• 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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This week the Connecticut Supreme Court issued a decision in Trusz v. UBS Realty Investors which expanded employees’ free speech rights. Mr. Trusz worked for UBS as a managing director and the head of its valuation unit. In this role, Mr. Trusz managed UBS’s process for deciding the value of its real estate investment funds. In connection with his job, Mr. Trusz informed UBS that it had made errors in its valuation of certain properties that UBS held in some of its investment funds. He told UBS, among other things, that he thought UBS had an obligation to inform investors of the errors and to return excessive fees to investors that UBS had collected because of the errors. When UBS refused to take the steps Mr. Trusz said were necessary, Mr. Trusz told UBS that he thought it was violating legal and ethical obligations to investors. UBS subsequently fired Mr. Trusz and he sued claiming, among other things, that UBS fired him in retaliation for the concerns he raised about UBS’s handling of the valuation errors.

Mr. Trusz’s case required the Connecticut Supreme Court to decide whether it would follow the decision of the U.S. Supreme Court in Garcetti v. Ceballos (2006). In Garcetti, the Supreme Court held that an employer could legally retaliate against an employee who exercised her free speech rights if the employee engaged in free speech as part of her official job duties.

Garcetti only applies to public employees and employers, like public school teachers and police officers, because the First Amendment only restricts the activities of governments. However, in Connecticut, there is a law that prohibits both public and private employers from retaliating against an employee because he exercised his free speech rights under the U.S. or Connecticut Constitutions. This is why constitutional issues came into play in Mr. Trusz’s case even though it involved a private employer.

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This week California enacted the California Fair Pay Act. The California Fair Pay Act will enhance existing laws designed to lessen the pay gap between men and women. “Sixty-six years after passage of the California Equal Pay Act, many women still earn less money than men doing the same or similar work,” said California Governor Jerry Brown. “This bill is another step toward closing the persistent wage gap between men and women.”

Nationally, women earn, on average, $0.78 for every $1.00 that men earn. That difference is slightly better in California where, on average, women earn $0.84 for every $1.00 that men earn. This pay gap has existed for decades across the nation. The California Fair Pay Act has some provisions that may help to decrease the pay gap in California because the law addresses some of the bigger problems with the existing federal Equal Pay Act. As discussed below, Maine’s equal pay law is also better than the federal Equal Pay Act but, in some respects, it is not as strong as the new California Fair Pay Act.

The same “establishment”

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The case of Cossart v. United Excel Corp. involves facts that are becoming more and more common these days because of technological advances that make remote workplaces more affordable and easier to use. Mr. Cossart first entered into an employment contract with United Excel in 2010. United Excel is a design/build company that provides architectural and construction management services to hospitals. Mr. Cossart worked for United Excel as a salesperson. United Excel established a sales office for Mr. Cossart in his home state of Massachusetts. United Excel provided Mr. Cossart with a phone, computer, printer, and videoconference equipment.

In 2013, in connection with his employment with United Excel, Mr. Cossart negotiated a deal with a California hospital. He negotiated the deal from his Massachusetts office and also in California. Under the terms of the employment contract that Mr. Cossart had with United Excel at the time, Mr. Cossart would have been owed a commission once the deal with the California hospital became finalized. When finalization of the deal was imminent, Mr. Cossart informed the President of United Excel, Ky Hornbaker, that he would expect United Excel to pay him a commission of $219,000 once the deal was finalized. According to Mr. Cossart, Mr. Hornbaker balked at paying a commission that high and insisted that Mr. Cossart accept a commission of $62,000. When Mr. Cossart refused to back down, Mr. Hornbaker allegedly scuttled the deal with the California hospital and, consequently, Mr. Cossart received no commission for his work in negotiating the deal. Mr. Hornbaker then also fired Mr. Cossart.

The legal issue that the First Circuit considered in this case was whether Mr. Cossart, an employee who worked in Massachusetts, could sue United Excel, a Kansas company, in Massachusetts. United Excel argued that it did not have sufficient ties to Massachusetts for the Massachusetts courts to have jurisdiction, or authority, over it. The First Circuit rejected United Excel’s argument and held that Massachusetts courts could exercise jurisdiction over United Excel for the purposes of Mr. Cossart’s lawsuit against it.

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It has been reported that the Maine Human Rights Commission will hear a case today against Lowe’s Home Improvement. Robert Hack of Greene filed the case against Lowe’s because he believed the company refused to hire him because of his age.  Mr. Hack unsuccessfully applied for jobs at Lowe’s stores in Auburn and Augusta.  The stores refused to hire him even though he had past experience working for Lowe’s. The MHRC investigator who investigated the case has reportedly found that Lowe’s discriminated against Mr. Hack because of his age and that the company asked Mr. Hack improper questions about his age during the hiring process.

Mr. Hack claims that, when he applied, Lowe’s asked him for the dates that he graduated from educational institutions. We previously wrote about a case against Tambrands where that company did essentially the same thing that Lowe’s allegedly did. In Maine, it is illegal for an employer to ask applicants for the dates in which they graduated from high school or other educational institutions. These graduation dates signal how old the applicant is and under the Maine Human Rights Act employers may not “elicit or attempt to elicit information directly or indirectly pertaining to…age.”

The MHRC has clear guidance on its website for employers which tells them that they cannot ask applicants for the dates when they graduated from educational institutions. Given that Tambrands and Lowe’s have both, apparently, violated this rule, it would not be surprising if other employers also violate it.

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Earlier this week, the U.S. Second Circuit Court of Appeals held that employees of the State of Vermont could not sue Vermont for violations of the employees’ rights under the Fair Labor Standards Act (FLSA). FLSA is a federal law that requires, among other things, employers to pay non-exempt employees overtime pay.

The case against Vermont centered around whether the employees were exempt from overtime pay requirements. It was undisputed that the Vermont employees would be entitled to overtime pay if they were not paid on a “salary basis.” Under federal regulations, an employee is generally considered to be paid on a salary basis only if her pay “is not subject to reduction because of variations in the quality or quantity of the work performed.” The Vermont employees argued that Vermont could not satisfy this standard because, among other reasons, their pay fluctuated based on the amount of time they worked.

The Court held, and Vermont did not dispute, that Vermont must comply with the overtime requirements of FLSA. However, the court held that employees of Vermont could not enforce their rights in court because Vermont, as a state, enjoys “sovereign immunity” from employees’ FLSA lawsuits even when Vermont has violated their rights.

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A Muslim flight attendant recently filed an employment discrimination complaint against her employer, ExpressJet, because she claimed that it unlawfully refused to accommodate her religious beliefs.  The flight attendant, Charee Stanley, claims that it would violate her religious beliefs if she served alcohol to passengers on flights.  According to Ms. Stanley, ExpressJet suspended her because she refused to serve alcohol to passengers.

Ms. Stanley claims that before her suspension she had worked out an arrangement with her co-workers, at the direction of her supervisor, where her co-worker would serve alcohol to a passenger, instead of Ms. Stanley, if the passenger ordered an alcoholic beverage.  Ms. Stanley says that this arrangement worked just fine until a co-worker complained that Ms. Stanley was not doing her job.  This same co-worker allegedly also said in her complaint that Ms. Stanley carried a book with “foreign writings” and wore a headdress.

Title VII of the Civil Rights Act requires employers to accommodate the religious beliefs of their employees provided that the accommodation does not create an undue hardship for the employer.  Ms. Stanley contends that her requested accommodation would not create an undue hardship for ExpressJet because she and her co-workers were managing just fine until this one co-worker filed a complaint.

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This week a court in California ruled against the car ride service provider Uber in a class action regarding its classification of drivers as independent contractors.  Some Uber drivers filed the class action because they believe Uber should have classified them as employees, which would entitle them to benefits such as expenses they incurred while discharging their duties and more of the tips that customers paid for the drivers’ services.  In the court’s order, it certified the class and, thus, held that the case could proceed as a class action.

The attorneys representing the class of drivers originally wanted to bring the case as a nationwide class action.  However, the court limited the case to just drivers in California.  The class was also limited by Uber’s practice of asking drivers to agree to arbitration agreements that prohibit them from participating in a class action.  Uber drivers in California began to agree to those arbitration agreements in June 2014.  So, California Uber drivers who have driven for Uber since June 2014 and did not opt-out of the arbitration agreement are not part of the class.  Those drivers would need to bring their own claims in arbitration.  The firm representing the class, however, is also offering to represent these drivers in arbitration.

One of the lawyers representing the class of drivers, Shannon Liss-Riordan, said that the class certification order “will allow thousands of Uber drivers to participate in this case to challenge their misclassifications as independent contractors, as well as to attempt to recover the tips that Uber advertised to customers are included in the fare, but are not in fact distributed to the drivers.” 

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Earlier this month the U.S. Court of Appeals for the Eighth Circuit held that a property management company violated the FMLA rights of its former employee Ena Wages. Ms. Wages worked for the company as a caretaker from November 17, 2008 to November 16, 2009. Caretakers maintained the company’s properties by vacuuming, cleaning, mopping, washing windows, dusting, and removing snow.

In the summer of 2009, Ms. Wages learned that she was pregnant and she needed accommodations in order to perform her caretaker job. The property management company that employed Ms. Wages accommodated some of Ms. Wages’ restrictions but it began to refuse when Ms. Wages started to need to miss work. She had to miss work due to abdominal pain on November 9, 10, and 12, 2009. She submitted a doctor’s note to her supervisor on November 13, 2009, which said that she needed a reduced schedule of 20 hours per week because of her pregnancy. The property management company fired Ms. Wages on November 16, 2009. The company gave Ms. Wages a termination notice which said that it decided to fire her because it could not accommodate the restrictions in her doctor’s note.

The trial court held that the property management company’s termination of Ms. Wages violated the FMLA and the Eighth Circuit affirmed this holding. Both courts rejected the property management company’s argument that Ms. Wages was not eligible for FMLA leave because she had not worked for the company for 12 months. The Eighth Circuit ruled that since Ms. Wages began to work for the company on November 17, 2008, she reached the 12-month mark of her employment on November 16, 2009. It reasoned that November 17, 2009 would have been the start of her second 12-month period of employment.

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This week a federal court in Massachusetts held that a jury could reasonably find that the Town of Sandwich discriminated against police officer and military reservist Timothy Kane because of his military service. Kane alleges that the Sandwich Police Department passed him over for promotions because of the fact that he had to take leave from the police department when he was called up for duty with the U.S. Air Force Reserve. For example, in 2011 the police department passed over Kane for a promotion to sergeant shortly after he notified the department that he was going to be deployed to Iraq even though he scored higher on the sergeant exam than any other candidate.

According to the court’s decision, the Sandwich Chief of Police, Peter Wack, had a history of publicly complaining to the media about police officers serving in the National Guard and Reserves because he believed that their service contributed to the police department’s budgetary problems. Kane also presented evidence that other police officers said that Kane pulled “the military flag” whenever it would benefit him and that his use of military leave was a “scam.” One of the officers who allegedly made these statements served on the panel of officers who passed over Kane for the promotion to sergeant.

Kane brought this lawsuit under Massachusetts law and a federal law known as the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA protects the jobs of military servicemembers when they have to take leave from those jobs in order to serve in the military. USERRA serves the important purpose of ensuring, among other things, that military reservists do not have to choose between a stable job and defending our country.

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Maine recently enacted a law that will prohibit employers from requiring or coercing applicants or employees to grant an employer access to their personal social media profiles. This means that employers will not be allowed to make applicants or employees, for example, “friend” them on Facebook or require them to provide the passwords to their Facebook profiles.

This law was passed in the wake of more and more employers checking the interent and social media to learn as much as they can about applicants and employees. According to the National Conference of State Legislatures, 21 states have laws similar to this new law because they want to protect workers’ privacy.

Maine’s new social media privacy law has exceptions for when employers need to conduct investigations into employee misconduct. However, if your employer requires or coerces you to let it access your social media profile and one of those exceptions do not apply, the statute will enable you to pursue legal action.

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