The Town denied Ms. Burpee a position as a dispatcher. Ms. Burpee had over 19 years experience as a dispatcher at the time she applied for the job. She had worked the previous 8 1/2 years for York County as a dispatcher. Ms. Burpee applied for the job with the Town of Sanford because York County discontinued its dispatch service. The other York County dispatchers who lost their jobs with the County also applied for positions with the Town. The Town offered all of the York County dispatchers jobs except Ms. Burpee. These other dispatchers were 31, 32, 38, and 49 years old.

According to the MHRC Investigator, the Town claimed that it did not hire Ms. Burpee because she had a low score on her Oral Board review. However, the Town hired a 32 year old who had a lower score than Ms. Burpee. It also hired a 34 year old applicant who did not even go through the Oral Board process.

The next step in the MHRC process is for the parties to engage in efforts to resolve the case prior to filing a claim in court.

Mr. Afthim was a superintendent employed by ALR. Mr. Afthim became concerned about a number of safety issues in the warehouse that he ran including the lack of ventilation, the company's decision to use cheaper cotton gloves instead of splinter resistant leather gloves, and the insufficient staffing on the second shift. Mr. Afthim noted that the ventilation was so poor in the warehouse that his employees were inhaling significant amounts of dust and dirt. Mr. Afthim made multiple reports and complaints to ALR's management about the ventilation issue but ALR did nothing. Mr. Afthim also noted that the company's switch to cotton gloves from leather gloves was leading to significant splinters for his employees who spent their days constructing and repairing wooden pallets. Mr. Afthim also brought this concern to ALR without an adequate response. Mr. Afthim then noticed that due to understaffing that the workers on the second shift were rushing to keep up with their duties and he became very concerned that this would inevitably lead to a serious injury such as a fall or an accident with the fork lift. Once again, Mr. Afthim brought his concerns to ALR management and they expressed frustration with him for his complaints. ALR then fired Mr. Afthim for his complaints.

ALR subsequently lied about its reasons for terminating Mr. Afthim's employment and told the Department of Labor and the Maine Human Rights Commission that Mr. Afthim had been terminated for poor performance. Also, Mr. Afthim was forced to disclose ALR's false explanation for his termination to potential employers who would routinely ask why he had been terminated from his last place of employment. As a result Mr. Afthim suffered significant lost wages.

The first step in pursuing a whistleblower retaliation case in Maine is to file a Charge of Discrimination with the Maine Human Rights Commission. Mr. Afthim filed a Charge of Discrimination with the assistance of his attorneys. The Maine Human Rights Commission assigned an investigator and after investigating the case concluded that ALR had unlawfully retaliated against Mr. Afthim.

Mr. Afthim then filed his case in court. The court concluded that 1) Mr. Afthim had been terminated because of his reports about his employees' safety in violation of the Maine Human Rights Act ("MHRA") and the Maine Whistleblowers' Protection Act and then defamed Mr. Afthim which made it all the more difficult for him to find other work. The Court also ALR's actions violated the ("MWPA"), and Maine's common law prohibitation on defamation.

On May 24, 2010, the jury concluded that Mr. Afthim was entitled to $115,000 for lost wages, $200,000 for compensatory damages, and $700, 000 for punitive damages.

Maine's Whistelblower Protection Act, 26 M.R.S.A. Sec. 831 et. seq., prohibits employers from terminating or otherwise retaliating against their employees for making good faith complaints about things that the employee believes to be unlawful and conditions that they reasonably believe put at risk the health and safety of individuals. The Act also protects employees who refuse to carry out directives from their employers that they believe to be unlawful or that they reasonably believe create a risk of serious injury or death to themselves or others. The Act also prohibits employers from retaliating against employees for participating in a public investigation, hearing, or trial. Last, the Act protects workers in the health care field from reporting what they reasonably believe to be deviations from the applicable standard of care.

When a jury finds that an employer has violated an employee's rights in the Maine Whistleblowers' Protection Act, they may award the employee their lost wages and benefits, their attorneys fees, litigation costs, compensatory damages to compensate the employee for the harms and losses associated with the retaliation, and punitive damages to punish an employer.

Mr. Afthim was represented by Peter Thompson & Associates.

In this case, Mr. Duckworth had worked for Mid State Machine ("MSM") for over six years from 1995 to 2002. For most of this time, Mr. Duckworth worked as the facilities' gage control technician. In 2002, Duckworth was laid off in a company wide reduction in force. The layoff had nothing to do with Duckworth's performance and performance evaluations documenting Duckworth's performance during his employment with MSM indicated that he had performed the duties of his job well. In 2005, Duckworth was seeking work and so called MSM to see if they were hiring. Duckworth spoke with four different managers at MSM on five occasions and during these conversations indicated that he was interested in returning to work for MSM if they were hiring. Duckworth also provided MSM with a copy of his resume.

In fact, during this time in 2005, MSM was seeking to fill Duckworth's old gage control technician position. MSM's managers did not mention to Duckworth that the gage control technician position was open. MSM's hiring manager was made aware of Duckworth's interest in returning to work for MSM and claims that he initially considered Duckworth for the position but subsequently decided to hire a much younger and less experienced candidate instead of Duckworth. The reasons giving by MSM's manager for hiring the much younger and inexperienced candidate over Duckworth are in dispute and Duckworth alleges that the reasons given by MSM for their failure to hire him are untrue and pretexts.

After deciding not to hire Duckworth for the position, MSM did not inform Duckworth that he had been passed over a position. Rather, when Duckworth did speak with the hiring manager, the hiring manager merely indicated that MSM had nothing for Duckworth at that time and made no mention of the open position, the fact that the hiring manager had given some initial consideration to hiring Duckworth for this open position, or that he had filled the position with someone else. Because Duckworth had no knowledge that he had been passed over for hire into an open position, Duckworth did not make further inquiry about the reasons that he was passed over for the position and did not file a Charge of Discrimination.

In 2008, Duckworth again expressed interest in working for MSM and was interviewed for his gage control technician position but again was passed over for a younger and less experienced candidate. Based on the interview process and statements made to Duckworth during the process, he suspected age discrimination and filed a Charge of Discrimination with the Maine Human Rights Commission and Equal Employment Opportunity Commission. In the context of the Maine Human Rights Commission investigation, Duckworth learned for the first time in late 2008 of the open gage control position in 2005 and the fact that he had been passed over for this position. Upon learning this information, Duckworth amended his Charge of Discrimination to allege a claim of age discrimination with respect to the 2005 hiring decision as well as two subsequently hiring decisions in 2006 and 2007. Duckworth then filed suit in United States District Court in June 2009 alleging unlawful age discrimination in hiring under the Maine Human Rights Act and Age Discrimination in Employment Act for MSM's failure to hire him into open gage control technician positions in 2005, 2006, 2007, and 2008.

A Motion for Partial Summary Judgment from MSM followed in which MSM argued that Duckworth had missed his 6 month deadline for filing a Charge of Discrimination with the Maine Human Rights Commission, 300 day deadline for filing a Charge of Discrimination with the Equal Employment Opportunity Commission, and the two year statutes of limitations for filing Maine Human Rights Act and Age Discrimination in Employment Act claims in court in connection with his 2005, 2006, and 2007 claims. MSM's position was premised on the argument that the deadlines for filing Charges and claims in Court began to run when Duckworth was passed over for hire, i.e. in July 2005 for his 2005 failure to hire claim.

Duckworth argued that his claims were timely. Duckworth's claim of timeliness was based on the argument that the deadlines for filing Charges and claims in Court did not began to run until he received "authoritative and unambiguous notice" in late 2008 that there had been an hiring decision and that he had been passed over for an open position and that since MSM's manager had been less than honest with him about the fact that there had been an open position in 2005 that MSM should be "equitably estopped" from asserting that Duckworth had missed his deadlines since this was due to MSM's failure to provide Duckworth with all of the relevant information.

In its April 4, 2010 decision, the denies MSM's Motion for Partial Summary Judgment with respect to the 2005 failure to hire claim. The Court holds that in situations such as this one where an applicant is misled about the availability of an open position that the deadlines for filing Charges of Discrimination and the statutes of limitation for filing one's claims in court do not begin to run until the employee learns that they were passed over for the position in question. The Court also held that in situations such as this where an employer misleads a job candidate with regard to whether they have been passed over for a particular position that the employer is "equitably estopped" from asserting a statute of limitations defense based on the period of time that the candidate is unaware of the fact that they were passed over for the position in question. Based on these conclusions, the Court found that Duckworth's 2005 failure to hire claims were timely even though he did not file his Charges of Discrimination until over three years after the 2005 hiring decision and did not file his claims in court until almost four years after the hiring decision. The Court's decision rejected portions of a previous Recommended Decision by the Magistrate Judge.

Under the court's ruling, deadlines for filing an employment discrimination claim should not begin to run for persons who are not aware that they have been subjected to an adverse employment action until they receive "authoritative and unambiguous notice" of the adverse employment action, at least when their lack of knowledge is due to an employer's misleading statements. Therefore, persons should not necessarily assume that if they learn that they have been subjected to an adverse employment action such as a failure to hire or failure to promote after the 300 day deadline for filing a Charge of Discrimination with the Maine Human Rights Commission and Equal Employment Opportunity Commission or after the statute of limitations has run for filing their claims in court that it is too late to bring a claim. Instead, they should consult experienced an employment lawyer.

You should know that an employer can terminate you for missing work because you are sick unless you fall under protections for employees with disabilities, workplace injuries, or serious health conditions. If you believe your employer has terminated you unfairly because you missed work due to your own health problems, or the health problems of a family member, you should contact an experienced employment lawyer.

Senators Collins and Snowe have signed a letter to the Director of the Office of Management and Budget, Peter Orszag, expressing concerns that they have with this "High Road" policy. Among other things, they are concerned that the policy would adversely affect small businesses.

While it is illegal for employers to retaliate against truck drivers who refuse to violate the law, or complain about violations of the law, it is sometimes hard to prove such retaliation took place. It is even harder to prove retaliation took place if you do not have a good lawyer on your side. So, if you believe that your employer is going to retaliate against you, or has already retaliated against you, you should contact an experienced employment lawyer who is knowledgeable about the STAA and Maine's WPA.

On December 19, 2009, President Obama signed the Defense Appropriations bill into law. The bill included an amendment added by Minnesota Senator Al Franken and referred to as the "Franken Amendment" that precludes employers who enter into contracts with the Department of Defense from entering into pre-dispute "agreements" with their employees that require the employee to give up their right to pursue harassment and discrimination claims under Title VII in court in favor of private binding arbitration. The new law also prevents defense contractors from enforcing already existing pre-dispute arbitration agreements.

The amendment was prompted by the gang rape of a KBR/Halliburton employee in Iraq by her coworkers. When the employee attempted to pursue a claim against her employer in court the employer, KBR, kept her claim out of court by using a fine print agreement that it had required her to sign when she started work with KBR waiving her right to a jury trial and instead agreeing to submit all claims against KBR to a private and confidential arbitration run by KBR.

The KBR case reflects a growing trend as more and more employers have come to require their employees to sign away their right to pursue civil rights claims in court as a condition of their employment.

Speaking in support of the amendment, Senator Franken stated, "Arbitration is conducted behind closed doors, doesn't allow you a jury of your peers, and fails to establish precedent. Many of our nation's most cherished civil rights were established by individuals bringing claims in court. Arbitration has its place in our system, but handling claims of sexual assault and egregious violations of civil rights is not its place."

The new law precludes employers from compelling arbitration with respect to "all claims arising under Title VII of the Civil Rights Act of 1964, any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention."

This law is the first of its kind. Employee advocates are hopeful that the passage of the Franken Amendment will lead to additional legislation guaranteeing employees their day in court. Another more broadly worded bill called the Arbitration Fairness Act would preclude pre-dispute agreements waiving a party's right to pursue claims in court in all employment disputes, consumer disputes, and civil rights claims. This bill is currently pending in the House and Senate.

Mainers should know that, if Mr. Grard was not in a union, he would have no claim for wrongful termination. In Maine, it is not illegal for a private employer to discriminate against someone because of their political beliefs. If you think that is wrong, you should contact your representatives in the Maine legislature.

The Equal Employment Opportunity Commission (EEOC) is the federal agency that will enforce GINA. However, before contacting the EEOC with a complaint about a violation of GINA, you should consult with an attorney experienced in representing employees.

Under the FMLA, an employee may take leave because of a qualifying exigency that is a consequence of his spouse, son, daughter, or parent being called to active military duty. Such exigencies include the need to arrange for alternative childcare, to attend official military ceremonies, to make legal and financial arrangements, and to attend counseling. Prior to the new amendments, only employees whose family members were in the Reserves or the National Guard could qualify for this leave. Under the new FMLA amendments, employees whose family members are in the regular Armed Forces may take leave for these exigencies when the family member is deployed to a foreign country.

An employee may take leave to care for a servicemember with a serious injury or illness that he incurred while on active duty. Before the recent amendments to the FMLA, only family members of current members of the Armed Forces (including the National Guard and Reserves) could take this leave. The amendments have now expanded the FMLA to cover the family of veterans, so long as the veteran was a member of the Armed Forces at some point during the five year period before he began seeking treatment for his serious injury or illness. The amendments also expanded the definition of serious injury or illness to include conditions that predate a servicemember's active duty if active duty aggravated the condition.

The Investigator's Report indicates that Ms. Vannah had worked for these employers since 2005 as a cook and then manager at a cafeteria operated in a Lewiston Wal-Mart distribution center. In March 2007, Ms. Vannah suffered a severe stroke which adversely affected her speech and ability to use her arm. Ms. Vannah began a long rehabilitation that has assisted her to regain her ability to speak and use her arm. After some rehabilitation, Ms. Vannah returned to work. She was given fewer hours than she had worked before and was not allowed to be a manager. On February 19, 2008, an accident occurred that resulted in cooking oil being spilled on the floor of the kitchen. Ms. Vannah denied being involved in the accident. Nonetheless, her employer told Ms. Vannah that the accident was her fault and told her that she was terminated and could only return when she was 100%. A supervisor then completed a termination form which indicated that the reason for Ms. Vannah's separation was "medical" reasons. Ms. Vannah argued and the Maine Human Rights Commission agreed that the statement by the supervisor made it clear that they were holding Ms. Vannah's disability against her and that the employers' actions amounted to a termination because of her disability.

The employers later denied that Ms. Vannah's brain injury had anything to do with her separation and instead claimed that Ms. Vannah was a bad employee who misbehaved and had engaged in unsafe behavior and that these were the reasons for her separation. The employers also argued that Ms. Vannah had left voluntarily. The investigator's report points out that the employers had failed to provide any documentation, specific information, or other evidence to show that Ms. Vannah had misbehaved or engaged in "unsafe behavior". The investigator also pointed to the fact that at the time of the oil spill that employers' supervisor had told Ms. Vannah that she was done working until she was "100%".

On the basis of this evidence, the Maine Human Rights Commission Investigator's Report concluded that there were reasonable grounds to believe that the employers had committed unlawful disability discrimination that violated the state Maine Human Rights Act ("MHRA") and federal Americans with Disabilities Act ("ADA").

The respondents also argued that New England Vending, Inc. was not Ms. Vannah's employer and rather was leasing her and other employees from World Wide Personnel of Maine, Inc. and that Ms. Vannah had not named World Wide Personnel soon enough in the investigation process. The investigator concluded that New England Vending and World Wide Personnel of Maine were an "integrated enterprise" subject to joint liability because they had an interrelation of operations, common management, and centralized control of labor relations and so both were liable and appropriately named defendants. The investigation also concluded that TRSG, Inc. was a successor in interest to World Wide Personnel of Maine and so also liable for any disability discrimination.

This case highlights the scope of the new Maine Human Rights Act that includes in its definition of disability all "acquired brain injuries" which include brain injuries resulting from strokes and accidents. Therefore, any employee in Maine who has an "acquired brain injury" is entitled to the protections of the Maine Human Rights Act, cannot be discriminated against on the basis of their brain injury, and must be provided with reasonable accommodations for their brain injury. The investigation also confirmed that in a circumstance where an employer tells an employee that they cannot return to work until they are "100%" that this amounts to a constructive discharge of the employee even if the employee is not formally terminated. Ms. Vannah is represented by Peter L. Thompson and Chad T. Hansen from Peter Thompson & Associates.