• 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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The New York Times recently published an article that discussed a variety of steps that experts say employers can take to reduce the amount of sexual harassment in the workplace. This article provides helpful information that you could present to your employer if it is interested in addressing problems of harassment in the workplace.

The experts who spoke to the New York Times identified five things that employers should do:

(1) Bystander training – Oftentimes victims of harassment have allies that do not know how they can best help the victim. Employers should train employees on how they can help victims. This type of training is still rare in companies but colleges, the military, and non-profit organizations have successfully used it.

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With the current cultural emphasis on the epidemic of sexual harassment in the workplace, it is a good time to discuss how the law can help victims. Laws that prohibit sexual harassment aremetoo-2859980_1920-300x200 one tool that can be used to help victims.

There are state and federal laws that prohibit sexual harassment. In most cases, a victim of sexual harassment has 300 days from the last date of harassment to pursue legal action. The first legally required step in most cases is to file a charge of discrimination with the Maine Human Rights Commission (MHRC) or the U.S. Equal Employment Opportunity Commission (EEOC). The MHRC or EEOC will investigate your charge but in the vast majority of cases neither the MHRC nor EEOC will pursue legal action against the employer. For that reason, it is important for you to have legal representation when you file your charge because you’re most likely going to have to press your case yourself.

There are two major things victims of sexual harassment must show in order to prevail in a lawsuit. First, the victim must show that they experienced harassment that was so severe or pervasive that it affected their employment, unreasonably interfered with their work performance, or created an intimidating, hostile, or offensive work environment. Second, the victim must prove there is a basis to hold their employer liable for the harassment. The standard for proving employer liability varies depending on the harasser’s position within the employer’s hierarchy and the form of the harassment. The EEOC has regulations and guidance that discuss the different legal standards but, basically, the higher the harasser is in the employer’s hierarchy, the easier it is to hold the employer liable for the harassment.

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In the face of a number of employment discrimination lawsuits against Tesla, the company published an email from CEO Elon Musk that one of the lawsuits referenced. Musk’s email covers a lot but the part that struck us was the following:

“We have had a few cases at Tesla where someone in a less represented group was actually given a job or promoted over more qualified highly represented candidates and then decided to sue Tesla for millions of dollars because they felt they weren’t promoted enough. That is obviously not cool.”

Musk’s message to his company seems to express to his employees that it is “not cool” when an employee files a discrimination lawsuit against the company that Musk believes lacks merit. The example Musk uses in his email sounds like a meritless claim but the line between what is and is not a valid claim of discrimination almost always depends on your perspective. Managers at Tesla who are inclined to retaliate against employees that accuse them of discrimination likely feel emboldened by Musk’s message. If one of these managers punished an employee who complained that the manager discriminated against him, telling the employee it was “not cool” to file such a complaint, the manager could clearly point to Musk’s email and say, “I was just saying the same thing as Mr. Musk.”  This is not the type of message the leader of a company should send to their employees.

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The epidemic of sexual harassment and assault has received a lot of attention recently because of high profile cases like movie producer Harvey Weinstein, actor Kevin Spacey, journalist Charlie Rose, and many others. The news has spawned a viral social media hashtag “#metoo” which women have used to inform others that they, too, have suffered from sexual harassment or assault. All of this publicity has focused a spotlight on this problem and there appears to be momentum building toward changing the culture that has allowed this epidemic to persist for so long.

Victims of workplace sexual harassment and assault usually do not report the people who harass or assault them. A recent study “found that gender-harassing conduct was almost never reported, and unwanted physical touching was formally reported only 8% of the time.” The study also found that “even sexually coercive behavior was reported by a mere one-third of the women who experienced it.” Instead, victims of sexual harassment and assault typically respond by avoiding the harasser, downplaying the severity of the harassment, or just enduring the harassment. Victims of sexual harassment fear that the response to a complaint will be disbelief, victim blaming, inaction, retaliation, ostracism, or harm to the victim’s reputation. The fear of retaliation is particularly well-founded; studies show that the majority of employees who speak out about workplace harassment experience some form of retaliation.

One way that victims of sexual harassment and their allies can change these trends is to band together and speak out about the harassment. If you are a victim of sexual harassment, you most likely are not the harasser’s first victim and, if the harasser is not held accountable, you most likely will not be the last victim either. In dealing with workplace sexual harassment, there is strength in numbers. Talk to people in the workplace who you trust to find out if there are other victims, even victims who no longer work for the employer. Encourage other victims and people who know about the harassment, against both you and others, to stand up with you and demand that the harassment stop.

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A tech entrepreneur recently took a novel approach to ensure that members of her company’s board of directors cannot engage in sexual harassment and keep their positions. The entrepreneur, Kristina Bergman, is the CEO of Integris Software. Bergman added a clause to stockholders’ voting agreements that requires them to vote out a director if there is a “reasonable probability” that they sexually harassed someone.

Typically, directors are only removable for cause, such as if they embezzle money from the company or engage in fraud. Bergman’s approach is novel but it is smart given how rampant sexual harassment is in the tech industry. Hot startup companies, like Uber, and some of the venture capital firms that fund them, like Binary Capital, have come under fire for sexual harassment. Bergman wanted to try to prevent the problem that has dogged these companies from infecting hers.

Notably, the standard of “reasonable probability” is intended to be lower than the standard of proof required to hold someone responsible for sexual harassment in court. Bergman and the lawyer who helped her draft the stockholder voting agreement wanted to avoid protracted legal fights.

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pregnant-woman-300x200This month, Connecticut enacted new protections for pregnant workers that address some of the more common abusive employment practices that women face when they are pregnant. The new protections include the following:

  • Employers must provide reasonable accommodations to pregnant workers to enable them to work unless the accommodation would be an undue hardship;
  • Employers cannot refuse to hire a pregnant worker because she needs a reasonable accommodation due to her pregnancy;
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Earlier this month, in a landmark decision for proponents of marijuana legalization, the Massachusetts Supreme Court held that an employer who fired an employee because she used medical marijuana to treat her Crohn’s disease may have violated the state’s disability discrimination law. The employee in the case, Cristina Barbuto, was up front with her employer, Advantage Sales and Marketing (“Advantage”), and disclosed that her doctor had prescribed medical marijuana which she used a few times per week at home; she never came to work intoxicated. Some managers with Advantage were allegedly accepting of Barbuto’s marijuana use but a human resources representative ultimately fired Barbuto because marijuana use violates federal law.

Advantage’s attorney argued that allowing an employee to use marijuana cannot be a reasonable accommodation because marijuana use violates federal law. The court rejected this argument. It determined that, even though marijuana use violates federal law, allowing someone with a disability to use it for medicinal purposes could be a required reasonable accommodation because Massachusetts state law permits medical marijuana use.

In reaching its decision, the court noted that the vast majority of states permit medical marijuana use and that fact weighed on its decision. The court stressed that “to declare an accommodation for medical marijuana to be per se unreasonable out of respect for Federal law would not be respectful of the recognition of Massachusetts voters, shared by the legislatures of voters in the vast majority of States, that marijuana has accepted medical use for some patients suffering from debilitating medical conditions.”

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Earlier this week a new Maine law went into effect that will allow employers to employ more 14- and 15-year old kids. According to a press release from the Maine Department of Labor, the new law “amends laws relating to minors 14 and 15 years of age to allow them to work in bowling alleys, movie theaters and permanent amusement parks, and to clarify their employment in bakeries, hotels and rooming houses—opening more occupations and broadening the things they can do.”

While a job can certainly benefit a teenager, employing children can create problems with workplace harassment. It has been well documented that workplaces with a lot of younger workers are more likely to experience problems with workplace harassment.   Last year the U.S. Equal Employment Opportunity Commission issued a report from a Select Task Force on the Study of Harassment in the Workplace. The EEOC’s Task Force studied, among other things, factors that increase the risk that workplace harassment will occur—one of those risk factors is the presence of many young workers.

According to the EEOC’s Task Force, “workplaces with many teenagers and young adults may raise the risk for harassment. Workers in their first or second jobs may be less aware of laws and workplace norms – i.e., what is and is not appropriate behavior in the workplace. Young workers who engage in harassment may lack the maturity to understand or care about consequences. Young workers who are the targets of harassment may lack the self-confidence to resist unwelcome overtures or challenge conduct that makes them uncomfortable. Finally, young workers who are in unskilled or precarious jobs may be more susceptible to being taken advantage of by coworkers or superiors, particularly those who may be older and more established in their positions.”

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We previously reported on a bill that the Maine legislature was considering which would help address the gender pay gap.  That bill passed the legislature but Governor LePage has vetoed it.  As our previous post explained, this new law would help prevent victims of pay discrimination from continuing to suffer the effects of that discrimination when they move from one job to another.  It would also help victims of pay discrimination to discover their employers’ discriminatory practices.

“Workers should be paid a market-based salary that reflects their education, experience, qualifications, credentials and work ethic, regardless of whether a previous job underpaid them because of their gender — or any other reason,” Senator Cathy Breen (D-Falmouth) said. “If this bill becomes law, it will be a victory not only for the hundreds of thousands of Maine women who are underpaid, but for all workers that deserve fair compensation.”

Governor LePage’s veto statement focused on the part of the bill that would have prohibited employers from asking prospective employees to disclose their pay history during negotiations over their starting salary.  Governor LePage said, among other things, that “Maine’s employers are often their own HR departments.  Adding another law restricting a legitimate business practice places yet another burden on our employers.  If an employer cannot ask, they may end up making even lower offers than they normally would, resulting in lower wages.”

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After Maine recently passed an increase to the minimum wage, many Maine restaurant workers who depend on tips voiced serious concerns. They believed that the increased minimum wage would actually cause them to make less money. They feared that restaurant owners would raise prices and cut workers’ shifts. Some said that customers had begun to tip less because the customers assumed that the increased minimum wage made tips less important to servers. Due to these concerns, the Maine legislature recently passed a bill that reversed the increase in minimum wage that employers must pay to tipped workers and the Governor has signed that bill.

If the minimum wage increase for tipped workers had not been reversed, employers of tipped workers would have went from paying tipped workers a minimum wage of $3.75/hour in 2016 to $12/hour by 2024.  Employers of tipped workers will have to pay workers a minimum of $5/hour this year but in future years they will only have to pay them half of the minimum wage that non-tipped workers must receive.  What will not change is that if tips do not result in a tipped worker making at least the same minimum wage as a non-tipped worker, the employer of the tipped worker will have to make up the difference.

One of the Maine restaurant workers who organized the movement to reverse the rise in the minimum wage for tipped workers was Jason Buckwalter. He is now saying that he wants to take this movement to other places in the country where the minimum wages of tipped workers may be raised or have already been raised. But those who advocate for a higher minimum wage for restaurant workers say that they disagree with Buckwalter and others in his camp. “We do not believe what we see in Maine is representative of the majority of workers,” said Dave Palmer, the managing director of Restaurant Opportunities Centers United, a national group of low-wage restaurant workers.