older Workers Benefits Protection Act requires the employer to tell you the ages of the people who were laid off and not laid off so that you can see whether the employer targeted older workers.