• 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 Supreme Court held in the Epic Systems case that corporations may legally force employees to choose between their jobs and their right to bring class or collective actions for wage theft—which really is not a choice at all. The vast majority of employees cannot refuse their employers’ demands to relinquish their rights to bring class or collective actions  because they cannot afford to lose their jobs.

The Supreme Court Justices split 5-4 in this controversial decision. Justice Gorsuch wrote the Court’s opinion and Justice Ginsburg wrote a dissenting opinion that Justices Breyer, Kagan, and Sotomayor joined. Justice Ginsburg’s dissent described the horrible injustices that will occur due to this wrongly decided case. Because of the Court’s decision, many employees will have no choice but to pursue wage theft claims against their employers on an individual basis, which, as Justice Ginsburg explained, will allow an increasing number of corporations to get away with wage theft.

Justice Ginsburg’s description of the events likely to unfold as result of this decision was spot on:

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Starbucks has decided to institute company-wide training on implicit bias. The company’s decision came on the heels of an incident where Starbucks employees called the police to remove some black people from the store for doing something that white people do all the time. These black people were waiting for a friend before they bought their coffee. It is, of course, possible that conscious racism against black people motivated these employees to call the police. However, it is more likely that implicit bias, motives that people don’t think about but that cause them to act in certain ways, caused these Starbucks employees to call the police.

Psychologists have studied the phenomenon of implicit bias for decades. Pretty much everybody has an implicit bias against certain groups of people and in favor of other groups of people. For instance, regardless of how much they abhor racism, almost everyone who is not black has implicit bias against black people which unconsciously drives their actions when they interact with black people.

One of the consultants assisting Starbucks believes that companies need to implement systems where employees work together to combat implicit bias, as opposed to asking individuals to police their own biases. “Any strategy that essentially relies on people to try not to be biased is doomed to fail; that’s the heart of the problem,” said David Rock, director of the NeuroLeadership Institute. “You’ve got to shift the focus from individuals trying not to be biased to teams being able to catch bias,” he said.

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Our law firm receives many calls from people who are experiencing sexual harassment at work.  They usually want to know their rights and some advice on what they can do to try to get the harassment to stop.  Our firm is happy to help but there is also another resource that everyone concerned about sexual harassment in the workplace should know about – MaineCanDo.org.

MaineCanDo.org sprung out of the #metoo movement.  It contains helpful resources and guidance for individuals and organizations, including victims of sexual harassment and people who want to help victims.  You can go to the website if you want information about your rights and how you can enforce them.  There are also links to resources for victims of sexual harassment, such as the advocates at the Maine Coalition Against Sexual Assault (MECASA).

An increasing number of employers are taking the #MaineCanDo pledge to do more to prevent and address sexual harassment in their workplaces.  MaineCanDo.org also contains a lot of helpful information for employers to assist them in combatting sexual harassment in their workplaces.  If your employer is not on the list of organizations that has taken the #MaineCanDo pledge, you may want to ask your employer if it will take the pledge.

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Bush_signs_in_ADA_of_1990-300x199Last week, a federal judge held that a jury could reasonably find that O’Reilly Auto violated the rights of a Maine Employee Rights Group (MERG) client when it (a) refused to provide him with a reasonable accommodation for his disabilities, (b) discriminated against him because of his disabilities, and (c) retaliated against him for requesting a reasonable accommodation for his disabilities.  Because a jury could reasonably find in favor of MERG’s client, the case will now go to trial and a jury will determine whether O’Reilly Auto violated our client’s rights under the federal Americans with Disabilities Act (ADA) and the Maine Human Rights Act (MHRA). 

In 2015, MERG’s client was the store manager at O’Reilly Auto’s Belfast, Maine store.  MERG’s client lives with the disabling conditions of Attention Deficit Hyperactivity Disorder (ADHD), Tourette Syndrome, and Major Depressive Disorder.  In late May and early June, 2015, MERG’s client worked abnormally long hours because he had to fill in for two employees who had been terminated.  After a couple weeks of working this abnormally long schedule, MERG’s client began to experience dizziness, severe headaches, increased frequency of his pre-existing tics, and fatigue.  On June 4, 2015, MERG’s client had a “meltdown” due to his disabilities during which he experienced a number of new symptoms, including difficulty concentrating. 

MERG’s client went to his health care provider because of this meltdown.  She gave him a note which said that he “should not be scheduled for more than 9 hours 5 days a week” because of his mental health issues and he asked O’Reilly Auto to comply with these restrictions.  In response to concerns raised by O’Reilly Auto about this request, MERG’s client made clear to O’Reilly Auto that even though his health care provider did not want it to schedule him for more than 9 hours per day 5 days per week she agreed that he could work unscheduled hours, on top of his normally scheduled hours, if necessary.  O’Reilly Auto denied our client’s scheduling request because it claimed that he could not perform the essential functions of a store manager with these scheduling requirements. 

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The U.S. Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against Walmart alleging that the company violated the Americans with Disabilities Act (ADA) when it failed to provide a reasonable accommodation to an employee with a disability that worked in Augusta.

According to the EEOC, the employee that Walmart discriminated against developed a disability which rendered her unable to perform any jobs except greeter and fitting room associate. The employee worked in the Augusta store and there were no open greeter or fitting room associate positions in that store. As such, Walmart terminated the employee.

The EEOC argues that Walmart had an obligation, under the ADA, to reassign the employee to another store if another store had open greeter or fitting room associate positions. As it so happens, according to the EEOC, the Waterville EEOC store had an open fitting room associate position that the employee who got fired could have filled.

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A former cheerleader for the New Orleans Saints, Bailey Davis, is suing the team because of policies it allegedly required her and other cheerleaders to comply with to prevent them from being “preyed upon” by male athletes. For example, according to Davis, the Saints prohibited cheerleaders from being in the same bar or restaurant as male professional athletes who played in the NFL or NBA. So, Davis says, if an NFL football player or NBA basketball player entered a restaurant where she was eating, the Saints’ policy required her to leave the restaurant.

Davis was fired for violating a policy that prohibited cheerleaders from posting pictures of themselves on social media where they are nude, seminude, or in lingerie. Davis posted a picture of herself in a lace bodysuit. Davis argues this policy is unfair because the Saints do not prohibit the players from posing topless. “I’m in a swimsuit or in a body suit, it’s seen as something sexual. But the players can post shirtless in their underwear and it’s just seen as athletic,” said Davis.

The whole notion that women must be protected from male NFL and NBA athletes is offensive on a few levels. First, the policy presumes that men and women have to be separated or else they will act inappropriately with one another. This type of justification for segregation among the sexes, sometimes called “benevolent sexism,” should be a relic of a bygone era. Benevolent sexism has been used for decades as a justification to exclude women from certain professions and places in society.

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The U.S. Equal Employment Opportunity Commission (EEOC) announced last month that it had filed a lawsuit against an Arby’s franchisee because of sexual harassment teenage employees had experienced. The Arby’s franchise at issue hired a team leader with a known history of sexual harassment who pressured young female employees to have sex with him, attempted to follow female employees home, and physically injured one of his victims. The EEOC alleges that management knew about the harassment but took no action to stop it for several months.

Unfortunately, the facts of this case are very common. According to a study by the EEOC, young workers are more likely than older workers to work in places where sexual harassment occurs. Sexual harassers often victimize young employees because, due to their lack of work and life experience, young employees are less likely to know their rights, they are less likely to understand typical workplace norms, and they are less likely to complain about older and more powerful people.  The EEOC has a helpful website for young workers that can assist them if they believe their rights are being violated.

The restaurant industry is also a hot zone for sexual harassment. Some of the lowest paid workers in the economy work in restaurants. Harassers know that these low paid workers are especially scared of retaliation if they complain about harassment. Low paid workers often do not have much money saved and if they lose their jobs, they can quickly become destitute. Many restaurants frequently have corporate management located in places far removed from the front line employees and this can lead to harassers feeling less afraid that they will get in trouble.  Alcohol consumption is also more common in the restaurant industry than other industries and that can lead to higher rates of sexual harassment.

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social-media-2786261_1920-300x200A member of the New York City Council has introduced a bill that would prohibit retaliation against workers in the private sector who do not check their email after work hours.  The bill is modeled after a similar law in France that went into effect last year.

“Technology has made it easy for companies and employers to blur the line on the amount of time employers are working,” Councilman Rafael Espinal said in an interview. “The essence and spirit of this bill is to go after employers who are harassing employees to the point they are being retaliated against.”

There is no doubt that due, in part, to technologies like email, text messaging, and cloud computing, many employees can do much of their jobs from anyplace at any time.  And many employers expect their employees to do just that.  But this technology can be both a blessing and a curse.

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non-violence-1160132_1920-300x300This month marks the 50th anniversary of Dr. Martin Luther King, Jr.’s assassination in Memphis.  Dr. King went to Memphis 50 years ago to help black sanitation workers receive fair treatment in the workplace.  The City of Memphis treated black sanitation workers far worse than white sanitation workers.  White sanitation workers, for instance, could shower at work after they finished the filthy job of collecting people’s trash but black sanitation workers could not.  The City also did not provide black sanitation workers with shelter from storms which led to two black sanitation workers getting crushed to death inside of a trash truck where they took shelter during a storm.  To secure better working conditions, the black sanitation workers went on strike.

The union that these black sanitation workers formed back in the 1960s is still around today.  That union is still trying to secure better working conditions for its members, including air conditioning in garbage trucks, better pay, and benefits for temporary employees.

Employment discrimination against black workers has changed a lot since 1968 but racial prejudice against black people still impacts the workplace.  In Memphis, a majority black city, the poverty rate for black residents is twice the poverty rate for white residents.  “I love Memphis. I’m so optimistic about our future,” said Memphis Mayor Jim Strickland. “But I don’t want to act like I’m ignorant of our challenges. Violent crime is way too high. Poverty is way too high.  And too few kids are getting properly educated.”

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dollar-1362243_1920-300x200This week, Maine’s House of Representatives voted down a bill that would have slowed the rise of the minimum wage.  In 2016, Maine voters approved a referendum to increase the minimum wage.  The referendum calls for gradual annual increases up to $12 per hour in 2020.  The bill voted down would have frozen the minimum wage at $10 per hour until 2020 and allowed it to increase by $.50 per hour annually after that.  The bill also would have created a special “youth wage” which would allow businesses to pay younger workers less than older workers.

Supporters of the bill that was voted down point to complaints from some small business owners about rising labor costs which they say will require layoffs and increased prices.  Opponents of the bill pointed out that employment and wage numbers seem to be doing well under the current law; and they, thus, see no reason to change it.  Indeed, in February 2018 Maine’s unemployment rate was 2.9% compared to 4.1% nationally.

Some opponents of this bill have also focused on the fact that the bill runs counter to the will of the voters.  “These are the same citizens who, in the face of gridlock in Augusta, exercised their constitutional right to use the citizen’s initiative process to create law,” Rep. Kent Ackley (I-Monmouth) said. “And that was because the leaders here could not do so.”

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