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In many states around the country, state legislators are discussing and debating whether to enact laws that prohibit workplace bullying. These laws would, for instance, make it illegal for an employer to sit on its hands and do nothing if an employee physically assaulted a co-worker. Laws against workplace bullying have been introduced in the legislatures in Massachusetts, New Hampshire, and Vermont. In the recent past, a legislator floated the idea in Maine as well.

Many people would be surprised to know that a lot of workplace bullying is not already illegal. Under current law, unless someone bullies you at work for an unlawful reason, such as because of your sex, race, religion, age, or disability, there is no law that requires your employer to do anything about it. So, if you are experiencing workplace bullying and your employer is not doing anything to stop the bullying, you should contact an experienced employment lawyer to determine whether you have any legal rights.

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Nebraska is the latest state to debate a bill that would prohibit employers from discriminating against applicants on the basis of their credit history. Massachusetts, Rhode Island, and Vermont already have similar bans on employers using credit histories during the hiring process except with respect to certain types of jobs, like if state or federal law requires the employee to be bonded. Maine does not have such a law.

The Nebraskan legislator supporting this latest bill, Sen. Annette Dubas, noted that “there are many occurrences in our lives that are out of our control but can have an impact on our credit score.” Dubas maintains that “there is little correlation between credit history and job performance or the likelihood of committing fraud.” Indeed, applicants who are unknowing victims of identity theft–which is at record levels–could be hurt during a hiring process out of no fault of their own.

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medicine symbol.pngThe American Civil Liberties Union (“ACLU”) of Maine has sued Adecco on behalf of a woman from Pittsfield named Brittany Thomas. According to the lawsuit, Ms. Thomas applied for a job with Adecco and failed its drug test because she uses medicinal marijuana. Although just 24 years old, Ms. Thomas suffers from grade 2 spondylosis, the beginning stages of arthritis, two bulging disks, a herniated disk, an annular tear, and a pinched nerve root. She was prescribed marijuana for the pain associated with these back problems.

“No patient should be forced to choose between the pain relief she needs to live a normal life and the employment she needs to support her family,” said Zachary Heiden, legal director for the ACLU of Maine. “And no employer should be forcing itself into the middle of a decision best made by a patient and her doctor.”

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On December 20, 2012, the Maine Employee Rights Group (MERG) secured an important victory for its 14 year old client, Alathea Bushnell. Alathea sought MERG’s assistance because Maine’s Department of Health and Human Services (DHHS) had denied Mainecare coverage for nursing services that she needed due to an uncontrolled seizure disorder. On a daily basis, Alathea can experience anywhere from 0 to 150 seizures. The seizures vary in severity but it is not uncommon for her to experience “grand mal” seizures. During these grand mal seizures, she has injured herself, turned blue in the face, and foamed at the mouth. Due to this seizure disorder, she must wear a helmet at all times.

DHHS’s Commissioner, Mary Mayhew, denied coverage for the nursing services Alathea’s doctors said that she needed even though Maxim Health Care, an authorized agent for the State, as well as a DHHS appeal hearing officer both determined that she needed the nursing services. The Commissioner reasoned that DHHS did not have to provide coverage for these nursing services because Alathea’s condition was not “unstable.” The Court determined that the Commissioner erred in denying benefits for the nursing care because she failed to properly consider what care was “reasonable and necessary to manage [Alathea’s] condition.”

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Yesterday, the Maine Supreme Judicial Court held, in a 4-3 decision, that the Maine Human Rights Act (MHRA) does not permit victims of employment discrimination to sue the supervisors who discriminated against them. Instead, the Court held that, under the MHRA, employees may only sue their employer for discrimination when their supervisors discriminate against them.

In the Court’s majority opinion, written by Justice Silver, it held that the MHRA was ambiguous and did not clearly indicate whether the Maine Legislature intended for victims of employment discrimination to be able to sue the supervisors who discriminated against them. The Maine Human Rights Commission (MHRC), the state agency that enforces the MHRA, backed the plaintiff in this case and argued that the MHRA allows victims of employment discrimination to sue the supervisors who discriminated against them, instead of just the employers who employed them. The Court found that the MHRA “could reasonably be interpreted as…imposing individual supervisor liability.” It also recognized that “when statutory terms are ambiguous, [courts] defer to the agency’s interpretation of a statute that is within its area of expertise unless it is unreasonable…” Despite the Court’s finding that the MHRC’s interpretation of the statute was reasonable, the Court did not defer to it. Instead, the Court held that if the Maine Legislature had intended to create individual supervisor liability, it would have more clearly indicated this intent in the statute.

The dissenting opinion, written by Justice Levy, found that the MHRA unambiguously provides that individual supervisors may be held liable if they discriminate against employees. According to Justice Levy, under the express terms of the MHRA, “[a]n employer includes ‘any person acting in the interest of any employer, directly or indirectly.’ Thus, when individual supervisors act in the interest of their employers, they, too, are ’employers'” under the MHRA. Justice Levy also found that the majority’s opinion contravened the purpose of the MHRA. He reasoned that, obviously, one of the purposes of the MHRA is to prevent discrimination and “by subjecting individual supervisors to a potential lawsuit for their unlawful employment discrimination, the [MHRC’s] construction [of the MHRA] directly discourages individual supervisors from discriminating by creating a disincentive.”

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Yesterday, the Maine Human Rights Commission (MHRC) announced that it has established a Third-Party Neutral Mediation Program. The MHRC is the state agency charged with investigating complaints of employment discrimination. Mediation is a process where a neutral mediator attempts to facilitate the resolution of a dispute. In employment cases, the mediator meets with the employer and the employee, or applicant, and attempts to help them settle the employee’s, or applicant’s, claims.

“This new program will allow the commission to resolve cases at an early stage in the commission’s investigation process, and help the parties resolve their disputes with a feeling that they have been heard, without investing substantial time and money in litigation,” said MHRC Chair Paul Vestal.

If you have a case before the MHRC that is slated to go to mediation, you can contact the Maine Employee Rights Group (MERG) for a free consultation and, potentially, retain MERG to represent you at the mediation.

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In recent weeks, state legislatures in Wisconsin and Missouri have sought to make it more difficult for victims of employment discrimination to hold the perpetrators of the discrimination accountable.

In Wisconsin, the State Assembly decided to eliminate the right of victims of employment discrimination to seek compensation under state law for non-economic damages, like the stress one experiences due to financial hardship when his employer fires him for a discriminatory reason. The Wisconsin State Assembly also eliminated the ability of juries to assess punitive damages against employers who discriminate against their employees. The only monetary remedy the Wisconsin State Assembly left intact was compensation for lost wages, benefits, and attorney fees. Under this new law, employers could engage in some types of discrimination without facing any monetary loss at all. For instance, under this new law, employers will not have to pay monetary damages if they subject employees to sexual harassment.

In Missouri, the State Senate voted to make the burden of proof more difficult on victims of employment discrimination. Employment discrimination lawsuit are already incredibly difficult for employees to win. According to a study of cases in federal court, from 1979 through 2006, plaintiffs won 15% of job-discrimination cases. By comparison, in all other civil cases, the win rate was 51%. This new law in Missouri will only make it more difficult for victims of employment discrimination to hold their employers accountable.

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The Maine Legislature is looking for ways to reduce the length of time it takes for the Maine Human Rights Commission (MHRC) to investigate discrimination complaints. The MHRC is the state agency that investigates complaints of unlawful discrimination in employment as well as other settings. The Legislature has asked the MHRC to provide it with ideas on how to reduce the length of time it takes to investigate complaints. The MHRC recently held a meeting open to the public on this topic.

The Legislature’s call to reduce the amount of time it takes the MHRC to investigate complaints of employment discrimination comes amidst a nationwide surge in employment discrimination complaints. According to a recent report from the U.S. Equal Employment Opportunity Commission (EEOC), last year it received more complaints of employment discrimination than at any time in its 45 year history. Many believe high unemployment is a reason for the increase. “I think when people are less likely to find a new job, they’re more inclined to file a charge of discrimination,” EEOC spokeswoman Justine Lisser said. “Whereas in the past they might just walk off and go to another job, nowadays they can’t really do that, because there are no jobs.”

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The Seventh Amendment to the U.S. Constitution entitles you to a jury trial if your employer violates your common law rights. For example, if you and your employer had a contract which set forth how much your employer would pay you and it violated the contract, the Seventh Amendment would entitle you to a jury trial.

The Seventh Amendment helps to level the playing field between extremely powerful corporations and ordinary people. For that reason, some extremely powerful corporations require job applicants to waive their Seventh Amendment rights before they will hire them. They sneak “arbitration clauses” into the fine print of employment applications or employee handbooks. These arbitration clauses require you to give up your right to a jury trial and, instead, pursue your claims in a private judicial system that has many features which benefit companies and disadvantage employees–that is why companies require employees to agree to them.

Even if you notice the arbitration clause in your employment application and object to it, the employer will almost never hire you unless you agree to it. As more and more companies use these arbitration clauses, it will become harder and harder for people to find jobs with employers that do not require them to relinquish their constitutional rights.

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On September 16, 2010, union representatives spoke on behalf of Rumford paper mill workers at a hearing in Washington, D.C. The hearing was before the International Trade Commission. Maine’s congressional delegation also testified. The union representatives and Maine’s congressional delegation testified in favor of a tariff the U.S. has placed against Chinese and Indonesian coated paper. They maintain that China and Indonesia have unfairly subsidized their coated paper companies to the detriment of U.S. coated paper companies–and their employees. Last year the Rumford mill, run by New Page Corp., laid off 100 employees. The union representatives cited the tariff as a reason why the Rumford mill called these laid off employees back to work earlier this year.

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