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Agreeing to “terms and conditions” of participation has become a near-daily occurrence in the modern world. We communicate assent to terms and conditions when we sign the lease for a new apartment, order food from a delivery site, and click a box stating “I agree to the terms and conditions” when visiting many websites. The list goes on. One place where terms and conditions are especially prevalent is when people start new jobs. Often, mandatory arbitration clauses are hidden in the stack of paper that employees are required to sign at the outset of employment.  Employees are rarely provided with any notice or explanation regarding the significance of agreeing to mandatory arbitration. In this context, millions of Americans have given up their right to a day in court and to have their claims of discrimination and retaliation heard and addressed by a jury of their peers. The U.S. Supreme Court recently gave a small victory to these employees.

This victory came in the case of Morgan v. Sundance Inc. In this case, Morgan sued her employer, a Taco Bell franchise owner, for improperly compensating her for overtime worked. Morgan filed suit in court and Sundance answered her complaint and engaged in litigation with Morgan. Eight months into litigation, Sundance tried to stop the litigation and dismiss the case from court and instead start the process over in a private arbitration pursuant to an arbitration agreement signed by Morgan.

In this case, Sundance argued that arbitration agreements are special and are not subject to the normal rules governing contracts between parties. The Supreme Court disagreed and held that arbitration agreements do not receive special treatment and that if Sundance waived its right to litigate the case in arbitration under the contract by delaying in asserting this right under standard contract law then it was too late to force arbitration. In other words, arbitration agreements are not special in some sense that renders them exempt from standard contract law principles.  Prior to this case, the Supreme Court had consistently found in favor of employers seeking to use arbitration agreements to bar employees from bringing their claims in court.  In this context, this small victory is particularly meaningful.

On March 30, 2020 the  National Labor Relations Board (“NLRB”) affirmed the conclusion of a NLRB Administrative Law Judge that Maine Coast Memorial Hospital (“MCMH”) discriminated against Karen Jo Young in violation of the National Labor Relations Act (“NLRA”) when it terminated her for writing a letter to the editor of the Ellsworth American “discussing staffing shortages at the hospital and the impact on her and her coworkers’ working conditions, and expressing support for the Ellsworth nurses’ union’s efforts to improve staffing levels.”  The NLRB’s three member board found, unanimously, that MCMH and Eastern Maine Health Systems (“EMHS”) which is now named Northern Light, had maintained an unlawful media policy at MCMH and other EMHS facilities including Acadia Hospital, Blue Hill Memorial Hospital, CA Dean Memorial Hospital, Eastern Medical Center, Inland Hospital, Lakewood Continuing Care Center, the Aroostook Medical Center, and VNA Home Health & Hospice, which precluded employees from communicating with the news media on topics relating to MCMH/EMHS.  The unlawful policy stated:

No EMHS employee may contact or release to news media information about EMHS, its member organizations or their subsidiaries without the direct involvement of the EMHS Community Relations Department or of the chief operating officer responsible for that organization. Any employee receiving an inquiry from the media will direct that inquiry to the EMHS Community Relations Department, or Community Relations staff at that organization for appropriate handling.

According to the NLRB decision, this media policy was used as the basis to terminate Ms. Young for her letter to the editor.  According to the NLRB, the termination discriminated against Ms. Young for engaging in concerted, protected activity and for engaging in union activity.  According to the portion of the ALJ’s Decision affirmed by the NLRB, Ms. Young was not in a union at the time that she wrote the article but was nonetheless protected by the NLRA because she was speaking out regarding concerns about staffing levels that she believed were having an impact on patient care and also adversely impacting the working conditions of employees including Ms. Young.  The NLRB has ordered MCMH to reinstate Ms. Young to her position, pay her back pay with interest, cease and desist from using a Media Policy like the one that was in place when Ms. Young was terminated, and notify employees of the NLRB decision. The NLRB also mandates that MCMH and Northern Light post a notice at MCMH, Acadia Hospital, Blue Hill Memorial Hospital, CA Dean Memorial Hospital, Eastern Medical Center, Inland Hospital, Lakewood Continuing Care Center, the Aroostook Medical Center, and VNA Home Health & Hospice which contains, among other things, assurances that MCMH and Northern Light will not retaliate against employees in the future for exercising rights protected by the NLRA.

The effects of an arrest for a nonviolent crime can be a far reaching and lead to an ongoing stain on a person’s record. A Google search will often reveal past arrests for a nonviolent crime and this information to anyone for years following the arrest. The resulting discrimination can be a devastating blow to the best job search efforts.

Last Friday, the president signed The First Step Act, which enacts long needed reform to our criminal justice system by moderating overly harsh sentencing. Now, Congress must look more critically at the problems faced by inmates upon release in order to address not only recidivism, but our nation’s far reaching labor shortage.

Studies show that individuals who can’t find meaningful employment upon release are more likely to engage in illegal activity and return to prison. Currently, for every 100-people released from prison, 66 will end up back in prison. Not surprisingly however, that rate is far lower for those who get jobs soon after release. In fact, California has shown that recidivism may be as low as 3% for those who gain meaningful employment shortly following release.

Today, the U.S. Department of Justice (DOJ) announced the first lawsuit filed by the Trump administration under Title VII of the Civil Rights Act.  Title VII prohibits employment discrimination based on race, color, sex, national origin, and religion.  DOJ enforces Title VII against state and local government employers.

The lawsuit alleges that the Houston Fire Department violated Title VII of the Civil Rights Act when it subjected two female firefighters to sexual harassment.  The news of the lawsuit coincided with the announcement of a new DOJ initiative to combat sexual harassment in the workplace—the Sexual Harassment in the Workplace Initiative (SHWI).

This lawsuit against the City of Houston follows criticism from civil rights advocates over the fact that the current administration had not filed any Title VII lawsuits.  Now that the first one has been filed, it will be interesting to see whether DOJ will begin to file Title VII lawsuits at an increased frequency.

The Maine Employee Rights Group (MERG) is pleased to announce that award-winning attorney Allan Townsend has joined the firm.  Allan comes to MERG from the U.S. Department of Justice, Civil Rights Division, Employment Litigation Section, where he worked for the past seven years protecting the rights of employees of state and local governments as well as military service members.

DOJ entrusted Allan to represent the United States in some of its most high profile cases including a large class action challenging the New York City Fire Department’s (FDNY) pattern of discrimination against Black and Hispanic applicants—which settled for about $100 million—and the first-ever employment discrimination lawsuit that DOJ filed to protect the rights of a transgender individual.

“Allan began his career in Maine and we are thrilled that he has returned from Washington, DC.  He is an extraordinary attorney and a dogged advocate for his clients.  Allan has spent his entire career fighting for working people and all Maine workers should be thankful that he has returned,” said MERG principal Peter Thompson.

The federal Age Discrimination in Employment Act (ADEA) turned 50 years old this month.  Congress enacted the ADEA, 50 years ago, to address the following stated problems:

(1) in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs;

(2) the setting of arbitrary age limits regardless of potential for job performance has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons;

In almost every workplace, information is communicated and stored electronically. Email, scanned documents, spreadsheets, databases, memos, letters, and more are all stored electronically. These troves of electronic information often contain the evidence that lawyers need to prove illegal activity. Even when a wrongdoer tries to cover their tracks, electronic storage of information can make it difficult to completely cover their tracks. One example of this occurred in a case in San Francisco that recently resulted in a judgment of over $10 million dollars for a whistleblower.

In that San Francisco case, the company claimed that it fired the whistleblower because of erratic work and loud outbursts. The whistleblower—who argued that the company fired him because he blew the whistle on illegal activity—said that his work was not erratic, he did not make loud outbursts, and the company never provided him with any documentation to support these claims. The company presented a performance review, dated a couple months before the whistleblower’s termination, which appeared to corroborate the company’s claim of erratic work and loud outbursts. But because the performance review was created electronically, “metadata” showed that the performance review was a fake.

Metadata is information about an electronic record such as who created it and when it was created. The whistleblower’s lawyer obtained the metadata associated with the performance review that supported the company’s claim of erratic work and loud outbursts. The metadata showed that the performance review was actually created after the whistleblower’s termination. This showed that the company did not take that performance review into account when it fired the whistleblower and that it may have created the performance review after the termination as a way to cover up its unlawful retaliatory motive for firing the whistleblower.

After a three day jury trial, a Bangor jury found that Woodlands Senior Living of Brewer (“Woodlands”) violated the Americans with Disabilities Act, the Rehabilitation Act, the Family Medical Leave Act, and the Maine Family Medical Leave Requirements and awarded the plaintiff, Christy Dorr, of Milford, $15,000 for her lost wages. 

Ms. Dorr was employed by Woodlands Senior Living of Brewer for three years.  On June 26, 2014 she needed to leave a shift for reasons relating to her pregnancy and medical conditions.  The next day Woodlands terminated her employment.  The jury concluded that Woodlands terminated Ms. Dorr because of her protected medical conditions and that Woodlands had failed to provide her with protected leave under the Family Medical Leave Act. Ms. Dorr filed suit in the U.S. District Court for the District of Maine on March 10, 2015 and the case went through protracted litigation prior to the trial.

The Court will consider additional issues including an award of liquidated damages, changes to Woodlands’ policies and procedures, corrections of Ms. Dorr’s personnel file and an award of attorney’s fees and costs. Ms. Dorr is represented by Chad Hansen, a member of the Maine Employee Rights Group.