Maine Employment Lawyer Blog

Today, the U.S. First Circuit Court of Appeals, in Boston, affirmed a judgment against a Puerto Rican hospital of nearly $2 million because it retaliated against a doctor who complained of age discrimination. The hospital terminated the doctor after he had complained that the hospital discriminated against him on the basis of his age. The Court affirmed the judgment because it found that various pieces of evidence cast doubt on the truthfulness of the hospital's explanation for its decision to terminate the doctor. For instance, the hospital claimed that it terminated the doctor not because he had complained of age discrimination but because he had purchased an electrocardiography machine for his private practice and took business away from the hospital with it. However, the hospital had informed doctors who worked for it that they could purchase their own equipment for their private practices. Moreover, other doctors had purchased similar equipment for their private practices and the hospital did not terminate them.

This case illustrates that an employee who experiences retaliation or discrimination can prove it with circumstantial evidence. He does not necessarily need a witness to say that the employer admitted it was retaliating against or discriminating against him in order to prevail. If you believe your employer has illegally retaliated against you or discriminated against you, contact an experienced employment attorney who can tell you whether there is enough circumstantial evidence to prove that your employer violated your rights.

Sen. Susan Collins (R-ME) is sponsoring a bill that would, among other things, return roughly $11 billion to the U.S. Postal Service (USPS) from the Federal Employee Retirement System (FERS). According to Collins, the $11 billion is equal to the amount of money that USPS has overpaid in pension contributions. By returning this money to USPS, it could offer incentives to employees if they retired. The goal would be to reduce the USPS' workforce by about 100,000 through these incentives.

The bill would also reform the federal workers' compensation program. According to Collins, the bill "would bring federal benefits more in line with compensation levels offered under most states' laws, and encourage more employees who are able to work to return to the workforce."

Joe Lieberman (I/D-CT), Tom Carper (D-DE), and Scott Brown (R-MA) are also sponsoring the bill.

LD 1571 is a bill sponsored by Assistant House Majority Leader Andre Cushing, R-Hampden that seeks to decimate Maine's workers' compensation law, making it harder for injured workers to receive lost time and medical benefits for on-the-job injuries.

The bill, which will be heard by the Legislature's Labor, Commerce, Research and Economic Development Committee this spring, proposes sweeping changes to the existing workers' compensation law, nearly all of which favor employers and insurance companies over injured workers. The proposed changes include:

• Instituting a scale of benefits based on the severity of an injury and reducing the overall number of weeks that benefits are paid to injured workers.

• Prohibiting the Workers' Compensation Board from extending the duration of benefits for injured workers even in cases of extreme financial hardship.

• Reducing organized labor's representation on the Workers' Compensation Board.

• Eliminating the requirement that doctors performing insurance medical examinations have an active practice treating patients.

• Eliminating the requirement that the insurer pay for the employee to have his or her own physician present at insurance medical examinations.

• Curtailing injured workers' access to mediation by requiring employer consent to participate.

• Eliminating the Workers' Compensation Board troubleshooter program.

• Stopping benefits to injured workers with subsequent, non-work related, disabling illnesses and injuries.

• Limiting penalties for employers and insurers who intentionally or fraudulently fail to pay benefits within the required time limits.

• Providing for full reimbursement to employers from proceeds paid by a 3rd party rather than allowing an injured worker to reduce by the amount he or she paid an attorney to obtain the 3rd party recovery.

• Limiting injured workers' attorneys' fees.

Perhaps the most concerning proposal is the one instituting a scale of benefits based on the severity of an injury and reducing the overall number of weeks that benefits are paid to injured workers. Proponents argue that the current law is arbitrary in that two people with the same injury could receive different amounts in benefits based on when they are injured. However, the proposed scale of benefits and overall reduction of benefits further limits injured workers' access to benefits at a time when they are already reduced, thereby preventing injured workers from getting back on their feet. This proposal also ignores the fact that many injured workers will never return to their field or earn what they earned before they were injured.

The proposal to eliminate the requirement that doctors performing insurance medical examinations have an active practice treating patients is also very concerning. Doctors that actually treat patients on an ongoing basis are more likely to listen and care about injured workers than doctors that make their living exclusively by performing insurance medical examinations. The proposal to make injured workers pay to have their own doctors attend these insurance medical examinations means that injured workers will not be able to avail themselves of this statutory right because most, if not all, simply cannot afford it. The statutory right of having your own doctor present exists to safeguard the injured worker's rights during the examination.

Curtailing access to mediation also hurts injured workers because mediation brings both parties to the table and often results in agreements to pay, in addition to clarifying the issues in the case for the injured worker.

Eliminating the troubleshooter program hurts injured workers because the troubleshooter is often the first phone call the injured worker makes to the Workers' Compensation Board to inquire about his or her legal rights. The troubleshooter can help the injured worker resolve payment and other issues with the insurance company, often without getting a lawyer involved. When there is a legal issue, the troubleshooter will encourage the injured worker to talk to an attorney.

Finally, limiting injured workers' attorneys' fees will narrow the pool of qualified lawyers willing to handle these types of cases. This proposal is made under the guise of helping the injured worker, but it is a ruse. Prior to 1992, the employer-insurer had to pay the injured worker's attorneys' fees. Since then, the injured worker has to pay out of his or her own pocket. If the employers and insurers are truly concerned about the injured worker having to pay, they should change the law back to the way it was before.

The proposed changes have received a lot of media attention recently, including a segment on Maine Watch with Jennifer Rooks. In response to a question from Rooks about labor's opposition to the bill, Maine Workers' Compensation Trust Administrator Joseph Edwards stated that the proposed changes "are not to be taken seriously." The Workers' Compensation Board Chair and Executive Director Paul H. Sighinolfi, Esq. stated that while there are some aspects of the current law that could be improved, many of the proposed changes are too extreme. Some have gone so far as to call it a "power grab" by the majority party.

The employer-insurer lobby's attempt earlier in 2010 to revise the law, including eliminating benefits for mental stress injuries, died in committee after compelling testimony from firefighters and police officers stating that many in their field have suffered from post-traumatic stress disorder and other serious emotional disabilities for just doing their jobs. Mental stress injuries are already subject to a heightened burden of proof in Maine.

If you have been injured at work and need to speak with an attorney, call Adrienne S. Hansen at Maine Employee Rights Group, toll free 1-800-490-5218, for a free telephone consultation today.

Today, the California Attorney General's office settled an ongoing lawsuit against a group of car washes for more than $1,000,000. According to the California AG, the case arose because investigators found the car washes denied employees minimum wage and overtime, failed to pay wages to employees who quit or were terminated, and denied employees rest and meal breaks. Investigators also found that the car washes created false employee time records.

"Workers at these car washes were taken advantage of by unscrupulous employers who illegally denied them the pay and benefits they earned," said California Attorney General Kamala D. Harris. "The resolution of this case will allow workers to receive the pay they are owed."

Like California, Maine has laws that entitle employees to minimum wages, overtime pay, rest breaks, and payment of unpaid wages when the employee resigns or is terminated. If you believe your employer is violating your right to any of these things, you should contact an experienced employment lawyer to discuss whether you have a viable claim.

The National Labor Relations Board (NLRB) ruled today that corporations may not force employees to give up their right to bring class actions to enforce their rights.

In recent years, many corporations in the United States have required employees to give up their Constitutional right to use the American court system to hold them accountable when they violate their employees' rights. Many corporations require applicants to sign these arbitration agreements before they'll hire them and sometimes corporations will fire employees unless they sign them. Under these arbitration agreements, instead of a jury or a judge, corporations require employees to bring their claims to arbitration where, usually, one individual paid by the corporation decides the case. Some corporations have gone one step further and, through these arbitration agreements, have taken away employees' rights to bring class actions--and that is what the NLRB's decision forbids.

The NLRB ruled today that arbitration agreements which strip employees of their right to bring class actions violate the National Labor Relations Act (NLRA). The NLRA requires corporations to let employees engage in "concerted activity." The NLRB decided that employees engage in concerted activity when they band together to bring a class action to vindicate the rights of them and their co-workers. Thus, under the NLRA, a corporation cannot require its employees to give up their right to bring a class action.

The NLRB's decision is a victory for employees. If Corporations could eliminate class actions, they could get away with violating employees' rights. For instance, without class actions, a corporation could steal wages from employees by forcing each of them to work 15 minutes per week for free. The corporation knows that few employees are going to complain and risk retaliation just for 15 minutes per week. Class actions prevent employers from engaging in this type of tactic. If employees can bring class actions, then only a small group of them need to complain about wage theft in order to protect the rights of all of their co-workers.