• 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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BJ’s Wholesale Club and the representatives of a class of BJ’s Wholesale employees reportedly informed a federal court in Massachusetts earlier this month that they had reached a settlement agreement on the employees’ claims that BJ’s failed to pay them overtime. The class of BJ’s employees included loss prevention managers, asset protection managers, and personnel managers. The lawsuit alleged that BJ’s misclassified these managers as exempt from overtime. As a result of this misclassification, the employees had often worked more than 40 hours per week without overtime pay.

In addition to claims under the federal Fair Labor Standards Act (FLSA), the lawsuit also alleged violations of various state laws, including Maine’s wage and hour laws. The court still must approve the settlement but, if it does, it appears as though BJ’s employees in Maine will receive a share of the $2.7 million.

This settlement illustrates that employers do not have the final say on which employees are and are not entitled to overtime pay. Generally speaking, all employees are entitled to overtime pay unless their employer can show that they fit into one or more well-defined exemptions. If you believe that your employer has misclassified you as an exempt employee, who is not entitled to overtime pay, you should contact an experienced employment lawyer to learn more about your rights.

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Earlier this month, the U.S. Department of Labor (DOL) updated its guidance to employers and employees on the Family and Medical Leave Act (FMLA). The new guidance defines the term spouse under the FMLA as “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including ‘common law’ marriage and same-sex marriage.” The DOL updated its guidance in light of the Supreme Court’s decision in U.S. v. Windsor where the court found that the Defense of Marriage Act (DOMA) unconstitutionally prohibited same-sex spouses from receiving the same benefits under federal law as opposite-sex spouses. Same-sex marriage is legal in Maine and, as such, Mainers in same-sex marriages can now take FMLA leave to care for a spouse with a serious health condition. Even before this change in the federal FMLA, Mainers in same-sex marriages could take leave from work under Maine law to care for a spouse with a serious health condition but the federal FMLA provides for more leave than Maine law.

This new guidance from the DOL does not address the situation where a same-sex married couple gets married in a state where same-sex marriage is legal and then moves to a state where it is not. So, for instance, if a same-sex married couple from Maine moved to Texas, this DOL guidance does not address whether one spouse could take FMLA leave to care for the other if he or she suffered from a serious medical condition.

The Human Rights Campaign, a gay rights advocacy group, said the following about this new guidance from the DOL:

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Last month, a state court in New Jersey ruled that a casino’s policy of requiring waitresses to stay below a certain weight was not sex discrimination. The Borgata Hotel Casino & Spa had a policy which prohibited waitresses, called “Borgata Babes,” from gaining more than 7 percent of the amount they weighed when the casino hired them. To enforce this policy, the casino regularly weighed waitresses. To keep their jobs, some waitresses reportedly resorted to taking laxatives before weigh-ins or stopped taking prescription medication.

The court held that this policy did not constitute sex discrimination because the casino applied the weight limit to both men and women. Also, the court reasoned that the waitresses were made aware of the policy when they were hired and they agreed to abide by it.

While this case may have turned out differently if it were brought under Maine law, instead of New Jersey law, the case illustrates the fact that many policies that employers implement seem like they should be illegal even though they are not. One way for workers to fight back against these policies is to form a union. While one waitress may not be able to persuade her employer to change a weight policy, if all waitresses stand together, in the form of a union, they have more power to persuade their employer to make changes to its employment policies.

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One aspect of the Patient Protection and Affordable Care Act (ACA) (aka “Obamacare”) that has been in the news recently is the provision of the law that requires employers with 50 or more full-time employees (defined as employees who work 30 or more hours per week or 130 hours per month) to provide health insurance to these full-time employees. Many have argued that this mandate will lead employers to reduce the number of hours that employees work and/or reduce the number of employees they employ so that they don’t have to provide employees with health insurance. Law firms that advise employers have warned employers that these attempts to evade the mandates of the ACA could be illegal. See here, here, and here.

The ACA contains a “whistleblower” provision which, among other things, prohibits an employer from taking any adverse action against an employee because he received a subsidy or tax credit to purchase health insurance. This whistleblower provision was included in the ACA because of a concern that employers would fire employees who obtained these tax credits or subsidies since, if the employer was large enough, it could be fined for not providing those employees with health insurance. If you use a government subsidy or tax credit to purchase health insurance and your employer retaliates against you, contact an experienced employment lawyer immediately because the time limits to pursue legal action are short.

Law firms that advise employers have cautioned them that reducing employees’ hours so that they are no longer full-time, and not eligible for health insurance under the ACA, could violate section 510 of the Employee Retirement Income Security Act (ERISA). Section 510, among other things, prohibits an employer from taking adverse action against an employee with the intention of preventing that employee from becoming entitled to an employee benefit. So, while this argument has not been tested in the courts yet, it may very well be illegal for an employer to reduce an employee’s hours to prevent him from becoming entitled to health insurance under the ACA. If your employer has decided to reduce employees’ hours in order to evade the requirements of the ACA, you should also contact an experienced employment lawyer to learn more about your rights.

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General Dynamics announced in April 2013 that it planned to lay off 110 employees in Saco, Maine – about one-third of its work force – beginning on June 14, 2013 and continuing through July 1, 2013. Those laid off were to include salaried and hourly-wage employees who were involved in the production of heavy machine guns and auto-grenade launchers as part of General Dynamics’ Armament and Technical Products unit (“GDATP”). The facility in Saco, which already laid off 30 workers last fall, makes large, heavy weapons that are operated by two or more people.

Before the announcement of these lay-offs, according to the Portland Press Herald, the General Dynamics’ plant was awarded a $14.3 million contract extension earlier this year for specialized machine-gun barrel kits being made for the Army. Also, in January, the Saco City Council voted to forgive General Dynamics as much as $100,000 in property taxes over the next six years as part of a tax increment financing package that would allow the company to move forward with an expansion plan.

Despite a legitimate reason to reduce the size of its workforce, an employer may not use a lay-off, or Reduction in Force (“RIF”), as an opportunity to discriminate against disabled employees or others in protected classes. “Even if the employer has a compelling reason wholly unrelated to the disabilities of any of its employees to reduce the size of its work force, this does not entitle it to use the occasion as a convenient opportunity to get rid of its disabled workers. This point is most easily seen by thinking of a RIF as a kind of hiring: the employer has decided to reduce its work force from, say, 100 to 80 employees; this means it has 80 slots to fill and in filling them must choose among 100 ‘applicants.’ The law forbids the employer to disqualify the disabled applicants on the basis of their disability unless the disability prevents them from doing the work even with a reasonable accommodation.” Matthews v. Commonwealth Edison Co., 128 F.3d 1194, 1195 (7th Cir.1997)(Internal citations omitted).

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Last week, the Massachusetts Supreme Judicial Court held for the first time under Massachusetts law that an employer may not discriminate against an employee because of that employee’s association with a disabled person. In Flagg v. Alimed, Inc., Alimed fired Marc Flagg after 18 years of service to the company because his wife developed a cancerous brain tumor and required expensive medical treatment. So that it did not have to continue to carry Mr. Flagg and his wife on its health insurance plan, Alimed fired Mr. Flagg. After Alimed fired him, Mr. Flagg and his wife had no health insurance and they had to use their retirement savings to pay for her medical care.

Unlike the Maine Human Rights Act, Massachusetts’ disability discrimination law does not expressly prohibit discrimination against an employee because of his association with a disabled person. Nevertheless, the Massachusetts Supreme Judicial Court held that its law prohibited such discrimination because people like Mr. Flagg are “regarded as” disabled. “When an employer takes adverse action against its employee because of his spouse’s impairment, it is targeting the employee as the direct victim of its animus, inflicting punishment for exactly the same reason and in exactly the same way as if the employee were handicapped himself,” the Court said.

Unfortunately, Alimed’s treatment of Mr. Flagg and his family is not uncommon. If your employer has fired you or plans to fire you because you or a member of your family has a disability which requires expensive medical care, you should contact an experienced employment lawyer to learn more about your rights.

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Earlier this year, the Maine Department of Labor issued a report on the number of workplace deaths in Maine in 2011, the most recent year of available data. The report showed that more people died in the workplace during 2011 than during any year since 2003. In 2011, workers died in the workplace at a rate of 4.2 deaths per 100,000 workers, a rate greater than the national average of 3.5 deaths per 100,000 workers.

Transportation related incidents were the most common type of fatal event for workers in 2011. This may come as a surprise to some who think fishing, logging, or construction would be riskier than driving. “In many of those jobs,” however, “people have taken many precautions to avoid those injuries,” said Michael Bourque, senior vice president for external affairs at the Maine Employers’ Mutual Insurance Co., which provides workers’ compensation insurance to Maine companies. “Maybe that says something about our complacency. It’s the stuff you don’t think about, it’s the driving you do every day that’s as risky as anything people do at work.”

The relatively high number of transportation related fatalities in Maine should serve as a warning to commercial drivers. Unfortunately, it is all too common for employers to expect drivers to skirt U.S. Department of Transportation (DOT) rules designed to protect the safety of the drivers and other motorists on the road. For example, companies too often expect drivers to drive more hours than DOT rules allow. If you are a driver and you have decided to take a stand against your employer asking you to violate DOT rules, you should contact an experienced employment lawyer to learn about legal protections against retaliation.

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Yesterday, the Senate Health, Education, Labor and Pensions Committee (HELP Committee) voted to approve the Employment Non-Discrimination Act (ENDA). ENDA would make employment discrimination on the basis of sexual orientation and gender identity illegal. ENDA passed with bi-partisan support. All of the Democrats on the HELP Committee voted for it and three Republicans also voted for it. Senate Majority Leader Harry Reid (D-NV) said he expects to bring ENDA up for a vote on the Senate floor later this year. It is unclear at this point whether John Boehner (R-OH), who is Speaker of the House of Representatives, would bring ENDA up for a vote in the House of Representatives.

“It’s mostly because of people coming out to their families, reporters and churches,” said Mara Keisling, Executive Director of the National Center for Transgender Equality, about the progress on ENDA. “Everybody knows a gay person now, and more and more people know a trans person. It’s an issue that 20 years from now, opponents are going to be ashamed to have opposed.”

Maine’s entire congressional delegation (Sen. Collins, Sen. King, Rep. Michaud, and Rep. Pingree) supports ENDA. While Maine already has a law that prohibits employment discrimination on the basis of sexual orientation and gender identity, the majority of states do not.

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firefighter.jpgEarlier this week, the Maine Supreme Court held that the City of Augusta could not evade its obligation under a collective bargaining agreement (CBA) to pay for retired firefighters’ health insurance. The City had argued that it could stop paying the premiums on this insurance because the CBA had expired. The Maine Labor Relations Board rejected this argument and so did the Court. Relying on the well established “static status quo” doctrine, the Court held that the City had to continue to comply with the expired CBA while a new CBA was being negotiated.

“This case was a dispute over whether certain items in the contract continued post-expiration,” said Douglas L. Steele, the attorney who represented the firefighters’ union. “The Maine Labor Relations Board decided they do. If management could withhold something, it would put a lot of pressure on employees. The static status quo is designed to say you’re negotiating and you both need to play by the same set of rules to get an agreement.”

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Last week, Governor LePage vetoed a bill that we previously reported on which would have protected employees who need to breastfeed or express breast milk at work from discrimination. This week, the Maine House failed to override Governor LePage’s veto. The editorial board of the Bangor Daily News expressed its disagreement with Governor LePage on this issue. The Bangor Daily News editorial made the point that the bill which Governor LePage vetoed would have improved the legal process for protecting employees who breastfeed because it would’ve permitted the Maine Human Rights Commission to resolve complaints without the need for a lawsuit.

“If we truly value full equality for working mothers in the workplace, we need effective measures to protect their rights,” said Rep. Anne Graham, D-North Yarmouth, the bill’s sponsor and a pediatric nurse practitioner. “This bill is also needed for the children of working mothers, who also deserve the long-term health benefits that the nutritional and infection-fighting properties of breast milk provide.”

In response to Governor LePage’s rationale for his veto, that Maine law already protects breastfeeding mothers from discrimination, Graham said that the only recourse for a mother whose employer refuses to let her express breast milk at work “is to bring a complaint to the state Department of Labor, if she is still employed, or, if she has lost her job, to ask the local district attorney to bring a suit. In either case, the most severe sanction against the employer is a $500 fine that goes to the state, not the mother. Nothing in current law requires an employer to rehire a worker who was fired for nursing.”

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