COVID-19 UPDATE Employee Rights Group, LLC, is implementing a social distancing policy to slow the spread of COVID-19 based on the recommendations of the public health authorities. So, our offices are closed to walk-ins and all visitors unless approved in advance. All appointments and meetings will be conducted by phone or videoconference until further notice. Thank you for your understanding as we work together to keep our clients, staff, and communities healthy.

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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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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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On January 1, 2019, Maine’s minimum wage increased from $10 an hour to $11 an hour. The change reflects the gradually increasing minimum wage approved by voters in 2016 in a citizen’s referendum, which raised Maine’s minimum wage from $7.50 to $9 an hour in 2017; $10 an hour in 2018; $11 an hour in 2019; and $12 an hour in 2020. The law provides that after 2020, the minimum wage will be adjusted for cost-of-living increases. For tipped employees, this year will find their wages increased from $5 to $5.50 per hour, and employers will be required to make up the difference when tips don’t exceed the minimum wage.

Thanks in part to these minimum wage hikes, the average personal income for Mainers rose 3.7% from 2016 to 2017, while nationally the average income rose 3.6%. While wages have increased for all Mainers, the lowest-paid workers have seen the greatest gains with nearly a 10% increase in earnings.

The Federal Minimum wage, on the other hand, has fallen when adjusted for inflation. The Federal minimum wage was last raised in 2009, at which point it was set to $7.25 an hour. Although the number stands at $7.25, when adjusted for inflation and the rise in prices of goods over time, $7.25 correlates to about $6.20 in 2009.

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The effects of an arrest for a nonviolent crime can be a far reaching and lead to an ongoing stain on a person’s record. A Google search will often reveal past arrests for a nonviolent crime and this information to anyone for years following the arrest. The resulting discrimination can be a devastating blow to the best job search efforts.

Last Friday, the president signed The First Step Act, which enacts long needed reform to our criminal justice system by moderating overly harsh sentencing. Now, Congress must look more critically at the problems faced by inmates upon release in order to address not only recidivism, but our nation’s far reaching labor shortage.

Studies show that individuals who can’t find meaningful employment upon release are more likely to engage in illegal activity and return to prison. Currently, for every 100-people released from prison, 66 will end up back in prison. Not surprisingly however, that rate is far lower for those who get jobs soon after release. In fact, California has shown that recidivism may be as low as 3% for those who gain meaningful employment shortly following release.

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This year New Hampshire amended its anti-discrimination laws to include “gender identity” as a protected class. In doing so, New Hampshire has made it unlawful to discriminate against an employee due to their gender identity. Under this new law, “gender identity”  is defined as “a person’s gender-related identity, appearance, or behavior, whether or not that gender-related identity, appearance, or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.”  This new law will provide much needed protection for transgender Granite Staters.

While over half of the states in the nation have not included Gender Identity as a protected class, New Hampshire has taken a step toward equality for a group that is consistently harassed, mistreated and discriminated. Transgender individuals currently face an unemployment rate three times higher than that of the general population, according to the National Center for Transgender Equality.

Twenty states, including Maine and New Hampshire, ban employment discrimination based on gender identity. Additionally, although federal statutes do not include gender identity protection, the Equal Employment Opportunity Commission has interpreted Title VII of the Civil Rights Act of 1964 to provide protection against discrimination.

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The U.S. District Court of Maine has ordered AB Home Health Care (“AB Home”) to produce additional documents and communications that AB Home sought to shield from discovery in a False Claims Act (“FCA”) lawsuit the Maine Employee Rights Group (“MERG”) filed against it.  The Complaint in this FCA lawsuit alleges that AB Home fraudulently billed MaineCare for in-home personal support services performed by unqualified individuals.  These unqualified individuals did not undergo the training required for personal support specialists.

MERG’s client worked for AB Home from January 2014 to June 2015 and AB Home argued that the Court should shield from discovery any documents or communications that fell outside the dates of her employment.  The Court rejected AB Home’s argument.

MERG attorney Chad Hansen obtained evidence in discovery that, of the eight personal support specialists AB Home employed during his client’s tenure with the company, five were hired before she began working there.  Furthermore, AB Home could only provide training certifications for two of these eight personal support specialists.  Also, Hansen uncovered evidence that at least one of AB Home’s personal support specialists continued to provide services without any evidence of receiving the requisite training after his client separated from AB Home and after the filing of the FCA lawsuit.

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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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