• 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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Earlier this month, the U.S. Fourth Circuit Court of Appeals, in Virginia, held that a race discrimination class action against Nucor Corporation could proceed. This decision marked the second time that this appellate court has reversed the trial judge’s decision not to let the class action proceed.

The case centers around a plant in South Carolina where workers melt, form, finish, and ship steel products to customers. The plaintiffs represent a class of black employees at that plant. Before the plaintiffs initiated legal action, the plant had 611 employees; 71 of those 611 employees were black but only one supervisor in the entire plant was black.

The plaintiffs have alleged that systemic discrimination existed at the plant that (a) worked to deprive them of equal opportunities for promotions and (b) led to a hostile work environment. The trial judge decided to let the hostile work environment claim go forward as a class action but had refused to permit the promotion claim to go forward. The Fourth Circuit considered the statistical evidence that the plaintiffs presented as well as anecdotal evidence of discrimination against black workers at the plant. The Fourth Circuit held that this anecdotal evidence not only supported the hostile work environment claim but also supported the promotions claim. Some of this anecdotal evidence was as follows:

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Earlier this month, bills were reintroduced in the U.S. House and the Senate that would amend the Family and Medical Leave Act (FMLA) so that it would protect employees who take time off from work due to the death of a child. The bill is called the Parental Bereavement Leave Act/Sarah Grace-Farley-Kluger Act.

The FMLA currently provides job-protected leave to eligible employees upon the birth or adoption of a child but not the death of a child. Maine’s family medical leave law similarly does not provide for job-protected leave due to the death of a child unless that death occurs in the course of military duty.

The Parental Bereavement Leave Act has been introduced in Congress before but this is the first time that it has garnered bipartisan support in the House with sponsors Steve Israel (D-NY) and Paul Gosar (R-AZ).

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At the last meeting of the Maine Human Rights Commission (MHRC), the Commissioners found reasonable grounds to believe that Hartford Installations, a company based in Damariscotta and South Portland, discriminated against a former employee because of his race and retaliated against him when he complained of the discrimination. The former employee, Jaime Guevara, is an immigrant from El Salvador.

According to a news report about the case, Mr. Guevara claimed that when Hartford Installations sent him to a job in Pennsylvania for three months, a project manager in Pennsylvania called him racist names like “Mexican, midget, and lazy.” This project manager also refused to pay Mr. Guevara all of the wages he earned because the project manager allegedly thought “Mexicans do not deserve to get paid so much.” Mr. Guevara complained to another project manager about this discriminatory treatment but that project manager refused to do anything to stop the discrimination.

When Mr. Guevara returned to Maine from the job in Pennsylvania, he says that he complained again to the company about how the project manager in Pennsylvania had discriminated against him. In response, he claims that the company reduced his hours. Mr. Guevara says that the company told him it reduced his hours because of what happened in Pennsylvania. The company later demoted Mr. Guevara and cut his pay by 25% allegedly because of his discrimination complaints.

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Fortune Magazine recently ran an article that explored a trend in the tech industry of job postings that say the companies prefer applicants who are “digital natives.” Education consultant Marc Prensky coined the term “digital native” in an article that he published in 2001 called Digital Natives, Digital Immigrants. What people mean when they use the term “digital native” is ambiguous but, essentially, it seems to refer to a person who has been immersed in digital technology for a large portion of her life.

Since digital technology only first started to become commonplace in the 1990s, employers are probably less likely to believe that people born in the 1950s, 60s, or 70s are digital natives. Thus, some argue that when an employer says it wants to hire a digital native, the employer is implicitly signaling that it does not want to hire older workers.

The federal Age Discrimination in Employment Act (ADEA) and the Maine Human Rights Act (MHRA) both prohibit age discrimination. Would an employer’s use of the term “digital native” in a job posting be enough evidence to prove that it discriminated against older applicants in violation of the ADEA or MHRA? As the Fortune article indicates, many employment law experts are uneasy with the term digital native but they do not think an older worker could prevail in a lawsuit with that sole piece of evidence. However, if you are an older worker who unsuccessfully applied for a job where the employer said that it wanted a “digital native,” you should seriously consider contacting an experienced employment lawyer to determine whether it would be worthwhile to further explore whether there is other evidence of age discrimination.

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Earlier this month, a 64-year-old tech worker, Robert Heath, filed an age discrimination lawsuit against Google. In the lawsuit, filed in California, Heath claims that Google refused to hire him because of his age. The attorneys who filed the lawsuit seek to represent a class of older workers as well.

Heath has a college degree in computer science and has worked for IBM, Compaq, and General Dynamics. He claims that, after he applied for a programmer position, he received an email from a Google recruiter who said that, with his experience, Heath would be a “great candidate” to work for Google. However, when it came time for Heath’s interview, which Google conducted over the phone, the interviewer was ten minutes late, refused to take his phone off speakerphone so that he could better communicate with Heath, and was barely fluent in English. After the interview, Heath did not get the job.

Heath’s lawsuit cites statistics to support his claim of age discrimination based on data obtained from Payscale.com. 840 Google employees self-reported their ages to Payscale.com and, according to that data, the median age of Google employees in 2013 was 29. The median age for all computer programmers in the United States is 43.

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The legislatures in Connecticut and Vermont are considering bills that would further expand the availability of paid sick leave for workers. As we’ve reported before, paid sick leave laws are beginning to pop up in various parts of the country. However, Maine, unlike some of its neighboring New England states, does not require employers to provide paid sick leave.

In Connecticut, service workers who work for employers with 50 or more employees already have the right to paid sick leave. They can use this paid sick leave to attend to their own medical needs and to the medical needs of a spouse or child. The Connecticut legislature is debating a bill that would expand this law to employers with fewer than 50 employees. The bill would also require employees to pay for their paid leave by contributing %0.25 of their weekly salaries to a fund that they would access when they needed to take sick leave. As we previously reported, this payment mechanism is similar to the mechanism that Rhode Island uses.

In Vermont, the legislature is debating a bill that would require all employers to provide at least three paid sick days per year and five days after the employee had worked for the employer for two years. Even this relatively modest proposal has drawn criticism from the business community who say that this sick leave law would overly burden small businesses. Supporters of the bill have emphasized the benefits to public health. “Do you want a sick food-service worker serving you food?” Rep. George Till asked his colleagues. “Do you want a sick child-care worker taking care of your child? I don’t. It turns out those are two of the areas where the vast majority of workers do not have paid leave. It also turns out those are two areas where infectious diseases are commonly transmitted.”

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Today is Equal Pay Day. Equal Pay Day highlights the wage gap in the United States between men and women. On average, women earn about 78% of what men earn. Equal Pay Day is today because the average woman would have to add all of the wages she’s earned between today and the beginning of 2015 to the wages she earned in 2014 in order to have the same amount of wages that the average man earned just in 2014.

Maine’s U.S. Senators, Susan Collins (R) and Angus King (I), have co-sponsored bills that prohibit retaliation against workers for discussing how much money they make. These bills would address one of the reasons why pay discrimination persists in the United States. Many women do not know that they make less money than men who do the same work as them because employers discourage employees from speaking about their wages.

Today, Senator Collins co-sponsored the Workplace Advancement Act. Earlier this year, Senators King and Collins both co-sponsored the End Pay Discrimination Through Information Act. The End Pay Discrimination Through Information Act would prohibit employers from retaliating against employees because they “inquired about, discussed, or disclosed” their own wages or the wages of other employees. The Workplace Advancement Act contains a similar protection for employees but is narrower and less protective of employees. The Workplace Advancement Act would prohibit employers from retaliating against employees because they “inquired about, discussed, or disclosed comparative compensation information for the purpose of determining whether the employer is compensating an employee in a manner that provides equal pay for equal work.”

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A Connecticut appeals court recently ruled that an ambulance company could legally discriminate against a volunteer on the basis of her race. The volunteer who brought the case, an African American woman named Sarah Puryear, alleged that her ambulance company discriminated against her because of her race.  Ms. Puryear alleged, among other things, that she “was subject to verbal harassment and an abusive working environment,” which included “inappropriate comments about the ‘ghetto’ and Africa.” The ambulance company argued that Connecticut’s discrimination law does not protect volunteers from discrimination because they are not employees. Thus, the ambulance company argued, even if it did discriminate against Puryear because of her race, it did not violate the law.

The court agreed with the ambulance company’s argument and adopted a legal test for determining whether a worker is an employee entitled to protections from discrimination. This legal test, called the “remuneration test,” requires a worker to show that she received some financial benefit from the employer for the work that she performed before she is entitled to protection from discrimination.

The court borrowed the remuneration test from federal case law that interprets Title VII of the Civil Rights Act. Nina Pirrotti, President of the Connecticut Employment Lawyers Association, disagreed with this decision. Ms. Pirrotti did not represent either party in the case. But she said that, if she had represented Ms. Puryear, she would have argued that Connecticut’s anti-discrimination law is more protective than federal law and, as such, the court should not have adopted the remuneration test from federal case law. She said that Connecticut courts have refused in the past to adopt standards from federal law when they interpret Connecticut’s anti-discrimination law, such as in Vollemans v. Town of Wallingford.

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Yesterday the Washington Post ran a story about a hotel maid who a reporter had interviewed for an article on the minimum wage. The reporter spoke to the maid at the suggestion of the maid’s boss. The maid had told the reporter that she looked forward to receiving a $0.25/hour pay raise because her state, Arkansas, was going to raise the minimum wage. The maid contacted the reporter after he published the story and told him that her boss had fired her because of what she said to the reporter. Her boss did not think that a minimum wage increase was a good idea.

As unfair as this sounds, the maid’s termination was probably legal because of the at-will employment rule. Under the at-will employment rule, it is presumed that employers can fire employees for any reason whatsoever, no matter how unfair. There are exceptions to the at-will employment rule, such as laws that prohibit certain types of discrimination, but many cases of unfair employment practices do not fall under any of these exceptions to the at-will employment rule.

In the case of the hotel maid, she claims that her boss fired her because she spoke to a reporter and expressed an opinion contrary to the opinion of her boss. If the maid had worked for a government agency, the First Amendment may have protected her from this type of retaliation. But the maid did not work for a government employer; she worked for a private company. And the First Amendment protects people from government action, not the actions of private companies.

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This month in New York, a class action lawsuit was filed against Novartis, a large pharmaceutical company.  The plaintiffs in the lawsuit allege a pattern or practice of sex discrimination against women who worked for the Alcon division of the company.  They claim that women in the Alcon division received lower pay than men who did substantially the same jobs.  The lawsuit also alleges that when one female employee blew the whistle on this discrimination to the U.S. Equal Employment Opportunity Commission (EEOC), the company retaliated against her.

This is not the first sex discrimination class action filed against Novartis.  During a trial in 2010, a jury found that Novartis had engaged in a pattern or practice of sex and pregnancy discrimination, including pay discrimination, against its female employees.  After the trial, Novartis settled for a total of about $175 million.  The same law firm who represented the class of women in this case represents the class of women in the Alcon case.

These cases illustrate the widespread problem of pay discrimination in the United States.  In the United States, women earn significantly less than men.  This gender gap in pay exists in both low and high skilled jobs, and the data shows that women often earn less than men within the same occupations.  To be sure, there are various reasons for the pay disparity between American men and women but sex discrimination is certainly one of them.

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