• 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 Federal Motor Carrier Safety Administration (FMCSA) is starting a pilot program that will allow some truck drivers under the age of 21 to drive trucks across state lines.  In Maine, you can get a commercial driver’s license (CDL) when you are 16 years old but federal regulations require you to be 21 to drive across state lines.  Only drivers who operated heavy vehicles in the military will be eligible to participate in this FMCSA pilot program.

According to the FMCSA, the “purpose of the Under 21 pilot program will be to determine whether persons under the age of 21 can safely operate CMVs in interstate commerce, and to enhance opportunities for persons with relevant military training to enter the CMV industry. While many intrastate CMV drivers are already in this age group, the Agency is not aware of any studies or published reports comparing their safety performance with that of drivers over 21, either interstate or intrastate.”

Members of Congress introduced a bill earlier this year to lower the commercial truck driving age to 18.  There is a shortage of truck drivers that has been creating problems for businesses who need trucks to ship their goods.  One way to increase the number of truck drivers would be to increase the amount of pay they make but lowering the age of drivers could also increase the number of truck drivers.

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In Minnesota, the legislature is debating a bill that would expand the types of sexual harassment that would violate state law.  The bill would overturn court decisions which require sexual harassment to be “severe or pervasive” to be illegal.  If passed, this bill would provide a powerful incentive to employers to do even more to address the epidemic of sexual harassment in the workplace.

Both federal and state courts use the “severe or pervasive” standard to distinguish between harassment that an employee can sue her employer for and harassment that she cannot.  There are numerous examples of court cases where courts applied this standard and dismissed cases where many people believe the harassment should have been unlawful.  For example, in one case from Alabama, a court held that harassment was not “severe or pervasive” even though it included a man doing things to a female subordinate such as knocking her over onto a couch and asking her to “blow” him; propositioning her for sex; referring to women as “tramps,” “sluts,” and “bitches;” playing with his zipper in front of her while saying “hey babe;” and other crude sexist conduct.

If this Minnesota bill becomes law, it is unclear where Minnesota courts will draw the line between actionable harassment and unactionable harassment.  They could decide that any sexual harassment, no matter how severe or pervasive, is actionable.  In which case, women who experienced minor forms of sexual harassment could get very small amounts of monetary relief if they sued.  But perhaps even more important than providing some monetary relief, those lawsuits could permit the courts, through their powers to order “injunctive relief,” to force employers to take actions to better prevent and correct sexual harassment.

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Last week, a federal judge held that a jury could reasonably find that Hannaford fired one of the Maine Employee Rights Group’s (MERG) clients because of his age, disabilities, and need for medical leave.  MERG’s client worked for Hannaford for over thirty years and served as the Produce Manager at the Waldoboro Hannaford store when Hannaford fired him.  At the time of his termination, he was 58 years old; suffered from heart disease, knee and back impairments, and a shoulder injury; and had repeatedly needed medical leaves due to his medical conditions.  Hannaford fired MERG’s client on the day he returned from a medical leave.

Before MERG’s client went out on medical leave, the Waldoboro store was planning to undergo a major remodel and expansion which would increase both the sales volume of the store and the stress on the store’s employees.  The store manager asked MERG’s client whether he could “handle” the stress associated with the expansion but there was evidence that he did not ask other managers in the store—who were younger and not disabled—this same question.

While MERG’s client was out on medical leave, Hannaford claims it received information indicating that MERG’s client was not complying with food safety policies relating to the preparation of cut fruit.  Hannaford launched a food safety investigation and the store manager and an associate relations manager met with MERG’s client in connection with that investigation on the day he returned from medical leave.  During this meeting, the store manager claims MERG’s client admitted that he knowingly violated food safety policy and that is why Hannaford claims it fired him.  MERG’s client denies that he admitted to violating policy and says that no one even asked him if he thought he was violating food safety policy.

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This week a Federal judge in Maine denied, in large part, Hannaford’s motion to throw out a lawsuit filed by the Maine Employee Rights Group (MERG).  MERG argued that Hannaford violated disability discrimination and medical leave laws when it refused to modify our client’s schedule.  As a result, the case is slated to go to trial later this year.

MERG’s client works as an Assistant Manager in the Meat Department of the Waterville, Maine Hannaford store.  He suffers from Lyme disease and, due to this disability, he asked Hannaford for a modified schedule as a reasonable accommodation which would allow him to start and finish work earlier in the day.  He needed this early schedule because his Lyme disease symptoms (which include fatigue, dizziness, and pain) escalate in the late afternoon.  Our client had been working this early schedule for a long time, without any problems, and then Hannaford changed his schedule to make it consistent with the schedules of Assistant Meat Department Managers in other stores.  Even though our client got a note from his doctor supporting his request for the early schedule, Hannaford denied the request.  The judge held that a reasonable fact-finder could determine that Hannaford’s denial of our client’s request violated his right to reasonable accommodations and was discriminatory under state and federal disability discrimination laws.

After Hannaford denied our client’s request to go back to his old schedule, he asked for a reduced leave schedule under the FMLA.  Under the FMLA (state and federal), eligible employees are entitled to a reduction in their hours if they need such a reduction due to a serious health condition.  Our client still thought he was entitled to start and finish work earlier, as a reasonable accommodation for his disability; but because Hannaford denied that request, he and his doctor asked Hannaford to reduce his schedule so that he would consistently finish work in the mid-afternoon.  Hannaford denied this request as well.  To add insult to injury, Hannaford also retaliated against our client for requesting a modified schedule by refusing to let him punch-in early.  The judge held that a reasonable fact-finder could determine that Hannaford violated our client’s rights under the FMLA and unlawfully retaliated against him when it refused to let him punch-in early.

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Uber recently capitulated to public pressure and decided to no longer require victims of sexual harassment or assault to bring their individual claims against the company through arbitration. Uber, like many companies, puts arbitration clauses into the fine print of agreements that employees, drivers, and passengers must agree to in order to do business with Uber. Just about no one reads this fine print and many probably would not understand what the fine print meant even if they read it.

Arbitration, when used appropriately, can be an efficient and fair process. It can be fair when the parties to the agreement have equal bargaining power and one party does not have a built-in advantage over another if a dispute goes to arbitration. For example, companies and unions often agree to use arbitration and that process is usually fair and efficient. However, the way Uber and many other companies use arbitration, serious problems can get swept under the rug and go unaddressed because arbitration is often secretive and slanted in favor of large companies.  (Please see other posts on this blog regarding arbitration for an explanation of why it is problematic.)

For these reasons, Uber faced increasing pressure to permit sexual harassment and assault victims to pursue claims against the company in court, instead of through arbitration. Interestingly, Uber only exempted sexual harassment and assault claims from the arbitration process. So, for example, if the company systematically discriminated against racial minorities, those claims would still have to go through the unfair arbitration process. Furthermore, Uber’s arbitration fine print still does not permit people to file class actions against the company for sexual assault or harassment.

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This week, the Supreme Court held in the Epic Systems case that corporations may legally force employees to choose between their jobs and their right to bring class or collective actions for wage theft—which really is not a choice at all. The vast majority of employees cannot refuse their employers’ demands to relinquish their rights to bring class or collective actions  because they cannot afford to lose their jobs.

The Supreme Court Justices split 5-4 in this controversial decision. Justice Gorsuch wrote the Court’s opinion and Justice Ginsburg wrote a dissenting opinion that Justices Breyer, Kagan, and Sotomayor joined. Justice Ginsburg’s dissent described the horrible injustices that will occur due to this wrongly decided case. Because of the Court’s decision, many employees will have no choice but to pursue wage theft claims against their employers on an individual basis, which, as Justice Ginsburg explained, will allow an increasing number of corporations to get away with wage theft.

Justice Ginsburg’s description of the events likely to unfold as result of this decision was spot on:

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Starbucks has decided to institute company-wide training on implicit bias. The company’s decision came on the heels of an incident where Starbucks employees called the police to remove some black people from the store for doing something that white people do all the time. These black people were waiting for a friend before they bought their coffee. It is, of course, possible that conscious racism against black people motivated these employees to call the police. However, it is more likely that implicit bias, motives that people don’t think about but that cause them to act in certain ways, caused these Starbucks employees to call the police.

Psychologists have studied the phenomenon of implicit bias for decades. Pretty much everybody has an implicit bias against certain groups of people and in favor of other groups of people. For instance, regardless of how much they abhor racism, almost everyone who is not black has implicit bias against black people which unconsciously drives their actions when they interact with black people.

One of the consultants assisting Starbucks believes that companies need to implement systems where employees work together to combat implicit bias, as opposed to asking individuals to police their own biases. “Any strategy that essentially relies on people to try not to be biased is doomed to fail; that’s the heart of the problem,” said David Rock, director of the NeuroLeadership Institute. “You’ve got to shift the focus from individuals trying not to be biased to teams being able to catch bias,” he said.

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Our law firm receives many calls from people who are experiencing sexual harassment at work.  They usually want to know their rights and some advice on what they can do to try to get the harassment to stop.  Our firm is happy to help but there is also another resource that everyone concerned about sexual harassment in the workplace should know about – MaineCanDo.org.

MaineCanDo.org sprung out of the #metoo movement.  It contains helpful resources and guidance for individuals and organizations, including victims of sexual harassment and people who want to help victims.  You can go to the website if you want information about your rights and how you can enforce them.  There are also links to resources for victims of sexual harassment, such as the advocates at the Maine Coalition Against Sexual Assault (MECASA).

An increasing number of employers are taking the #MaineCanDo pledge to do more to prevent and address sexual harassment in their workplaces.  MaineCanDo.org also contains a lot of helpful information for employers to assist them in combatting sexual harassment in their workplaces.  If your employer is not on the list of organizations that has taken the #MaineCanDo pledge, you may want to ask your employer if it will take the pledge.

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Bush_signs_in_ADA_of_1990-300x199Last week, a federal judge held that a jury could reasonably find that O’Reilly Auto violated the rights of a Maine Employee Rights Group (MERG) client when it (a) refused to provide him with a reasonable accommodation for his disabilities, (b) discriminated against him because of his disabilities, and (c) retaliated against him for requesting a reasonable accommodation for his disabilities.  Because a jury could reasonably find in favor of MERG’s client, the case will now go to trial and a jury will determine whether O’Reilly Auto violated our client’s rights under the federal Americans with Disabilities Act (ADA) and the Maine Human Rights Act (MHRA). 

In 2015, MERG’s client was the store manager at O’Reilly Auto’s Belfast, Maine store.  MERG’s client lives with the disabling conditions of Attention Deficit Hyperactivity Disorder (ADHD), Tourette Syndrome, and Major Depressive Disorder.  In late May and early June, 2015, MERG’s client worked abnormally long hours because he had to fill in for two employees who had been terminated.  After a couple weeks of working this abnormally long schedule, MERG’s client began to experience dizziness, severe headaches, increased frequency of his pre-existing tics, and fatigue.  On June 4, 2015, MERG’s client had a “meltdown” due to his disabilities during which he experienced a number of new symptoms, including difficulty concentrating. 

MERG’s client went to his health care provider because of this meltdown.  She gave him a note which said that he “should not be scheduled for more than 9 hours 5 days a week” because of his mental health issues and he asked O’Reilly Auto to comply with these restrictions.  In response to concerns raised by O’Reilly Auto about this request, MERG’s client made clear to O’Reilly Auto that even though his health care provider did not want it to schedule him for more than 9 hours per day 5 days per week she agreed that he could work unscheduled hours, on top of his normally scheduled hours, if necessary.  O’Reilly Auto denied our client’s scheduling request because it claimed that he could not perform the essential functions of a store manager with these scheduling requirements. 

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The U.S. Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against Walmart alleging that the company violated the Americans with Disabilities Act (ADA) when it failed to provide a reasonable accommodation to an employee with a disability that worked in Augusta.

According to the EEOC, the employee that Walmart discriminated against developed a disability which rendered her unable to perform any jobs except greeter and fitting room associate. The employee worked in the Augusta store and there were no open greeter or fitting room associate positions in that store. As such, Walmart terminated the employee.

The EEOC argues that Walmart had an obligation, under the ADA, to reassign the employee to another store if another store had open greeter or fitting room associate positions. As it so happens, according to the EEOC, the Waterville EEOC store had an open fitting room associate position that the employee who got fired could have filled.