Maine Employment Lawyer Blog

Published on: March 19, 2015

Court permits employer to use arbitration to blunt lawsuit for wage theft

Earlier this year, a federal appeals court in the Midwest issued a decision that allowed an employer to potentially escape liability for illegally depriving its employees of wages. The case involved a chain of restaurants called Gusano’s Pizza that allegedly used an illegal tip pooling scheme to deprive employees of lawfully earned wages.

A group of former employees filed the case against Gusano’s as a “collective action” under the federal Fair Labor Standards Act (FLSA). In a FLSA collective action, workers must express their desire to join the case as a plaintiff, which is sometimes called “opting in” to the case. This “collective action” procedure differs from a traditional class action. In a traditional class action courts presume that workers want to be part of the case unless the workers express their desire to “opt out.” FLSA does not allow workers to bring a traditional “opt out” class action; they must use the “opt in” collective action procedure in order to band together in a case against the employer.

After the former employees filed their FLSA lawsuit against Gusano’s, the restaurant chain made its employees enter into an arbitration agreement that required the employees to bring FLSA claims in arbitration. Unless a Gusano’s employee openly defied the wishes of his employer and refused to agree to this arbitration agreement, he could no longer opt in to the former employees’ collective action because the agreement required him to bring his wage theft claims in arbitration.

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Published on: March 13, 2015

Silicon Valley sex discrimination case includes subtle forms of sex discrimination

By Maine Employee Rights Group

Last month, a sex discrimination trial began in which Ellen Pao, a former junior partner at venture capital firm Kleiner, Perkins, Caufield & Byers, has alleged that Kleiner Perkins refused to promote her and forced her out because of her sex. The trial will include evidence of lurid sexism but, perhaps more interestingly, will also include evidence of subtle forms of sex discrimination.

During the trial, Pao’s lawyers plan to present evidence that male partners of the firm sometimes treated women in overtly sexist ways. For example, a male partner, Ajit Nazre, once allegedly knocked on the hotel room of a female employee while he was wearing nothing but a bathrobe. Nazre also allegedly sexually harassed a female employee at a meeting when he rubbed her with his leg under the table. Another male partner gave Pao a book of erotic poetry and nude sketches. Still another male partner allegedly told Pao that women “kill the buzz.”

While this is certainly powerful evidence of a sexist firm culture, Pao’s lawyers also plan to introduce more subtle evidence of sex discrimination that is actually more common in the workplace. For instance, Pao claims that she was criticized for being too passive and not speaking up enough. But she was also criticized for being pushy and speaking up too much. These contradictory critiques of Pao’s performance are a commonly cited problem for women who are trying to climb the promotional ladders in workplaces like this.

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Published on: March 6, 2015

When will the United States catch up with the rest of the world on paid maternity leave?

By Maine Employee Rights Group

The United States is one of the few countries in the world that does not require employers to provide paid maternity leave to employees. A U.N. study of 185 countries found that the United States, Papua New Guinea, and Oman are the only countries that do not provide paid maternity leave. The United States offers unpaid maternity leave in some circumstances but, even if mothers qualify for it, many families cannot afford to go long without the mother’s income. So, after having a baby, many American families stress and worry about money during a mother’s maternity leave; many mothers must return to work before they or their newborn babies are ready; and many mothers must leave the workforce because they aren’t entitled to maternity leave at all.

Although there is no federal law in the United States that requires employers to offer paid maternity leave, California, New Jersey, and Rhode Island have laws that require employers to offer mothers some pay during their maternity leaves. Even so, according to data from the U.S. Bureau of Labor Statistics, only about 12 percent of U.S. workers have access to paid maternity leave.

Even though they are not legally required to, some employers have instituted paid maternity leave policies. These employers include Google and now Vodafone.

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Published on: February 27, 2015

MHRC finds against Tambrands in age discrimination investigation

By Maine Employee Rights Group

This week the Maine Human Rights Commission (MHRC), in Augusta, unanimously found reasonable grounds to believe that Tambrands discriminated against an East Dixfield man, Allen Ackley, when it asked him questions during its hiring process that required him to reveal his age. Mr. Ackley reportedly applied for a plant technician job with Tambrands, which is a part of Procter & Gamble Co. During the hiring process, the company asked Mr. Ackley, who was 59 at the time, for the dates when he graduated from educational institutions and required him to complete a form that called for his date of birth.

The MHRC has established guidance, readily available on its website, which states that employers may not ask for this type of information, which reveals an applicant’s age, during the hiring process. The guidance, called a “Pre-Employment Inquiry Guide,” says that employers may ask applicants if they are under 18 years old but other than that, “questions about date of birth or age” are prohibited. Employers also may not ask for applicants’ “dates of graduation from educational institutions.” This guidance relates to a provision of the Maine Human Rights Act which states that employers may not “prior to employment…elicit or attempt to elicit information directly or indirectly pertaining to…age.”

There is no indication that Mr. Ackley went through an atypical hiring process at Tambrands. Consequently, Tambrands may routinely violate this portion of the Maine Human Rights Act when it screens applicants for hire. Now that the MHRC has found reasonable grounds to believe that Tambrands violated the Maine Human Rights Act, it will attempt to settle the dispute between Tambrands and Mr. Ackley through a process called conciliation. As part of that conciliation process, it is possible that the MHRC will request that Tambrands change its hiring process so that it conforms to the requirements of the Maine Human Rights Act.

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Published on: February 20, 2015

If your employer fired you after saying “you are no longer capable of” doing your job “because you are old,” would you consider her statement evidence of age discrimination?

By Maine Employee Rights Group

A federal court in Puerto Rico, incredibly, held that no reasonable person could find that this statement showed that the employer fired her employee because of his age. As such, the Puerto Rico court, using a procedure called “summary judgment,” dismissed the case without letting a jury decide whether age discrimination had occurred. Today, the First Circuit Court of Appeals in Boston reversed that court’s decision in Soto-Feliciano v. Villa Cofresi Hotels, Inc. et al.

After over a decade of working for the Villa Cofresi Hotel as a chef, the hotel fired Mr. Soto on March 10, 2010. Less than a month before his termination, Mr. Soto had a meeting with Sandra Caro, the hotel’s head of human resources and member of the family that owned the hotel. During this meeting, Mr. Soto claims that Ms. Caro said the following to him: “You are no longer capable to work at the line because you are old. I am going to bring in a new chef. Maybe I can let you work only in banquets. You need some long vacations because you are old and slow at the line. We at the Hotel Villa Cofresi are moving up, not down.”

If Ms. Caro made this statement, a reasonable person could definitely conclude that Ms. Caro factored Mr. Soto’s age into her decision when she made the decision to fire him less than a month later. However, this statement was not the only evidence of age discrimination that Mr. Soto’s attorney presented to the Puerto Rico federal court. In addition to Ms. Caro’s statement, Mr. Soto testified that his direct supervisor repeatedly told him that he was “too old” and “too slow.” Mr. Soto’s attorney also presented evidence that the hotel’s supposed reason for firing Mr. Soto—that he made profane and disrespectful comments to other employees—was just a pretext, or excuse, for discrimination.

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Published on: February 12, 2015

Court orders Regis to reinstate Maine Employee Rights Group client with back pay

By Maine Employee Rights Group

In October last year we reported on a federal jury verdict that the Maine Employee Rights Group had obtained for our client Valerie Peasley. The jury found that Regis Corporation, which owns and operates the hair salon in Bangor where Ms. Peasley worked, unlawfully fired Ms. Peasley because she blew the whistle on people using and selling illegal drugs in the workplace. The jury awarded Ms. Peasley $120,000.

Last week, the court awarded Ms. Peasley an additional amount of over $20,700 for back pay and lost employee benefits. The court also ordered Regis to reinstate Ms. Peasley to her former position at the hair salon. Regis objected to reinstatement, arguing that returning Ms. Peasley to the hair salon would be a “recipe for future antagonism and problems.” The court held that the “overarching preference” under employment discrimination laws is to reinstate unlawfully terminated employees to their former positions. Potential hostility in the workplace upon the employee’s return is not a sufficient reason to deny reinstatement. Citing a First Circuit case, the court reasoned that “the goals of Title VII would be ill served if we permitted such routine antagonism to be an adequate ground for denying reinstatement.”

Published on: February 6, 2015

Federal appeals court holds that company with religious mission is immune from discrimination claims of former employee

By Maine Employee Rights Group

This week, the U.S. Sixth Circuit Court of Appeals held that a former employee of InterVarsity Christian Fellowship/USA (“IVCF”) could not sue it for sex discrimination because of the religious natures of IVCF’s business and her job. The former employee, Alyce Conlon, alleged that IVCF fired her because it did not think she did enough to reconcile her marriage with her husband. Conlon argued that this was sex discrimination because IVCF treated her differently than male employees who divorced their wives.

IVCF is a “Christian organization, whose purpose is to advance the understanding and practice of Christianity in colleges and universities.” Conlon worked as a “spiritual director” for IVCF. Part of Conlon’s job involved assisting people to cultivate an “intimacy with God and growth in Christ-like character through personal and corporate spiritual disciplines.”

The U.S. Supreme Court has held that there is a “ministerial exception” to employment discrimination laws. This ministerial exception immunizes religious organizations from lawsuits that challenge the organizations’ decisions on who to employ as “ministers.” This ministerial exception is based on the First Amendment, which restricts government interference with religious institutions. Given the religious nature of IVCF’s business and Conlon’s job, the Sixth Circuit held that the ministerial exception applied. In reaching this decision, the Sixth Circuit analyzed various factors, including Conlon’s job title and her job duties. The court also noted that IVCF qualified for the ministerial exception even though it was a multidenominational organization, instead of a church or an organization affiliated with only one Christian denomination.

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Published on: January 30, 2015

Exxon Mobil adopts policy barring discrimination against LGBT individuals

By Maine Employee Rights Group

Exxon Mobil, the giant oil and gas corporation based in Texas, announced today that it has decided to change its equal employment opportunity (EEO) policies so that they now prohibit discrimination against lesbian, gay, bisexual, and transgender (LGBT) individuals. Exxon Mobil has been under pressure for years to amend its EEO policies to add protections for LGBT individuals. Despite this pressure, it consistently refused to change its EEO policies. The federal government, though, has now begun to implement an executive order that prohibits federal contractors from discriminating against LGBT individuals. Exxon Mobil is a federal contractor that receives millions of dollars from the federal government.

This past summer, Exxon Mobil claimed that its “zero tolerance” policies ensured protection for LGBT individuals even though those policies did not explicitly say that they prohibited sexual orientation or gender identity discrimination. The Human Rights Campaign (HRC), an organization that advocates for the rights of LGBT individuals, called Exxon Mobil’s claim “a lie.” This past summer, Fred Sainz, HRC’s VP for Communications, said that, “Exxon Mobil’s Equal Employment and Opportunity Policy has clearly and consistently omitted enumerated LGBT non-discrimination protections for its personnel. Though their statement sounds like it’s taking a very progressive stand, it is in fact a master class in doublespeak—crafted, no doubt, by a team of well-paid lawyers. Until a nondiscrimination policy is enumerated, it isn’t worth the paper it’s printed on.”

HRC sees this recent change to Exxon Mobil’s EEO policy as a positive development but has not given Exxon Mobil much credit for making the change. “This wasn’t prompted by a change of principles or corporate values, it represents Exxon’s response to President Obama’s July 2014 executive order that prohibits federal contractors from discriminating against LGBT people,” said Deena Fidas, HRC’s Workplace Equality Program Director. “Exxon had to include these explicit workplace protections or risk losing its federal contracts,” said Fidas.

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Published on: January 23, 2015

McDonald’s corporation sued for its franchisees’ race and sex discrimination

By Maine Employee Rights Group

A group of former McDonald’s employees have sued the McDonald’s corporation and the franchises where they worked for race and sex discrimination. The employees who filed the lawsuit worked for McDonald’s restaurants in Boston and Clarksville, Virginia. Their allegations of discrimination include claims that the restaurants believed that their employees were too “dark.” So, the plaintiffs claim, the restaurants fired black and Hispanic employees so that they could replace them with white employees. The female plaintiffs also claim, among other things, that they experienced sexual harassment, including inappropriate touching and sexual comments.

This lawsuit is particularly noteworthy because of the claims against the McDonald’s corporation. The McDonald’s business model involves contracting with smaller independent companies, called franchisees, and letting those franchisees run the restaurants. This business model normally gives the corporation, called the franchisor, the advantage of limiting its liability from lawsuits. That way, if a customer, for example, gets injured because of a restaurant employee’s negligence, the customer can sue the franchisee but not the franchisor. In this race and sex discrimination lawsuit, however, these former employees allege that McDonald’s corporation exercises so much control over its franchisees that they are no longer independent.

The plaintiffs in the lawsuit allege, among other things, that McDonald’s corporation controls its franchisees through policies and manuals that govern every aspect of restaurant operations; continual oversight by corporate representatives; control over franchisee employees’ schedules and assignments; comprehensive training of all employees; and hiring decisions. Given this amount of control, the plaintiffs argue that the franchisor-franchisee relationship is just a legal fiction. Given the realities of the relationship between McDonald’s corporation and its franchisees, the plaintiffs argue, the McDonald’s corporation should be held responsible for the discriminatory actions of its franchisees.

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Published on: January 14, 2015

In pregnancy discrimination case, court rejects employer’s argument that it didn’t know plaintiff was pregnant

By Maine Employee Rights Group

Last week, a federal court in Massachusetts held that a reasonable jury could find that the Salter School discriminated against former employee Victoria Domenichetti because she was pregnant and would need maternity leave. Ms. Domenichetti worked as the Externship Coordinator at the Salter School’s Fall River campus, which is a career training school. The Salter School reduced Ms. Domenichetti’s hours from full-time to part-time shortly after she submitted paperwork requesting maternity leave.

The Salter School argued that a member of upper management, William Anjos, made the decision to reduce Ms. Domenichetti’s hours and he had no idea that Ms. Domenichetti was pregnant and would need maternity leave. As such, according to the Salter School, a jury could not reasonably find that it discriminated against Ms. Domenichetti because of her pregnancy and need for maternity leave because Mr. Anjos had no idea she was pregnant when he decided to reduce her hours. The court rejected this argument. Even assuming that Mr. Anjos didn’t know that Ms. Domenichetti was pregnant, the court held that a jury could reasonably find that the Salter School discriminated against Ms. Domenichetti because Mr. Anjos based his decision on input from someone who did know that Ms. Domenichetti was pregnant and would need maternity leave. Mr. Anjos relied on the input of the Fall River campus President, David Palmer, when he made his decision to reduce Ms. Domenichetti’s hours; there was no dispute that Mr. Palmer knew that Ms. Domenichetti was pregnant and would need maternity leave when he offered his input.

The argument that the Salter School made in this case is not uncommon. In the face of discrimination charges, many employers choose to put forward a person who did not know the complainant well and then claim that he made the decision to take adverse action (such as, termination, demotion, or suspension) against the complainant. The employer will argue that this supposed decisionmaker did not know that the complainant was pregnant, or disabled, or in need of medical leave, or had some other protected trait, and, thus, he could not have discriminated against the complainant because of her protected trait. The problem with this strategy, however, is that managers who do not know an employee rarely take adverse actions against the employee without getting input from a manager who knows the employee and that the employee is pregnant, disabled, in need of medical leave, etc. These managers who provide this input are often the ones behind the discriminatory treatment.