• 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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Many studies have documented wage gaps between men and women as well as between white people and minorities. A new study shows a similar wage gap between bisexual and heterosexual workers. The study found that bisexual men earn 11% to 19% less than heterosexual men and bisexual women earn 7% to 28% less than heterosexual women.

Why does this wage gap exist? That is the key question. Studies have shown that gay men earn less than heterosexual men but lesbians earn more than heterosexual women. Part of the reason for these pay disparities for gay men and women is that gay men are more likely to work in occupations typically filled by women (which pay less) and lesbians are more likely to work in occupations typically filled by men (which pay more). Furthermore, gay men and lesbians are less likely than heterosexual men and women to have children. Due to unfair stereotypes, men are more likely to get a pay increase when they have children and women are more likely to get a pay decrease. These and other factors explain most of the wage gap for gay men and lesbians but they do not explain the wage gap for bisexual men and women.

So, researchers believe that discriminatory bias may be driving the bisexual wage gap more than the gay/lesbian wage gap. Some research shows that bisexuals are viewed as more immature and dishonest and less capable and competent than heterosexual or gay people.  These discriminatory stereotypes about bisexual people could be causing the pay gap.

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A new study from Bloomberg shows that workers filed more lawsuits under the Family and Medical Leave Act (FMLA) in 2015 than in previous years. At the same time, employers continue to try to detect “FMLA abuse,” which occurs when employees take FMLA leave they are not entitled to take. These two trends may not be unrelated.

When an employee uses FMLA leave, a business that has not properly planned for its employees to take FMLA leave can feel some strain. Good businesses should plan for employees to use FMLA leave because people inevitably get sick, get pregnant, and experience other life events that trigger the need for FMLA leave. If managers don’t have a plan for picking up the slack when employees take FMLA leave—rather than blame themselves for poor planning—they will sometimes try to find evidence that an employee actually didn’t need FMLA leave. They then can fire the employee for FMLA abuse. Overly zealous managers, who too quickly assume that employees have abused FMLA leave, can violate employees’ FMLA rights if they falsely conclude that employees have abused FMLA leave. Thus, ironically, it could be the overly zealous actions of employers trying to catch employees committing FMLA abuse that has led to a surge in FMLA lawsuits.

If your employer is accusing you of FMLA abuse, you should contact an experienced employment lawyer immediately. There are steps you should and should not take in order to protect your job and, if necessary, hold your employer accountable for violating your rights.

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We previously reported on the New York Department of Labor’s (NYDOL) delay in ruling on whether some former Uber drivers were eligible for unemployment benefits. To determine eligibility for unemployment benefits, NYDOL had to decide whether Uber drivers are employees or independent contractors. NYDOL finally reached a decision last week in favor of the Uber drivers.

Worker advocates in New York have taken this ruling from the NYDOL as a sign that they could be successful in arguing that Uber should treat its drivers in New York as employees. This would mean that they are entitled to a whole host of employment benefits such as workers compensation and overtime pay.

New York has now joined Oregon and California in determining that Uber drivers are employees for purposes of unemployment benefits determinations. Each state that makes a determination that Uber drivers are employees creates more precedent and more momentum for other states to do the same.

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Do you have a job where your work schedule unpredictably changes every week or every other week? If so, a new study shows that you’re more likely than someone with a more predictable work schedule to suffer adverse health effects. The researchers from the University of Pennsylvania and UC Berkeley who conducted the study found that workers with unpredictable schedules exhibit higher levels of stress, poorer health, and worse sleeping habits than workers with more predictable schedules.

Of course, this makes total sense. If you don’t know what your work schedule is going to be next week, you obviously experience a lot of stress in planning your life. You might have to make last minute childcare arrangements. You might have to put off doctor appointments because you don’t know if you’ll have to work at the time of your appointment. You also can’t get a second job because you don’t know if the schedules at the two jobs are going to conflict. All of these complications, and more, obviously cause a lot of stress.

Some states and cities have laws that require employers to give more notice when they change workers’ schedules. There was a bill in Maine last year that would have added more predictably to some workers’ schedules. However, that bill did not pass. Employers complained that a requirement to provide more notice on work schedules would be too burdensome; but the costs associated with that burden could be recouped if workers were healthier and more productive due to more predictable work schedules.

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Multiple studies have shown that homeless people face pervasive employment discrimination. In 2014, a survey of homeless people found that over 70% of them believed that businesses had discriminated against them based on their housing status. Homeless people face obstacles in getting employment because they are stereotyped as drug abusers and mentally disabled. (Of course, discrimination against the disabled is also illegal, but that is the subject for a different blog post.) Needless to say, this type of discrimination creates a vicious cycle of poverty for homeless people.

Maine does not have a law that prohibits employment discrimination against homeless people. Other New England states—Connecticut and Rhode Island—have passed laws, however, that prohibit employment discrimination against homeless people. Criminal statutes in Maine call for heightened punishment when a victim is targeted because s/he is homeless. A Maine law that prohibits employment discrimination against the homeless would go even further toward protecting one of the most, if not the most, vulnerable populations in our state.

Another option to help homeless people find employment is to enact laws that encourage employers to hire homeless people. Enhanced tax breaks for hiring the homeless or doing more to steer government contracts to employers that actively recruit homeless people for employment are two possibilities. There are already laws that provide these types of tax breaks to the poor but the tax breaks could be enhanced. All of these ideas merit consideration in Maine’s legislature and Congress.

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This week the U.S. Equal Employment Opportunity Commission (EEOC) convened a number of experts to discuss how employers have begun and will increasingly continue to use “Big Data” to make employment decisions. These uses of Big Data include using algorithms, “data scraping” of the internet, and other means to evaluate tens of thousands of data points. Employers use these techniques to determine who to hire, who to promote, how to determine whether an employee is performing well, and make other employment decisions.

“Big Data has the potential to drive innovations that reduce bias in employment decisions and help employers make better decisions in hiring, performance evaluations, and promotions,” said EEOC Chair Jenny R. Yang. “At the same time, it is critical that these tools are designed to promote fairness and opportunity, so that reliance on these expanding sources of data does not create new barriers to opportunity.”

The experts saw the potential for the use of Big Data to make fairer employment decisions, reduce the role of implicit bias, and promote equality. At the same time, if not used properly, the use of Big Data could continue, and possibly worsen, inequities in employment decisions. As one expert said, “algorithms may be trained to predict outcomes which are themselves the result of previous discrimination. The high-performing group may be non-diverse and hence the characteristics of that group may more reflect their demographics than the skills or abilities needed to perform the job. The algorithm is matching people characteristics, rather than job requirements.”

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A panel of reviewers representing a variety of stakeholders, including advocates of employers’ and workers’ interests, recently issued a report that debunks the myth that the Maine Human Rights Commission (MHRC) is biased against employers.  This panel conducted its review in accordance with Governor LePage’s executive order that a panel study, among other things, factors causing and/or contributing to perceptions that the MHRC is prejudiced against employers and biased in favor of workers.  In conducting its work, the panel noted that there are also people who believe that the MHRC is prejudiced against workers, not employers, but the panel unanimously found no evidence of prejudice against employers or workers.

“We think the report very clearly and unambiguously finds that we are factually not biased and don’t act in a way that is biased toward anyone in our process, nevermind labor,” said MHRC Executive Director Amy Sneirson. “We also think that anyone looking at our annual reports could have found the same thing a year ago without needing this review panel.”

The panel made various recommendations to improve the MHRC in ways that would, hopefully, reduce the perceptions of bias.  These recommendations included more funding and staff at the MHRC.

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This week, the Maine Employee Rights Group scored a victory for its client in a whistleblower case that we filed against Woodlands Senior Living of Brewer. The Penobscot County Superior Court held that a jury could reasonably find that Woodlands retaliated against our client, who worked for Woodlands as a Certified Residential Medication Aide, because she blew the whistle on conditions that were detrimental to the health and safety of residents.

Our client began working at Woodlands in November 2012. She received regular pay raises during her time at Woodlands. In January 2014, she received a positive performance evaluation. After that, she raised concerns about resident care. For instance, she reported finding a resident covered in urine and feces and also residents not being fed. On May 4, 2014, our client told Woodlands management that she intended to file a complaint with the Department of Health and Human Services. The next day, Woodlands fired her.

Woodlands moved for summary judgment in this case arguing, among other things, that it was legally permitted to retaliate against our client for her reports of problems with resident care because her job duties required her to report her concerns. The court rejected Woodlands’ argument. The court held that a jury could reasonably determine that our client reported the problems with resident care out of a concern for the health and safety of the residents. And the jury, thus, could reasonably find that firing our client for her reports about resident care issues violated Maine’s Whistleblower Protection Act.

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Earlier this month, a federal court in Connecticut held that a jury could reasonably find that Lawrence & Memorial Hospital violated the rights of a lab tech when it failed to provide reasonable accommodations for her disability in retaliation for her filing a complaint of sexual harassment. The facts of this case, unfortunately, will sound familiar to many workers who have been similarly traumatic events.

The lab tech plaintiff who filed the lawsuit against Lawrence & Memorial Hospital, worked in a lab with a man who, she says, subjected her to some pretty significant harassment. The male co-worker allegedly acted in an abusive manner to many people in the lab. In one incident, he shoved a co-worker into the plaintiff. In another incident, he put his hand up to her face as though he was going to slap her. And in another incident, he elbowed her. Some of the harassment was also sexual, such as “blonde” jokes and nicknaming the plaintiff “bimbo.”

The plaintiff had hypertension which her doctors say was worsened because of the hostile environment she experienced at work. Her doctors believed it would be dangerous for plaintiff to continue to work in this hostile environment because her hypertension was so bad. The plaintiff complained about the harassment she experienced and also asked for changes to her working conditions to accommodate her hypertension.

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Yesterday, a federal court in Massachusetts held that a jury could reasonably find that the Framingham School Committee retaliated against a social worker because that social worker spoke out about sexual assaults that occurred at Framingham High School (“FHS”).

According to the court, a jury could reasonably determine that the social worker heard from two female students that the same male student had sexually assaulted them. The social worker had a meeting with the FHS principal and vice principal to discuss what FHS should do about the male student who allegedly sexually assaulted the two female students who had complained to the social worker. The social worker told the principal and vice-principal that he thought they should notify the district attorney about the allegations. The social worker claims that the principal resisted this idea because he did not want the allegations to become public. When the social worker pushed back, the principal told him that if he did not like the principal’s “leadership style,” he did not have to work there.

Later in the semester, the social worker emailed the principal again expressing his dissatisfaction with how FHS had handled the sexual assault allegations and also expressed his views, in general, on the issue of sexual assault. Soon after this email, the social worker claims that the principal began to look for reasons to discipline him. Three days after the social worker sent the email, the principal disciplined the social worker for not counseling a student. The social worker claims that he was never advised of that student’s counseling needs. The social worker grieved the discipline and won his grievance.

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