• 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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Workers’ rights advocates in Maine have focused their attention on paid sick leave. The Portland City Council is currently considering legislation proposed by the Maine Women’s Lobby and Southern Maine Worker’s Center which would require employers to give all employees paid sick time. The new law would require Portland businesses to provide employees with one paid sick hour for every 30 hours worked. Mayor Strimling supports the bill.

At the state level, advocates are collecting signatures to put the issue of paid sick leave on the ballot next election. This proposal also would require employers to provide one paid sick hour for every 30 hours worked. The Maine People’s Alliance is spearheading the collection of signatures for this ballot measure.

“I’m proud to be part of a group of worker, family and health care advocates who have taken the first step in submitting language for a referendum to guarantee access to earned paid sick days for all Maine workers,” said Jennie Pirkl, organizing director at the Maine People’s Alliance.

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In Buffalo N.Y. a small group of nursing and health care facilities, Absolut Care LLC, will pay $465,000 to settle a pregnancy and disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

The suit charges Absolut Care with failing to accommodate disabled workers, denying leave as an accommodation, refusing to allow disabled employees to return to work with medical restrictions. Absolut Care subjected employees to unacceptable and intrusive inquiries and examinations regarding their disabilities. The suit further charges Absolut Care with terminating employees on the basis of pregnancy and completely failing to accommodate the medical restrictions of pregnant employees.

The facts as alleged in the suit reflect a clear violation of the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 as amended by the Pregnancy Discrimination Act. Under Federal Law, employers have an affirmative duty to accommodate employees with disabilities. Medical leave may constitute a reasonable accommodation. It is illegal and unacceptable to fire an employee for using reasonable accommodations including medical leave. Prior to termination of employment, the laws require an employer to evaluate whether an employee out on an extended medical leave may be able to perform the essential functions of the job with accommodation such as additional leave or job modifications that would allow her to safely return to work.

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The news organization Reuters recently reported on an Amazon HR project to develop artificial intelligence to screen job applicants’ resumes. Amazon wanted a computer to use an algorithm to select the top five applicants from a pool of hundreds. What it found, however, is that the algorithm disproportionately screened out well-qualified women.

The people who worked on this project for Amazon developed an algorithm that looked for certain words which appeared in the resumes of employees who Amazon had hired and who, presumably, proved to be good employees. The problem is that, historically, Amazon and other tech companies have disproportionately hired men. And, what Amazon learned through this project, is that men and women use different terminology in their resumes. For instance, men were more likely to use terms like “executed” and “captured” in their resumes. Needless to say, whether you use a term like “executed” in your resume is not a good predictor of whether you’re going to be a good employee.

Regardless of Amazon’s failed experiment, many companies are forging ahead with A.I. hiring processes. For example, one firm has developed software that will analyze candidates’ facial expressions and speech during video recorded interviews.

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This week Lincoln County Administrator Carrie Kipfer informed County Commissioners of a change to the rules for the Maine Public Employee Retirement System (PERS) that would require it to treat retirees that it employed differently than non-retirees.  Ms. Kipfer expressed concern that this rule change could result in age discrimination.  Under this PERS rule (Ch. 803 sec. 14), a retiree who is receiving PERS benefits that returns to work for an employer that participates in PERS must either stop receiving benefits or incur a greater PERS deduction from her pay than non-retirees who work for the employer.

“There are great benefits to hiring people who have experience,” said Ms. Kipfer. “This is unfair to them, because they’ve already paid their dues and won’t be getting anything else from the system.”  To illustrate her point, Ms. Kipfer cited the example of a retired deputy sheriff that the county had rehired a few years ago.  This deputy sheriff no longer works for the county but if he did, this new rule would discourage him from working.

This new PERS rule follows a contentious debate in the legislature earlier this year when lawmakers debated whether to prohibit retirees from collecting pension benefits if they returned to work for an employer in PERS.  Under existing law, there are already limitations on retirees’ ability to return to work.  Retirees can only return to work for a limited number of years and there are limitations on how much they can be paid.  The proposed legislation to prohibit retirees from returning to work was not passed during the last legislative session.

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This week, the U.S. Third Circuit Court of Appeals resurrected a class action lawsuit which alleges that the Southeastern Pennsylvania Transportation Authority (SEPTA) violated the Fair Credit Reporting Act (FCRA) when it refused to hire applicants based on their criminal history reports without first giving the applicants a chance to review the reports.  The FCRA regulates how companies may use consumer reports for a variety of purposes, including hiring.  And the FCRA has a broad definition of the term “consumer report” which includes criminal history reports.  Under the FCRA, employers must provide copies of criminal history reports to applicants and give them notices about their rights under the FCRA before they refuse to hire them based on their criminal history reports.

SEPTA argued that the plaintiffs in this case suffered no actual harm from SEPTA’s violation of the FCRA because the plaintiffs do not dispute the accuracy of the criminal history reports and the crimes they committed disqualified them from employment.  The Third Circuit rejected this argument, in part, because the FCRA not only protects an applicant from suffering harm due to an erroneous consumer report; it also gives him the opportunity “to advocate for [the report] to be used fairly—such as by explaining why true but negative information is irrelevant to his fitness for the job.”

The trial court had dismissed the case and, as such, this Third Circuit victory breathed new life into the case.  Ossai Miazad, the lead attorney for the plaintiffs, said, “this is a significant victory for our clients, who first challenged SEPTA’s unfair background check hiring policies and practices in 2016.  This ruling is an important affirmation that a defendant like SEPTA cannot block access to the court and cannot avoid scrutiny of their actual employment practices that serve to unfairly deny employment to individuals like our clients who have paid their debt to society.”

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This week a federal judge in Connecticut held that an employer violated a medical marijuana user’s rights when it refused to hire her due to a positive drug test.  The woman uses medical marijuana, which is legal in Connecticut, to treat her post-traumatic stress disorder (PTSD).  The woman sued the employer under a state law that prohibits employment discrimination against medical marijuana users.

The employer argued that it had to refuse to hire the woman because it is a federal contractor subject to the requirements of the Drug Free Workplace Act (DFWA).  The court held that the DFWA requires employers to make a “good faith effort” to maintain a drug free workplace but it does not require drug testing.  The court also held that the DFWA does not prohibit a federal contractor from employing someone who uses illegal drugs outside of the workplace.

The employer next argued that the federal False Claims Act (FCA) prohibits it from employing someone who uses marijuana.  The court rejected this argument because no federal law prohibited the employer from employing someone who uses medical marijuana outside of work.

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Governor LePage recently signed onto a brief filed with the U.S. Supreme Court that asks the Court to review and overturn a decision from the U.S. Sixth Circuit Court of Appeals which held that federal law prohibits employment discrimination against transgender workers. The Sixth Circuit’s holding does not apply to Maine because it covers only certain states in the Midwest. Furthermore, Maine state law explicitly prohibits discrimination against transgender workers. Thus, one should ask why Maine’s governor would get involved in this fight since, no matter what the U.S. Supreme Court does, transgender Mainers will still be protected from employment discrimination.  It certainly looks like he got involved because he thought hostility toward transgender people could help him politically.

The Sixth Circuit is not alone in holding that laws which prohibit sex discrimination cover discrimination against transgender people. For example, the Eleventh and Seventh Circuit Courts of Appeals have both found that discrimination against someone because they are transgender is sex discrimination.

Some have warned that LePage’s needless attack on transgender workers could hurt Maine’s efforts to attract workers from other states to move here. “Viewed simply from an economic development and workforce perspective, these actions aren’t helpful,” said Ed McKersie, founder and president of the Portland staffing and recruiting firm Pro Search Inc. “We want everyone to see our state as welcoming, especially when workforce retention and attraction are so critical to the future of Maine.”

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A federal judge has recently ruled that he had no choice but to dismiss the wage theft claims of thousands of Chipotle employees because of the Supreme Court’s decision from last year in Epic Systems v. Lewis.  In order to keep or get their jobs with Chipotle, the company forced these employees to give up their right to band together in a class action against the company.  Many of these employees did not even realize they were giving up this right.

Now, in order to pursue their claims, these workers will have to file claims individually against the company through arbitration.  Their claims range from $50 to a few thousand apiece.  The company obviously knows that someone with a small claim is not going to shoulder the burden of pursuing a claim against the company.  That is the whole point of the class action waiver—to allow the company to get away with wage theft.  Luckily for these employees, the attorneys representing the class are willing to represent these individuals in arbitration.

As a result of the Epic Systems decision, lawyers that represent workers are going to have to find ways to combat wage theft without the efficient mechanism of a class action.  One possible way they can do that is through the use of a legal argument called “offensive collateral estoppel.”  Theoretically, using this legal argument, attorneys for workers can (1) bring one worker’s claim against a company that has engaged in widespread wage theft, (2) get a ruling from an arbitrator in the worker’s favor on that claim, and (3) then use that ruling to argue that every subsequent worker who brings the same claim against the company should prevail.  Even if this legal argument works, it is way more difficult and cumbersome for workers and their attorneys.  Again, that is the whole point.  Companies want to make it as difficult as possible for workers to hold them accountable for wage theft—and SCOTUS has become complicit in this scheme.

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Earlier this month, the U.S. First Circuit Court of Appeals held that a trial court in Puerto Rico erred when it determined that a worker failed to present sufficient evidence to support her claims of ageist harassment and retaliation.  The trial court had thrown the worker’s case out because the trial judge did not think a jury could reasonably find that the company had violated the worker’s rights.  The First Circuit found that the trial court inappropriately prevented this case from going to trial.

The worker presented evidence to the trial court that her managers called her “vieja,” which means old in Spanish; “useless;” “worthless;” that she should apply for social security; and that she should quit because she was so old.  She told the trial court that this happened on a daily, or near daily, basis for over a year.  The trial court held that the worker failed to present specific enough information for a jury to find in her favor because she did not provide specific information about each instance during the period she was harassed, such as which person made comments on each particular date.  The First Circuit rejected the trial court’s reasoning, holding that it “would be unreasonable to expect the average worker in an allegedly perpetually abusive environment to keep track of her abuse to that degree of detail.”

The First Circuit also reversed the trial court’s decision to dismiss the worker’s claims of retaliation and “constructive discharge.”  After the worker complained to the U.S. Equal Employment Opportunity Commission (EEOC) and a similar agency in Puerto Rico about the harassment, one of the company’s owners began to threaten to fire her because she had filed her complaint.  The worker said that these threats occurred on almost a daily basis.  She wound up taking medical leave because of the depression and anxiety these threats caused.  When she returned, the threats continued until she eventually quit.

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This past week the U.S. Equal Employment Opportunity Commission (EEOC) announced the filing of seven lawsuits alleging unlawful harassment and also the settlement of a harassment case.  Two of the lawsuits that the EEOC filed and the one that it settled allege harassment against a class of employees.  In the case that settled, the EEOC secured $3.5 million for the victims and will require the employer to provide training to its employees, revamp its policies, and the EEOC will monitor the employer for a period of three years.

“Workplace harassment causes serious harm to women and men in all kinds of jobs across the country,” said EEOC Acting Chair Victoria A. Lipnic. “These lawsuits allege harassment based on race, national origin and sex and involve workers at country clubs and cleaners, sports bars and airlines, in health care and grocery stores. When employers fail to protect their employees from harassment, the EEOC may bring legal action to stop the harassment and prevent future harm.”

The seven lawsuits involve not only sexual harassment but also racial harassment, harassment based on national origin, and retaliatory harassment.  Retaliatory harassment is a common occurrence and is one major reason why harassment victims often choose not to complain about harassment.

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