• 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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This week a federal judge in Connecticut held that an employer violated a medical marijuana user’s rights when it refused to hire her due to a positive drug test.  The woman uses medical marijuana, which is legal in Connecticut, to treat her post-traumatic stress disorder (PTSD).  The woman sued the employer under a state law that prohibits employment discrimination against medical marijuana users.

The employer argued that it had to refuse to hire the woman because it is a federal contractor subject to the requirements of the Drug Free Workplace Act (DFWA).  The court held that the DFWA requires employers to make a “good faith effort” to maintain a drug free workplace but it does not require drug testing.  The court also held that the DFWA does not prohibit a federal contractor from employing someone who uses illegal drugs outside of the workplace.

The employer next argued that the federal False Claims Act (FCA) prohibits it from employing someone who uses marijuana.  The court rejected this argument because no federal law prohibited the employer from employing someone who uses medical marijuana outside of work.

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Governor LePage recently signed onto a brief filed with the U.S. Supreme Court that asks the Court to review and overturn a decision from the U.S. Sixth Circuit Court of Appeals which held that federal law prohibits employment discrimination against transgender workers. The Sixth Circuit’s holding does not apply to Maine because it covers only certain states in the Midwest. Furthermore, Maine state law explicitly prohibits discrimination against transgender workers. Thus, one should ask why Maine’s governor would get involved in this fight since, no matter what the U.S. Supreme Court does, transgender Mainers will still be protected from employment discrimination.  It certainly looks like he got involved because he thought hostility toward transgender people could help him politically.

The Sixth Circuit is not alone in holding that laws which prohibit sex discrimination cover discrimination against transgender people. For example, the Eleventh and Seventh Circuit Courts of Appeals have both found that discrimination against someone because they are transgender is sex discrimination.

Some have warned that LePage’s needless attack on transgender workers could hurt Maine’s efforts to attract workers from other states to move here. “Viewed simply from an economic development and workforce perspective, these actions aren’t helpful,” said Ed McKersie, founder and president of the Portland staffing and recruiting firm Pro Search Inc. “We want everyone to see our state as welcoming, especially when workforce retention and attraction are so critical to the future of Maine.”

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A federal judge has recently ruled that he had no choice but to dismiss the wage theft claims of thousands of Chipotle employees because of the Supreme Court’s decision from last year in Epic Systems v. Lewis.  In order to keep or get their jobs with Chipotle, the company forced these employees to give up their right to band together in a class action against the company.  Many of these employees did not even realize they were giving up this right.

Now, in order to pursue their claims, these workers will have to file claims individually against the company through arbitration.  Their claims range from $50 to a few thousand apiece.  The company obviously knows that someone with a small claim is not going to shoulder the burden of pursuing a claim against the company.  That is the whole point of the class action waiver—to allow the company to get away with wage theft.  Luckily for these employees, the attorneys representing the class are willing to represent these individuals in arbitration.

As a result of the Epic Systems decision, lawyers that represent workers are going to have to find ways to combat wage theft without the efficient mechanism of a class action.  One possible way they can do that is through the use of a legal argument called “offensive collateral estoppel.”  Theoretically, using this legal argument, attorneys for workers can (1) bring one worker’s claim against a company that has engaged in widespread wage theft, (2) get a ruling from an arbitrator in the worker’s favor on that claim, and (3) then use that ruling to argue that every subsequent worker who brings the same claim against the company should prevail.  Even if this legal argument works, it is way more difficult and cumbersome for workers and their attorneys.  Again, that is the whole point.  Companies want to make it as difficult as possible for workers to hold them accountable for wage theft—and SCOTUS has become complicit in this scheme.

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Earlier this month, the U.S. First Circuit Court of Appeals held that a trial court in Puerto Rico erred when it determined that a worker failed to present sufficient evidence to support her claims of ageist harassment and retaliation.  The trial court had thrown the worker’s case out because the trial judge did not think a jury could reasonably find that the company had violated the worker’s rights.  The First Circuit found that the trial court inappropriately prevented this case from going to trial.

The worker presented evidence to the trial court that her managers called her “vieja,” which means old in Spanish; “useless;” “worthless;” that she should apply for social security; and that she should quit because she was so old.  She told the trial court that this happened on a daily, or near daily, basis for over a year.  The trial court held that the worker failed to present specific enough information for a jury to find in her favor because she did not provide specific information about each instance during the period she was harassed, such as which person made comments on each particular date.  The First Circuit rejected the trial court’s reasoning, holding that it “would be unreasonable to expect the average worker in an allegedly perpetually abusive environment to keep track of her abuse to that degree of detail.”

The First Circuit also reversed the trial court’s decision to dismiss the worker’s claims of retaliation and “constructive discharge.”  After the worker complained to the U.S. Equal Employment Opportunity Commission (EEOC) and a similar agency in Puerto Rico about the harassment, one of the company’s owners began to threaten to fire her because she had filed her complaint.  The worker said that these threats occurred on almost a daily basis.  She wound up taking medical leave because of the depression and anxiety these threats caused.  When she returned, the threats continued until she eventually quit.

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This past week the U.S. Equal Employment Opportunity Commission (EEOC) announced the filing of seven lawsuits alleging unlawful harassment and also the settlement of a harassment case.  Two of the lawsuits that the EEOC filed and the one that it settled allege harassment against a class of employees.  In the case that settled, the EEOC secured $3.5 million for the victims and will require the employer to provide training to its employees, revamp its policies, and the EEOC will monitor the employer for a period of three years.

“Workplace harassment causes serious harm to women and men in all kinds of jobs across the country,” said EEOC Acting Chair Victoria A. Lipnic. “These lawsuits allege harassment based on race, national origin and sex and involve workers at country clubs and cleaners, sports bars and airlines, in health care and grocery stores. When employers fail to protect their employees from harassment, the EEOC may bring legal action to stop the harassment and prevent future harm.”

The seven lawsuits involve not only sexual harassment but also racial harassment, harassment based on national origin, and retaliatory harassment.  Retaliatory harassment is a common occurrence and is one major reason why harassment victims often choose not to complain about harassment.

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Two former Walmart employees in New York have filed a class action against the company under New York’s law that entitles pregnant employees to reasonable accommodations.  Under a New York law enacted in 2016, employers must provide pregnant employees with reasonable accommodations for pregnancy-related medical conditions, such as changes to their work schedules or leave from work.

According to the advocacy group representing the women who filed the lawsuit, New York is one of 23 states with a law that have enacted laws which specifically entitle pregnant employees to reasonable accommodations for pregnancy-related medical conditions.  Maine does not have such a law and, thus, it is more legally complicated in Maine to establish that a pregnant worker is entitled to a reasonable accommodation.

The class action, filed in New York state court, alleges that Walmart violated this New York state law because it assessed attendance points to the two women when they had to miss work due to pregnancy-related medical conditions.  According to the lawsuit, Walmart has an attendance policy, similar to many employers, where it assesses points to employees who have unscheduled absences and then disciplines them when they accumulate a certain number of points.  The two women who filed the lawsuit had to miss work in order to seek medical care related to their pregnancies and Walmart held that time missed against them.  According to the women, they asked if they could be excused from work for these medical reasons but Walmart managers refused and, so, the women had to choose between their jobs and their health.

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The Rhode Island ACLU has sued the Newport Grand Casino claiming that the casino paid their client, Paula Borrelli, less because of her gender.  Borrelli claims that she learned during a meeting in December 2016 that her male colleague received higher pay than her.  She says that she immediately asked for the same pay as this male colleague but the casino denied her request in May 2017 without any explanation.

“I just held myself together. I was falling apart inside because I was disgusted,” Borrelli said. “I was thinking they were building me up over these months thinking to myself that they’re working on it and this is it. And the answer was ‘we’re doing nothing.’”

“Ms. Borrelli’s case epitomizes both the deeply-ingrained problem of wage discrimination that too many women routinely face and the need for stronger, not weaker, protections in the law to address this discrimination,” said RI ACLU Executive Director Steven Brown in a statement. “That is why, although we rarely handle employment discrimination cases in the private sector, we felt it important to get involved in the case and help bring attention to this important issue.”

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medical-marijuana-300x300Last month the Maine Supreme Court struck a blow against medical marijuana users and the marijuana industry in Maine.  In the case, a worker who sustained a work-related injury received a prescription for marijuana to treat his pain.  Maine’s Workers Compensation Board ordered the employer to cover the cost of the marijuana but the Maine Supreme Court reversed that decision because, according to the Court, it conflicted with federal law.  Two Justices on the Court dissented from the decision.

The Court reasoned that if the employer was forced to pay for its employee’s medical marijuana, it would violate federal laws that still classify marijuana as a dangerous controlled substance.  Those laws prohibit anyone from “aiding and abetting” someone in possessing or selling marijuana.  The Court determined that if the employer paid for its employee’s marijuana, it would aid and abet the employee’s violation of federal law and, thus, violate the law itself.  In circumstances such as this, the Court held, federal law preempts state law and state law cannot be enforced against the employer.

The Court expressly stated that it was not deciding whether Maine’s marijuana law was entirely invalid.  The Court noted that courts in other states have held that state law protections for marijuana consumers who choose to buy marijuana are not preempted by federal law.  The Court, thus, left the issue of the validity of these consumer protections for another day.

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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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