• 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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On April 4, 2010, Maine United States District Court Judge John A. Woodcock, Jr. concluded that claims of age discrimination in hiring brought by plaintiff Glenn Duckworth in connection with the failure of Mid State Machine to hire Duckworth in 2005 for an open position were timely even though the Plaintiff did not file a Charge with the Maine Human Rights Commission and Equal Employment Opportunity Commission until over three years after the alleged discrimination and did not file his claim in court until almost four years after the alleged discrimination. The case is reported as Duckworth v. Mid-State Machine Products, — F.Supp.2d —-, 2010 WL 1348245 (D.Me. 2010)

In this case, Mr. Duckworth had worked for Mid State Machine (“MSM”) for over six years from 1995 to 2002. For most of this time, Mr. Duckworth worked as the facilities’ gage control technician. In 2002, Duckworth was laid off in a company wide reduction in force. The layoff had nothing to do with Duckworth’s performance and performance evaluations documenting Duckworth’s performance during his employment with MSM indicated that he had performed the duties of his job well. In 2005, Duckworth was seeking work and so called MSM to see if they were hiring. Duckworth spoke with four different managers at MSM on five occasions and during these conversations indicated that he was interested in returning to work for MSM if they were hiring. Duckworth also provided MSM with a copy of his resume.

In fact, during this time in 2005, MSM was seeking to fill Duckworth’s old gage control technician position. MSM’s managers did not mention to Duckworth that the gage control technician position was open. MSM’s hiring manager was made aware of Duckworth’s interest in returning to work for MSM and claims that he initially considered Duckworth for the position but subsequently decided to hire a much younger and less experienced candidate instead of Duckworth. The reasons giving by MSM’s manager for hiring the much younger and inexperienced candidate over Duckworth are in dispute and Duckworth alleges that the reasons given by MSM for their failure to hire him are untrue and pretexts.

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The Maine legislature recently failed to pass legislation that would have protected Maine workers who could not come to work because they were sick. Initially, the proponents of the legislation wanted to pass a law that would require employers to provide paid sick leave. When they could not garner enough support for that bill, they narrowed the legislation to only prohibit employers from terminating employees who cannot work because they or a family member are sick. Even that scaled back bill failed. As a result, many workers with contagious diseases, like swine flu, will be forced to come to work sick or lose their jobs.

You should know that an employer can terminate you for missing work because you are sick unless you fall under protections for employees with disabilities, workplace injuries, or serious health conditions. If you believe your employer has terminated you unfairly because you missed work due to your own health problems, or the health problems of a family member, you should contact an experienced employment lawyer.

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The Obama administration is considering a policy called the “High Road Contracting Policy.” This policy would give employers that treat their employees better than the law requires an advantage when they compete for federal contracts. It is reported that this policy would advantage contractors that provide hourly workers with a “living wage,” health insurance, an employer-funded retirement plan and paid sick days.

Senators Collins and Snowe have signed a letter to the Director of the Office of Management and Budget, Peter Orszag, expressing concerns that they have with this “High Road” policy. Among other things, they are concerned that the policy would adversely affect small businesses.

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There are federal and state laws that protect truck drivers in Maine who refuse to operate illegally. For instance, if you have refused to drive longer than the DOT allows, refused to doctor your logbook, refused to drive an unsafe truck, or complained about violations of DOT regulations, the law prohibits your employer from retaliating against you. (Incidentally, that was not an exhaustive list of illegal reasons for an employer to retaliate against you, just some examples.) The federal law that protects you is the Surface Transportation Assistance Act (STAA). In Maine, the Whistleblower Protection Act (WPA) also protects you.

While it is illegal for employers to retaliate against truck drivers who refuse to violate the law, or complain about violations of the law, it is sometimes hard to prove such retaliation took place. It is even harder to prove retaliation took place if you do not have a good lawyer on your side. So, if you believe that your employer is going to retaliate against you, or has already retaliated against you, you should contact an experienced employment lawyer who is knowledgeable about the STAA and Maine’s WPA.

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On December 19, 2009, President Obama signed the Defense Appropriations bill into law. The bill included an amendment added by Minnesota Senator Al Franken and referred to as the “Franken Amendment” that precludes employers who enter into contracts with the Department of Defense from entering into pre-dispute “agreements” with their employees that require the employee to give up their right to pursue harassment and discrimination claims under Title VII in court in favor of private binding arbitration. The new law also prevents defense contractors from enforcing already existing pre-dispute arbitration agreements.

The amendment was prompted by the gang rape of a KBR/Halliburton employee in Iraq by her coworkers. When the employee attempted to pursue a claim against her employer in court the employer, KBR, kept her claim out of court by using a fine print agreement that it had required her to sign when she started work with KBR waiving her right to a jury trial and instead agreeing to submit all claims against KBR to a private and confidential arbitration run by KBR.

The KBR case reflects a growing trend as more and more employers have come to require their employees to sign away their right to pursue civil rights claims in court as a condition of their employment.

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When an employer involuntarily terminates an employee, the employee is eligible for COBRA benefits. Under COBRA, a federal law, an employee who faces involuntary termination can pay out of his own pocket to continue his or her health insurance. This is usually too expensive for employees who just lost a job. That is why, in response to the recession, Congress previously enacted legislation that provided subsidies to people eligible for COBRA benefits so that they could buy COBRA coverage. Those subsidies were set to expire on December 31, 2009. However, on December 21, 2009, the President signed legislation that extended the eligibility for the subsidy to those individuals who are involuntarily terminated and become eligible for COBRA coverage before February 28, 2010.

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According to various news sources, the Morning Sentinel, a newspaper in Waterville, Maine, fired reporter Larry Grard on November 10, 2009. Mr. Grard claims that the Morning Sentinel fired him because he sent an email to the Human Rights Campaign. He sent the email just after Maine voters repealed Maine’s same sex marriage law. In his email, he accused the Human Rights Campaign of being “hateful” and “venom-spewing.” Mr. Grard believes that the Morning Sentinel discriminated against him because of his conservative political beliefs. Mr. Grard’s union has filed a grievance challenging his termination.

Mainers should know that, if Mr. Grard was not in a union, he would have no claim for wrongful termination. In Maine, it is not illegal for a private employer to discriminate against someone because of their political beliefs. If you think that is wrong, you should contact your representatives in the Maine legislature.

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On November 21, 2009 the federal Genetic Information Non-Discrimination Act (GINA) became effective. Under this new law, subject to a handful of exceptions, employers may not gather genetic information about their employees. Genetic information includes an employee’s family medical history. The law also forbids employers from discriminating against employees on the basis of their genetic information. For instance, under GINA, an employer could not fire someone because he has a family history of mental illness.

The Equal Employment Opportunity Commission (EEOC) is the federal agency that will enforce GINA. However, before contacting the EEOC with a complaint about a violation of GINA, you should consult with an attorney experienced in representing employees.

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In late October, President Obama signed into law new protections for families of military personnel who need to take leave from work under the Family and Medical Leave Act of 1993 (“FMLA”). The new protections expand on changes implemented less than a year ago which required certain employers to provide unpaid leave for qualifying family members of military personnel.

Under the FMLA, an employee may take leave because of a qualifying exigency that is a consequence of his spouse, son, daughter, or parent being called to active military duty. Such exigencies include the need to arrange for alternative childcare, to attend official military ceremonies, to make legal and financial arrangements, and to attend counseling. Prior to the new amendments, only employees whose family members were in the Reserves or the National Guard could qualify for this leave. Under the new FMLA amendments, employees whose family members are in the regular Armed Forces may take leave for these exigencies when the family member is deployed to a foreign country.

An employee may take leave to care for a servicemember with a serious injury or illness that he incurred while on active duty. Before the recent amendments to the FMLA, only family members of current members of the Armed Forces (including the National Guard and Reserves) could take this leave. The amendments have now expanded the FMLA to cover the family of veterans, so long as the veteran was a member of the Armed Forces at some point during the five year period before he began seeking treatment for his serious injury or illness. The amendments also expanded the definition of serious injury or illness to include conditions that predate a servicemember’s active duty if active duty aggravated the condition.

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On October 1, 2009 the Maine Human Rights Commission concluded an investigation which found that there were reasonable grounds to believe that an employee, April Vannah, was terminated from her job because of her disability by her employers New England Vending, Inc., World Wide Personnel Services, of Maine, Inc. and TRSG, Inc.

The Investigator’s Report indicates that Ms. Vannah had worked for these employers since 2005 as a cook and then manager at a cafeteria operated in a Lewiston Wal-Mart distribution center. In March 2007, Ms. Vannah suffered a severe stroke which adversely affected her speech and ability to use her arm. Ms. Vannah began a long rehabilitation that has assisted her to regain her ability to speak and use her arm. After some rehabilitation, Ms. Vannah returned to work. She was given fewer hours than she had worked before and was not allowed to be a manager. On February 19, 2008, an accident occurred that resulted in cooking oil being spilled on the floor of the kitchen. Ms. Vannah denied being involved in the accident. Nonetheless, her employer told Ms. Vannah that the accident was her fault and told her that she was terminated and could only return when she was 100%. A supervisor then completed a termination form which indicated that the reason for Ms. Vannah’s separation was “medical” reasons. Ms. Vannah argued and the Maine Human Rights Commission agreed that the statement by the supervisor made it clear that they were holding Ms. Vannah’s disability against her and that the employers’ actions amounted to a termination because of her disability.

The employers later denied that Ms. Vannah’s brain injury had anything to do with her separation and instead claimed that Ms. Vannah was a bad employee who misbehaved and had engaged in unsafe behavior and that these were the reasons for her separation. The employers also argued that Ms. Vannah had left voluntarily. The investigator’s report points out that the employers had failed to provide any documentation, specific information, or other evidence to show that Ms. Vannah had misbehaved or engaged in “unsafe behavior”. The investigator also pointed to the fact that at the time of the oil spill that employers’ supervisor had told Ms. Vannah that she was done working until she was “100%”.

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