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  • 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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Agreeing to “terms and conditions” of participation has become a near-daily occurrence in the modern world. We communicate assent to terms and conditions when we sign the lease for a new apartment, order food from a delivery site, and click a box stating “I agree to the terms and conditions” when visiting many websites. The list goes on. One place where terms and conditions are especially prevalent is when people start new jobs. Often, mandatory arbitration clauses are hidden in the stack of paper that employees are required to sign at the outset of employment.  Employees are rarely provided with any notice or explanation regarding the significance of agreeing to mandatory arbitration. In this context, millions of Americans have given up their right to a day in court and to have their claims of discrimination and retaliation heard and addressed by a jury of their peers. The U.S. Supreme Court recently gave a small victory to these employees.

This victory came in the case of Morgan v. Sundance Inc. In this case, Morgan sued her employer, a Taco Bell franchise owner, for improperly compensating her for overtime worked. Morgan filed suit in court and Sundance answered her complaint and engaged in litigation with Morgan. Eight months into litigation, Sundance tried to stop the litigation and dismiss the case from court and instead start the process over in a private arbitration pursuant to an arbitration agreement signed by Morgan.

In this case, Sundance argued that arbitration agreements are special and are not subject to the normal rules governing contracts between parties. The Supreme Court disagreed and held that arbitration agreements do not receive special treatment and that if Sundance waived its right to litigate the case in arbitration under the contract by delaying in asserting this right under standard contract law then it was too late to force arbitration. In other words, arbitration agreements are not special in some sense that renders them exempt from standard contract law principles.  Prior to this case, the Supreme Court had consistently found in favor of employers seeking to use arbitration agreements to bar employees from bringing their claims in court.  In this context, this small victory is particularly meaningful.

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On April 20, 2022, the United States District Court for the District of Maine entered a Judgment in favor of Erin Papkee and against her former employer MECAP d/b/a Milk Street Capital, a real estate investment company in Portland, Maine, and Scott Lalumiere, the primary shareholder and manager of MECAP. Leading to this Judgment, on February 18, 2022, the Court granted the majority of Plaintiff’s Motion for Summary Judgement and concluded that MECAP and Lalumiere violated the plaintiff’s rights under both the Maine Whistleblowers’ Protection Act (MWPA), 26 M.R.S. §§831 et seq., as enforced through the Maine Human Rights Act (MHRA), 5 M.R.S. §§ 4551 et seq., and the anti-retaliation provision of the Fair Labor Standards Act (FLSA). These laws prohibit retaliation against employees who make reports to their employer or a government entity in good faith including reporting conditions or practices that they reasonably believe to be a violation of law, reporting conditions or practices that they reasonably believe to violate wage and hour laws such as when an employee is incorrectly paid as a contractor or misclassified, and bringing claims in court to enforce their rights under these laws.

 

In ruling in Ms. Papkee’s favor on summary judgment, the Court found that Ms. Papkee engaged in protected activity under the MWPA and FLSA when she objected to and opposed Lalumiere’s alleged attempt to defraud the court in a separate lawsuit and was forced to resign in retaliation for this protected activity.  The Court also found Ms. Papkee was subjected to unlawful retaliation when MECAP and Lalumiere brought baseless retaliatory counterclaims against her in response to her initial lawsuit.

 

In its April 20, 2022 Order, the Court awarded Ms. Papkee her lost wages which totaled $113,250. The Court also awarded Ms. Papkee $37,500 in compensatory damages for the stress and hardship she suffered as a result of the unlawful termination, and $4,968 in consequential damages. The Court also awarded Ms. Papkee $37,500 in punitive damages. Punitive damages are awarded to punish an employer-defendant when the evidence reflects that they knowingly or recklessly violated an employee’s protected rights.  In addition, the Court awarded Ms. Papkee attorneys fees in the amount of $25,500 for a total judgment of $218,718.  Ms. Papkee is represented by Chad Hansen and Ryan McClure of the Employee Rights Group.

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On January 21, 2022, the Maine Business and Consumer Court entered a Judgment in favor of Anthony Nadeau and against his former employer T.R. Sign Design, Inc. a sign fabrication and installation company in Portland, Maine.  The Court concluded that T.R. Sign Design violated the plaintiff’s rights under the  Maine Whistleblowers’ Protection Act (MWPA), 26 M.R.S. §§831 et seq., as enforced through the Maine Human Rights Act (MHRA), 5 M.R.S. §§ 4551 et seq.  These statutes prohibit retaliation against employees who make reports to their employer or a government entity in good faith including reporting conditions or practices that they reasonably believe to be a violation of law and reporting conditions or practices that they reasonably believe to pose a threat to their own health and safety or the health and safety of others.

The Court found that Mr. Nadeau engaged in protected activity under the MWPA when he reported that a truck he was asked to drive for work lacked valid registration, insurance, or inspection sticker and that Mr. Nadeau also engaged in protected activity by refusing to follow his employer’s unlawful directive to drive the uninspected, unregistered, and uninsured truck. Mr. Nadeau was subjected to unlawful retaliation when he was fired for making the protected report and refusing to drive the truck in question.

The Court awarded Mr. Nadeau his lost wages which totaled $11,223. The Court also awarded Mr. Nadeau $20,000 in compensatory damages for the stress and hardship he suffered as a result of the unlawful termination. Last, the Court awarded Mr. Nadeau $50,000 in punitive damages. Punitive damages are awarded to punish an employer-defendant when the evidence reflects that they knowingly or recklessly violated an employee’s protected rights. In its judgment, the Court noted the egregious nature of the Defendant’s conduct of repeatedly disregarding the law and the fact that the amount of compensatory damages was inadequate to punish the Defendant. The Court also noted that the award of punitive damages was designed to both to punish the Defendant and to deter or prevent other employers from similar conduct in the future. Mr. Nadeau is represented by Chad Hansen and Ryan McClure of the Employee Rights Group.

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It is not uncommon for an employee experiencing whistleblower retaliation or discrimination to audio record the employer’s managers, supervisors, and co-workers for later use in a lawsuit against the employer. Employers will naturally request those recordings during the discovery process. Fortunately, Maine courts have long recognized that an employee may obtain a court order allowing the employee to withhold audio recordings of employer witnesses until after the employee’s counsel has taken the deposition of the recorded employer witness. This is known as the Manske Order, based on the case of Manske v. UPS Cartage Services, Inc., 789 F. Supp. 2d 213, 214 (D. Me. 2011). The benefit of a Manske Order is that it acts as a truth serum to unscrupulous employer witnesses that may try to tailor testimony to avoid liability.

But, can an employer withhold an employee’s handwritten notes until after the employer’s counsel has taken the employee’s deposition?

According to the Federal District Court, District of Maine, no, an employer may not obtain a Manske Order allowing it to withhold an employee’s handwritten notes until after the employee’s deposition.

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Can an employer waive the statutory limitation on liability provisions of the American with Disabilities Act (ADA) and Maine Human Rights Act (MHRA) which limits the amount an employee can recover in a lawsuit for disability discrimination?  Put more simply, can a damages cap be waived?

The Federal District Court, District of Maine answered that question in the affirmative. Damages caps can be waived if the employer fails to plead them as an affirmative defense.

On March 15, 2022, in the case Brian Bell v. O’Reilly Auto Parts, LLC., the Court denied Defendant’s Motion to Reduce the Jury’s Verdict, holding that because the employer failed to plead the statutory limitation on liability as an affirmative defense, the employer waived the damages cap provided for under both the ADA and the MHRA, leaving Mr. Bell’s $867,000 jury verdict completely intact.

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Yesterday, the First Circuit ruled in favor of the Maine Employee Rights Group’s (MERG) client Brian Bell in a disability discrimination case.  MERG attorney Allan Townsend argued to the First Circuit that the trial judge gave an erroneous jury instruction during the trial and the First Circuit agreed.  As a result, there will be a new trial in this case against O’Reilly Auto.

The trial judge gave the erroneous jury instruction when he instructed the jury on Mr. Bell’s failure-to-accommodate claim.  Both federal and state law require employers to provide disabled employees with “reasonable accommodations.”  Reasonable accommodations include things like modified schedules, medical leave, and alterations to the work environment to make it accessible.  Mr. Bell, who worked as a Store Manager, requested an adjustment to his schedule as a reasonable accommodation for his mental disabilities.  He requested the schedule adjustment because he was experiencing high levels of stress due, in large part, to the fact that he had had to work extremely long hours because his store was short staffed.

The erroneous jury instruction required MERG to prove that its client “needed an accommodation to perform the essential functions of his job.”  During the trial, Mr. Bell testified that if O’Reilly had adjusted his schedule as he requested, he would still “find a way” to work as many hours as necessary to get the job done and that he would work outside of his scheduled hours if necessary.  O’Reilly’s attorney, relying on the erroneous instruction, argued to the jury that Mr. Bell did not actually need the accommodation he requested because Mr. Bell testified that he could work as many hours as necessary.

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The U.S. District Court of Maine has denied a motion filed by national employment defense firm Littler Mendelson in which Littler attempted to persuade the court to make it more difficult for workers to bring discrimination lawsuits.  The case involves allegations that Modula, Inc. discriminated against the Maine Employee Rights Group’s (MERG) client on the basis of her sex and age and also that it retaliated against her for opposing the company’s discrimination.  Littler argued that the Court should dismiss the sex and age discrimination claims because the allegations in the Complaint were not sufficient to state a claim for relief on those claims.

The court rejected Littler’s argument and ruled that the Complaint alleged sufficient facts to state a claim for relief.  The court clarified that when a Complaint alleges facts sufficient to state a “prima facie case” of discrimination, that is enough to state a claim and for the case to move forward.

The court found that the Complaint in this case sufficiently alleged a prima facie case of age discrimination because it included allegations that (1) MERG’s client was 49 years old when she was fired, (2) she was qualified for the position she held, (3) she was fired, and (4) Modula hired a 33-year old person with less experience to replace MERG’s client.  The court found that the Complaint sufficiently alleged a prima facie case of sex discrimination because it included allegations that (1) MERG’s client is a woman, (2) she was qualified for the position she held and was an exemplary employee, (3) she was fired, and (4) Modula hired a man with less experience to perform the job.  The court found that these facts were more than sufficient to state a claim for relief and permit the case to move forward.

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State and Federal laws prohibit discrimination in hiring. Illegal discrimination occurs when an employer fails to hire due to a job applicant’s age, race, national origin, religion, gender, sexual orientation, disabilities, and other protected traits. Discrimination during the hiring process can often be subtle or overlooked.  Employees should be concerned if asked questions that relate to classes protected by discrimination laws. Questions about an applicant’s disabilities, medical information, or use of medical leave may reflect discriminatory motives. If an employer asks about any medical history, or implies that they have concerns about a medical condition, this may evidence discrimination.  Hannaford Supermarkets are in the process of hiring substantial numbers of employees in the context of the pandemic.

Hannaford has reportedly hired more than 2,200 store employees since mid-March and has announced plans to hire about 2,000 more associates at stores across its five-state footprint of Maine, New Hampshire, Vermont, New York and Massachusetts according to the Portland Press Herald. As part of the hiring effort, Hannaford has indicated that it was working with major employers in the hospitality, tourism and retail fields to offer furloughed workers full- and part-time store-level job opportunities, including temporary positions. While Hannaford’s hiring binge may be good news for many, one of the questions asked of applicants is concerning. Hannaford’s application asks applicants: “Are you currently on layoff status, leave of absence or otherwise suspended from employment and subject to recall by another employer?  If “yes,” give all details.” This question means that applicants who are on legally protected medical leave may be required to disclose the leave and the reasons for taking it. To the extent that Hannaford’s question elicits information regarding employee’s protected medical leaves and related disabilities and other medical conditions this could lead to unlawful discrimination in hiring.

If you have applied for a position, that you were otherwise qualified for, and you were not offered a job after answering a question such as this, please contact Employee Rights Group for a free consultation.

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On March 30, 2020 the  National Labor Relations Board (“NLRB”) affirmed the conclusion of a NLRB Administrative Law Judge that Maine Coast Memorial Hospital (“MCMH”) discriminated against Karen Jo Young in violation of the National Labor Relations Act (“NLRA”) when it terminated her for writing a letter to the editor of the Ellsworth American “discussing staffing shortages at the hospital and the impact on her and her coworkers’ working conditions, and expressing support for the Ellsworth nurses’ union’s efforts to improve staffing levels.”  The NLRB’s three member board found, unanimously, that MCMH and Eastern Maine Health Systems (“EMHS”) which is now named Northern Light, had maintained an unlawful media policy at MCMH and other EMHS facilities including Acadia Hospital, Blue Hill Memorial Hospital, CA Dean Memorial Hospital, Eastern Medical Center, Inland Hospital, Lakewood Continuing Care Center, the Aroostook Medical Center, and VNA Home Health & Hospice, which precluded employees from communicating with the news media on topics relating to MCMH/EMHS.  The unlawful policy stated:

No EMHS employee may contact or release to news media information about EMHS, its member organizations or their subsidiaries without the direct involvement of the EMHS Community Relations Department or of the chief operating officer responsible for that organization. Any employee receiving an inquiry from the media will direct that inquiry to the EMHS Community Relations Department, or Community Relations staff at that organization for appropriate handling.

According to the NLRB decision, this media policy was used as the basis to terminate Ms. Young for her letter to the editor.  According to the NLRB, the termination discriminated against Ms. Young for engaging in concerted, protected activity and for engaging in union activity.  According to the portion of the ALJ’s Decision affirmed by the NLRB, Ms. Young was not in a union at the time that she wrote the article but was nonetheless protected by the NLRA because she was speaking out regarding concerns about staffing levels that she believed were having an impact on patient care and also adversely impacting the working conditions of employees including Ms. Young.  The NLRB has ordered MCMH to reinstate Ms. Young to her position, pay her back pay with interest, cease and desist from using a Media Policy like the one that was in place when Ms. Young was terminated, and notify employees of the NLRB decision. The NLRB also mandates that MCMH and Northern Light post a notice at MCMH, Acadia Hospital, Blue Hill Memorial Hospital, CA Dean Memorial Hospital, Eastern Medical Center, Inland Hospital, Lakewood Continuing Care Center, the Aroostook Medical Center, and VNA Home Health & Hospice which contains, among other things, assurances that MCMH and Northern Light will not retaliate against employees in the future for exercising rights protected by the NLRA.

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Sexual Harassment is a major problem in the restaurant industry. According to a recent study, as many as 90% of women and 70% of men working in the Restaurant industry have experienced some form of sexual harassment. In the U.S., more sexual harassment claims are filed in the restaurant industry than in any other. Harassment of service workers by managers, coworkers, and, even, customers is insidious and rampant. A new legal defense group, called TIME’S UP, has taken aim at this pervasive problem and is standing up to one of the world’s most recognizable restaurant brands – McDonald’s.

Formed by over 300 actresses, agents, writers, directors, producers and entertainment executives, The TIME’S UP legal defense fund is resolved to extend the muscle of the #MeToo movement and combat sexual harassment in Hollywood as well as in blue collar professions like janitorial services, nursing, farming, manufacturing, and hospitality, including the restaurant industry. TIME’S UP will support new legislation aimed at achieving gender equality; penalizing companies that don’t take action against harassment; and discouraging the use of nondisclosure agreements to silence victims of harassment.

This week, TIME’S UP announced the filing of 23 new complaints against McDonald’s. In the filings, workers accuse McDonald’s of gender-based discrimination, sexual harassment in the workplace, and retaliation for speaking up. Director of TIME’S UP, Sharyn Tejani said victims of sexual harassment are often in a position where they must “put up with the harassment,” or “lose the paycheck that’s keeping you in a house or keeping groceries on your table.”

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