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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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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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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