• 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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Last week, the U.S. Equal Employment Opportunity Commission (EEOC) issued new updated guidance on laws that prohibit retaliation against workers who engage in protected activities such as opposing unlawful discrimination or participating in a discrimination investigation.  The EEOC issued its previous guidance in 1998 and since that time the U.S. Supreme Court has decided seven cases in which the court addressed the anti-retaliation laws that the EEOC enforces.  So, an update of the guidance was certainly warranted.

“Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination,” said EEOC Chair Jenny R. Yang. “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.  The public input provided during the development of this guidance was valuable to the Commission in producing a document to help employers prevent retaliation and to help employees understand their rights.”

The new guidance contains many helpful illustrative examples of protected activities.  Of course, there are many types of protected activities not illustrated but the EEOC’s guidance cover some common types.  Some examples of protected activity covered in the guidance include:  telling your employer that you witnessed acts of sexual harassment that a co-worker complained about; resisting sexual advances; refusing to comply with your employer’s instruction to engage in unlawful discrimination; and raising questions about potential pay discrimination.  Because these activities are protected, an employer may not retaliate against you for doing them.

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Thousands of current and former employees of the restaurant chain Chipotle have reportedly returned paperwork indicating their intent to join a lawsuit against Chipotle for wage theft.  The paperwork went out to current and former Chipotle employees in April and indicated that employees who worked “off the clock” for Chipotle could join the lawsuit.  Since then, nearly 10,000 current and former employees have joined the lawsuit.

The lawsuit alleges that Chipotle employees who worked the closing shift were automatically and routinely clocked out before they finished working.  Some managers even allegedly asked Chipotle employees to work after they were clocked out.  This is a classic form of wage theft and, given the number of workers who have opted-in to the lawsuit so far, it may have been a pervasive practice at Chipotle.

Unfortunately, many employers engage in wage theft in order to keep labor costs low.  Wage theft can take many forms such as requiring employees to work off the clock, refusing to pay time-and-a-half for all overtime worked, and improperly paying the same weekly salary to non-exempt employees even when they work overtime.  These practices are called wage theft because they involve the employers keeping wages that employees earned and are legally entitled to receive.

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Newsweek recently ran a story about a survey it conducted about sexual harassment in the news business.  The Newsweek reporters heard from numerous women about experiences they had with sexual harassment.  The trends were disturbing.  Many of the women who responded to the survey said that they were forced to endure sexual advances and sometimes assaults when they were young journalists first starting out in the in the business.

In 2013, the International Women’s Media Foundation issued a study which found that two-thirds of women in journalism have experienced threats, intimidation, and abuse—a majority of which occurred at the hands of male bosses, supervisors, and co-workers.

The trend of male supervisors and senior colleagues sexually harassing women who are just starting out in the journalism industry illustrates the mentality of many sexual harassers.  Men who sexually harass women often choose women with less power than them so that the women will be less likely to complain.  Furthermore, sexual harassment is often motivated just as much by a desire to exert power over these less powerful women as it is by sexual desire.

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Former Fox News journalist Gretchen Carlson recently filed a sexual harassment lawsuit against Fox News news chief Roger Ailes that has received a lot of media attention.  One aspect of the case that has received attention is Ailes’ efforts to force the lawsuit out of the public eye and into secretive arbitration proceedings.  Ailes’ attorneys have griped about trying his case in the press even though Ailes has aired allegations against countless other people in the press over the years.

Carlson filed her lawsuit in court, instead of arbitration, because her lawyers have argued that she agreed to pursue claims against Fox News in arbitration but not against Ailes himself.  And her lawsuit is against Ailes, not Fox News.  But that has not stopped Ailes’ attorneys from aggressively trying to push the case out of the public eye and into arbitration.

The arbitration agreement that Carlson signed is remarkable because of the scope of confidentiality it requires.  Normally, arbitration agreements keep cases out of the public eye because they require workers to bring their claims before a private arbitrator, instead of the public court system.  However, the arbitration agreement that Carlson signed forbids her from disclosing what happened to her to anyone outside of the arbitration proceedings.  Cliff Palefsky, a lawyer who heads the National Employment Lawyers Association’s task force on mandatory arbitration, calls this level of confidentiality a “gag order” and argues that it should be unenforceable because it goes against public policy.

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Last week, the U.S. Eighth Circuit Court of Appeals issued an opinion in a Family Medical Leave Act (FMLA) case which involved claims against Bridgestone Americas Tire Operations.  The court held that Bridgestone unlawfully interfered with the FMLA rights of Lucas Hernandez, a tire builder Bridgestone fired because of attendance.

While Hernandez worked for Bridgestone his son had asthma and he needed to intermittently take time off from work to care for his son.  The FMLA requires employers to permit FMLA-eligible employees to take intermittent leave for qualifying reasons, such as to care for a son or daughter with a serious health condition.  Bridgestone permitted Hernandez to take this intermittent FMLA leave but, according to the court, it did not provide him with all of the leave he was entitled to take.

Like many manufacturers, Bridgestone ran its tire building operations continuously.  This continuous operation required many employees to routinely work overtime shifts.  At the plant where Hernandez worked, Bridgestone put out overtime sign-up sheets where workers could express interest in overtime work.  Bridgestone then took the information from the sign-up sheets and posted another sheet indicating who was selected for overtime and when they had to work.  The court found that once Bridgestone selected an employee for overtime and put their name on the sheet, that overtime shift was mandatory.  Characterizing the overtime shift as mandatory had implications for calculating Hernandez’s FMLA leave entitlement.

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The Washington Post Magazine recently ran an interesting story about the prevalence of ageism in the workplace.  As the baby boomer generation ages, the problem of age discrimination is going to be more and more common.  Unfortunately, age discrimination remains one of the more socially acceptable forms of discrimination in our society.  Todd Nelson, a psychology professor quoted in the article, pointed to greeting cards as indicative of this social acceptability of ageism.  If you shop for birthday cards, you’ll see many that talk about how getting older is something to be ashamed of or that people would want to hide.  You don’t see such attitudes publicly expressed about race, sex, or religion.  A card that said “’ha ha, too bad you’re Jewish’ …wouldn’t go over so well,” Nelson noted.

Older workers face deeply ingrained pernicious stereotypes about their ability as workers.  Many employers hold stereotypical views that older workers are unable to learn new technologies (“you can’t teach an old dog new tricks”), unable to take direction from younger supervisors, and can’t get invested in the job because they are just thinking about retirement.  Many employers also assume that older workers will be prone to filing workers compensation claims due to on-the-job injuries.

If you are an older worker, you probably already know that you need to guard against ageism.  And if you don’t know that you need to do that, consider yourself warned.  There are laws against age discrimination but you need to stay alert to the signs of discrimination in order to detect it.  For example, if your employer is laying you off, try to find out the ages of the other people being laid off to see if, perhaps not so coincidentally, the younger workers are being spared the axe.  In some instances where employers offer you a severance package, the Older Workers Benefits Protection Act requires the employer to tell you the ages of the people who were laid off and not laid off so that you can see whether the employer targeted older workers.

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The U.S. Fifth Circuit Court of Appeals in Louisiana recently reversed a trial court’s decision to dismiss a pregnancy discrimination case before trial.  The case involved the law firm Carabin & Shaw’s decision to terminate an employee named Cynthia Heinsohn days after she went out on maternity leave.  The trial court thought no reasonable jury could find that Carabin & Shaw had terminated Heinsohn because of her pregnancy.  The Fifth Circuit found that the trial court had improperly denied Heinsohn her right to a trial.

The trial court, according to the Fifth Circuit, improperly threw out Heinsohn’s case before trial based on an assessment of witness credibility.  The primary purpose of trials is to assess witness credibility.  A judge cannot deny a worker her day in court just because he believes, based on the written record, that the employer’s supposed reason for terminating the worker was non-discriminatory.  When a case comes down to witness credibility, particularly in a case where a jury trial is available, the winner should be decided based on a full assessment of each witness’ credibility by observing him or her testify.

The facts of Ms. Heinsohn’s case are, unfortunately, all too familiar.  Ms. Heinsohn went out on maternity leave and Carabin & Shaw found that some deadlines had been missed which it blamed on Ms. Heinsohn.  Without even asking Ms. Heinsohn about the missed deadlines, it fired her while she was on maternity leave.  According to the Fifth Circuit, there was evidence that Ms. Heinsohn was not responsible for the missed deadlines and a jury could infer that Carabin & Shaw actually terminated her because of her pregnancy.  This type of situation—where an employer fires an employee while she is out on leave—is all too familiar.  When employees go on leave, they often draw the ire of their employers who have to take steps to get the employees’ work done while they are out.

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Election day is quickly approaching and there are already some very contentious political campaigns going on right now.  Many people, including co-workers, share a deep interest in the positions and policies of various political candidates.  Workers should be careful, however, about what they discuss at work.

Many people mistakenly think that their employer cannot do anything to them for talking about politics because they have a First Amendment right to express their opinions.  While it is true that everyone has a First Amendment right to talk politics, the First Amendment only prevents the government from punishing you for talking politics.  So, if you work for a private employer, instead of a government, your employer can punish you for speaking your mind about, for example, why people should vote for a certain candidate.  Even employees who work for a government should be cautious about what they discuss at work because, even though the First Amendment provides some protections to those employees, those First Amendment protections are not unlimited.  There are also some laws, such as the federal Hatch Act, that prohibits political activity at work.

As with most legal rules, however, there is no bright line rule on what types of political speech an employer may punish you for saying.  For example, the National Labor Relations Act (NLRA) entitles non-supervisory employees to discuss issues such as their pay.  Thus, if you speak to your co-workers about how you like the policy proposal of raising the minimum wage because you think you and your co-workers deserve a pay raise, your employer may not be able to legally punish you for such conversations.

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A new poll conducted by National Public Radio, the Robert Wood Johnson Foundation, and Harvard’s T.H. Chan School of Public Health shows that many people believe that work is bad for their health.  Here are some of the key findings about working adults in the U.S.:

  • 43% say that their work negatively affects their stress levels;
  • 28% say that their work has a bad effect on their eating habits;
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Maggie Hasan, the Governor of New Hampshire, recently issued an executive order that prohibits employment discrimination against transgender people based on their gender identity or gender expression.  The New Hampshire Law Against Discrimination already prohibited discrimination based on sexual orientation but not gender identity or expression.  Governor Hasan’s executive order will protect employees that work for New Hampshire State government as well as employees who work for contractors that do business with the State of New Hampshire.
“Throughout our history, it has been clear time and again that we always grow stronger when we work to ensure the full inclusion of all citizens in our democracy, our economy and our communities,” Governor Hassan said. “By making clear that gender identity and gender expression are protected in the State’s anti-discrimination policies, this Executive Order helps ensure that New Hampshire state government welcomes and incorporates the talents and contributions of all of our citizens. As we celebrate Pride Month, this Executive Order reinforces that New Hampshire is a welcoming state where everyone has the opportunity to share in our high quality of life and economic success.”
 
Maine has prohibited discrimination against transgender people for years.  The Maine Human Rights Commission has interpreted the prohibition against sexual orientation discrimination in the Maine Human Rights Act as including a prohibition against discrimination based on gender identity.  While Governor Hasan’s executive order moves New Hampshire closer to Maine and other New England states that prohibit gender identity discrimination, the executive order does not protect many employees in New Hampshire.  For those transgender employees not covered by the executive order, they may rely on federal law.  The U.S. Equal Employment Opportunity Commission has interpreted the Civil Rights Act’s prohibition on sex discrimination to include a prohibition on gender identity discrimination. 
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