• 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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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.

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The U.S. Fifth Circuit Court of Appeals in Louisiana recently reversed a trial court’s decision to dismiss a pregnancy discrimination case before trial.  The case involved the law firm Carabin & Shaw’s decision to terminate an employee named Cynthia Heinsohn days after she went out on maternity leave.  The trial court thought no reasonable jury could find that Carabin & Shaw had terminated Heinsohn because of her pregnancy.  The Fifth Circuit found that the trial court had improperly denied Heinsohn her right to a trial.

The trial court, according to the Fifth Circuit, improperly threw out Heinsohn’s case before trial based on an assessment of witness credibility.  The primary purpose of trials is to assess witness credibility.  A judge cannot deny a worker her day in court just because he believes, based on the written record, that the employer’s supposed reason for terminating the worker was non-discriminatory.  When a case comes down to witness credibility, particularly in a case where a jury trial is available, the winner should be decided based on a full assessment of each witness’ credibility by observing him or her testify.

The facts of Ms. Heinsohn’s case are, unfortunately, all too familiar.  Ms. Heinsohn went out on maternity leave and Carabin & Shaw found that some deadlines had been missed which it blamed on Ms. Heinsohn.  Without even asking Ms. Heinsohn about the missed deadlines, it fired her while she was on maternity leave.  According to the Fifth Circuit, there was evidence that Ms. Heinsohn was not responsible for the missed deadlines and a jury could infer that Carabin & Shaw actually terminated her because of her pregnancy.  This type of situation—where an employer fires an employee while she is out on leave—is all too familiar.  When employees go on leave, they often draw the ire of their employers who have to take steps to get the employees’ work done while they are out.

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Election day is quickly approaching and there are already some very contentious political campaigns going on right now.  Many people, including co-workers, share a deep interest in the positions and policies of various political candidates.  Workers should be careful, however, about what they discuss at work.

Many people mistakenly think that their employer cannot do anything to them for talking about politics because they have a First Amendment right to express their opinions.  While it is true that everyone has a First Amendment right to talk politics, the First Amendment only prevents the government from punishing you for talking politics.  So, if you work for a private employer, instead of a government, your employer can punish you for speaking your mind about, for example, why people should vote for a certain candidate.  Even employees who work for a government should be cautious about what they discuss at work because, even though the First Amendment provides some protections to those employees, those First Amendment protections are not unlimited.  There are also some laws, such as the federal Hatch Act, that prohibits political activity at work.

As with most legal rules, however, there is no bright line rule on what types of political speech an employer may punish you for saying.  For example, the National Labor Relations Act (NLRA) entitles non-supervisory employees to discuss issues such as their pay.  Thus, if you speak to your co-workers about how you like the policy proposal of raising the minimum wage because you think you and your co-workers deserve a pay raise, your employer may not be able to legally punish you for such conversations.

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A new poll conducted by National Public Radio, the Robert Wood Johnson Foundation, and Harvard’s T.H. Chan School of Public Health shows that many people believe that work is bad for their health.  Here are some of the key findings about working adults in the U.S.:

  • 43% say that their work negatively affects their stress levels;
  • 28% say that their work has a bad effect on their eating habits;
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Maggie Hasan, the Governor of New Hampshire, recently issued an executive order that prohibits employment discrimination against transgender people based on their gender identity or gender expression.  The New Hampshire Law Against Discrimination already prohibited discrimination based on sexual orientation but not gender identity or expression.  Governor Hasan’s executive order will protect employees that work for New Hampshire State government as well as employees who work for contractors that do business with the State of New Hampshire.
“Throughout our history, it has been clear time and again that we always grow stronger when we work to ensure the full inclusion of all citizens in our democracy, our economy and our communities,” Governor Hassan said. “By making clear that gender identity and gender expression are protected in the State’s anti-discrimination policies, this Executive Order helps ensure that New Hampshire state government welcomes and incorporates the talents and contributions of all of our citizens. As we celebrate Pride Month, this Executive Order reinforces that New Hampshire is a welcoming state where everyone has the opportunity to share in our high quality of life and economic success.”
 
Maine has prohibited discrimination against transgender people for years.  The Maine Human Rights Commission has interpreted the prohibition against sexual orientation discrimination in the Maine Human Rights Act as including a prohibition against discrimination based on gender identity.  While Governor Hasan’s executive order moves New Hampshire closer to Maine and other New England states that prohibit gender identity discrimination, the executive order does not protect many employees in New Hampshire.  For those transgender employees not covered by the executive order, they may rely on federal law.  The U.S. Equal Employment Opportunity Commission has interpreted the Civil Rights Act’s prohibition on sex discrimination to include a prohibition on gender identity discrimination. 
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The New York Department of Labor (NYDOL) is reportedly taking an unusually long amount of time to determine whether Uber drivers who lose their ability to drive for Uber may collect unemployment insurance benefits.  This issue relates to the class action lawsuit against Uber which we have previously written about.  The issue that NYDOL is grappling with is the same as the issue in that lawsuit:  are Uber drivers employees or independent contractors?

Employees may be eligible for unemployment insurance benefits when they lose their jobs but independent contractors typically are not eligible.  Uber maintains that its drivers are independent contractors and, so, it does not pay unemployment insurance taxes.  If the NYDOL determines that ex-Uber drivers should be eligible for unemployment insurance benefits, Uber may face more litigation over whether it has to pay unemployment insurance taxes in New York.

NYDOL has been telling Ex-Uber drivers who apply for unemployment insurance benefits the following: “The information we are being given is these claims (not just yours) are under executive review, which means the Dept of Labor is not making the decision whether or not this employment is covered. Your claim will remain pending until such time as a determination has been made.”

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The New Jersey Supreme Court recently held that an employer may not require an employee to agree to shorten the amount of time he has to bring a claim against the employer for violations of New Jersey’s Law Against Discrimination (LAD).  In the case, the employer had included language in its job application form which said, in essence, that if it hired the applicant and then violated his rights, he had to bring any claim against the employer within six months even though the LAD gives workers two years to file their claims.

New Jersey’s LAD has a two-tiered enforcement system with both an administrative agency that accepts complaints and a right for workers to bring claims in court.  If workers in New Jersey want to file a claim with the administrative agency that enforces the LAD, which is called the Division on Civil Rights, they must do so within six months.  The Division on Civil Rights investigates complaints of discrimination, enforces the LAD, and attempts to resolve complaints through conciliation.  However, if the Division on Civil Rights does not act as quickly as the worker would like, he has the option of withdrawing his complaint and proceeding to court.

The New Jersey Supreme Court held that it was particularly important to the LAD that workers have the option to file with the Division on Civil Rights and then, subsequently, withdraw that complaint and file in court.  In this case, the employer’s application language would essentially force workers to choose between filing in court or proceeding before the Division on Civil Rights, instead of having both options.  The court believed this would significantly undermine the purpose of the LAD, which is to eradicate discrimination not only because discrimination hurts individual workers but also because it “menaces the institutions and foundation of a free democratic state.”

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In recent years, lawmakers have debated whether to prohibit employers from asking about criminal history on job applications.  Those who want to prohibit questions about criminal history in job applications have used the slogan “Ban the Box” because they want employers to remove “yes” or “no” checkbox questions about criminal history from their applications.  Supporters of Ban the Box laws believe that the laws will help black workers who are statistically more likely to have criminal histories than white workers.  They believe that black applicants will have a better chance of getting called for an interview if they do not have to reveal a criminal history on a job application.

Some states and cities around the country have enacted Ban the Box laws.  Researchers recently looked at the effects these laws had on black workers as compared to white workers in New York City and New Jersey.  Surprisingly, these researchers found that Ban the Box laws actually hurt black applicants’ chances of getting called for an interview.

What could explain this counter-intuitive result?  The researchers who conducted the study have several theories.  One theory is that when employers have information about applicants’ races but not their criminal histories, employers base their decisions on the knowledge that, in general, black people are more likely to have criminal histories than white people.  While employers cannot require an applicant to reveal her race on a job application, they can infer race from other information such as the address and name of the applicant.  If an employer believes that an applicant is black and is unable to determine whether the applicant has a criminal history, it may act under the assumption—either consciously or unconsciously—that the black applicant has a criminal history.

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The Center for Work Life Law recently published a study on litigation trends in family responsibility discrimination cases which found a dramatic increase in such claims.  Family responsibility discrimination occurs when an employer discriminates against an employee because s/he has family caregiving responsibilities, such as caring for newborn children, elderly parents, or disabled spouses.

The study found that in the past ten years, while employment discrimination claims decreased from the prior ten years, family responsibility discrimination cases increased by 269%.  The study also found that employees win family responsibility discrimination cases at higher rates than other types of employment discrimination cases.  Nationwide, employees have won 67% of family responsibility discrimination cases that went to trial in the last ten years; and employees have won 72% of such cases that went to trial in Maine.

The researchers who conducted the study interestingly found that claims involving discrimination based on elder care responsibilities as well as claims filed by male workers have increased over the past ten years.  While these claims are still small in number compared to the more common family responsibility discrimination cases involving discrimination against pregnant workers and female employees with children, the increases are notable.  As the baby boom generation continues to age, more and more workers have to care for elderly parents and relatives.  Furthermore, it has become more socially expected and necessary for men to take bigger roles in family caregiving responsibilities; and this family caregiving role for men clashes with stereotypical notions that such caregiving is “women’s work.”