• 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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The New York Department of Labor (NYDOL) is reportedly taking an unusually long amount of time to determine whether Uber drivers who lose their ability to drive for Uber may collect unemployment insurance benefits.  This issue relates to the class action lawsuit against Uber which we have previously written about.  The issue that NYDOL is grappling with is the same as the issue in that lawsuit:  are Uber drivers employees or independent contractors?

Employees may be eligible for unemployment insurance benefits when they lose their jobs but independent contractors typically are not eligible.  Uber maintains that its drivers are independent contractors and, so, it does not pay unemployment insurance taxes.  If the NYDOL determines that ex-Uber drivers should be eligible for unemployment insurance benefits, Uber may face more litigation over whether it has to pay unemployment insurance taxes in New York.

NYDOL has been telling Ex-Uber drivers who apply for unemployment insurance benefits the following: “The information we are being given is these claims (not just yours) are under executive review, which means the Dept of Labor is not making the decision whether or not this employment is covered. Your claim will remain pending until such time as a determination has been made.”

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The New Jersey Supreme Court recently held that an employer may not require an employee to agree to shorten the amount of time he has to bring a claim against the employer for violations of New Jersey’s Law Against Discrimination (LAD).  In the case, the employer had included language in its job application form which said, in essence, that if it hired the applicant and then violated his rights, he had to bring any claim against the employer within six months even though the LAD gives workers two years to file their claims.

New Jersey’s LAD has a two-tiered enforcement system with both an administrative agency that accepts complaints and a right for workers to bring claims in court.  If workers in New Jersey want to file a claim with the administrative agency that enforces the LAD, which is called the Division on Civil Rights, they must do so within six months.  The Division on Civil Rights investigates complaints of discrimination, enforces the LAD, and attempts to resolve complaints through conciliation.  However, if the Division on Civil Rights does not act as quickly as the worker would like, he has the option of withdrawing his complaint and proceeding to court.

The New Jersey Supreme Court held that it was particularly important to the LAD that workers have the option to file with the Division on Civil Rights and then, subsequently, withdraw that complaint and file in court.  In this case, the employer’s application language would essentially force workers to choose between filing in court or proceeding before the Division on Civil Rights, instead of having both options.  The court believed this would significantly undermine the purpose of the LAD, which is to eradicate discrimination not only because discrimination hurts individual workers but also because it “menaces the institutions and foundation of a free democratic state.”

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In recent years, lawmakers have debated whether to prohibit employers from asking about criminal history on job applications.  Those who want to prohibit questions about criminal history in job applications have used the slogan “Ban the Box” because they want employers to remove “yes” or “no” checkbox questions about criminal history from their applications.  Supporters of Ban the Box laws believe that the laws will help black workers who are statistically more likely to have criminal histories than white workers.  They believe that black applicants will have a better chance of getting called for an interview if they do not have to reveal a criminal history on a job application.

Some states and cities around the country have enacted Ban the Box laws.  Researchers recently looked at the effects these laws had on black workers as compared to white workers in New York City and New Jersey.  Surprisingly, these researchers found that Ban the Box laws actually hurt black applicants’ chances of getting called for an interview.

What could explain this counter-intuitive result?  The researchers who conducted the study have several theories.  One theory is that when employers have information about applicants’ races but not their criminal histories, employers base their decisions on the knowledge that, in general, black people are more likely to have criminal histories than white people.  While employers cannot require an applicant to reveal her race on a job application, they can infer race from other information such as the address and name of the applicant.  If an employer believes that an applicant is black and is unable to determine whether the applicant has a criminal history, it may act under the assumption—either consciously or unconsciously—that the black applicant has a criminal history.

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The Center for Work Life Law recently published a study on litigation trends in family responsibility discrimination cases which found a dramatic increase in such claims.  Family responsibility discrimination occurs when an employer discriminates against an employee because s/he has family caregiving responsibilities, such as caring for newborn children, elderly parents, or disabled spouses.

The study found that in the past ten years, while employment discrimination claims decreased from the prior ten years, family responsibility discrimination cases increased by 269%.  The study also found that employees win family responsibility discrimination cases at higher rates than other types of employment discrimination cases.  Nationwide, employees have won 67% of family responsibility discrimination cases that went to trial in the last ten years; and employees have won 72% of such cases that went to trial in Maine.

The researchers who conducted the study interestingly found that claims involving discrimination based on elder care responsibilities as well as claims filed by male workers have increased over the past ten years.  While these claims are still small in number compared to the more common family responsibility discrimination cases involving discrimination against pregnant workers and female employees with children, the increases are notable.  As the baby boom generation continues to age, more and more workers have to care for elderly parents and relatives.  Furthermore, it has become more socially expected and necessary for men to take bigger roles in family caregiving responsibilities; and this family caregiving role for men clashes with stereotypical notions that such caregiving is “women’s work.”

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The New York Attorney General recently filed a lawsuit against Domino’s Pizza, Inc. for wage theft.  This lawsuit is noteworthy for many reasons but perhaps the most noteworthy is that Domino’s argues that it does not employ the workers whose wages were allegedly stolen.  Instead, Domino’s claims that its franchise operators, who contract with Dominos, employ the workers.  The New York Attorney General maintains that Domino’s and the franchises jointly employed the workers and, thus, Domino’s is responsible for the wage theft.

One of the reasons corporations like Domino’s use a franchise business model is to limit the liability of the corporation.  This is perfectly legitimate if done correctly but the New York Attorney General argues that Domino’s exercised so much control over its franchises’ employees that Domino’s was also the employer of the workers and, as such, it is responsible for the alleged wage theft.  A statement from the New York Attorney General’s Office claims that their “investigation found, [Domino’s] played a role in the hiring, firing, and discipline of workers; pushed an anti-union position on franchisees; and closely monitored employee job performance through onsite and electronic reviews.”

“At some point, a company has to take responsibility for its actions and for its workers’ well-being. We’ve found rampant wage violations at Domino’s franchise stores. And, as our suit alleges, we’ve discovered that Domino’s headquarters was intensely involved in store operations, and even caused many of these violations,” said the New York Attorney General.  “Under these circumstances, New York law – as well as basic human decency – holds Domino’s responsible for the alleged mistreatment of the workers who make and deliver the company’s pizza. Domino’s can, and must, fix this problem.”

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The U.S. Department of Labor recently enacted new regulations that will increase the number of workers eligible to receive overtime pay when they work more than 40 hours in a week.  Under the new regulations, among other changes, employees that earn less than $47,476 per year must receive overtime pay—under the old regulations that threshold was $23,660.  Some opponents to this change are arguing that employers will decrease flexible work options in response to the overtime expansion.  Supporters of the change argue that there is no reason why employers would need to decrease flexible work options.  What is perhaps more interesting than this debate, however, is whether “flexible work options” are all their cracked up to be for many workers.

Opponents of the new regulations believe that employers will now need to keep better track of the amount of time that their previously overtime-exempt (now non-exempt) employees work.  This is because employers will have to pay more of their employees overtime pay if the employees work more than 40 hours in a week.  Thus, the argument goes, employers will insist on traditional time tracking practices like requiring workers to clock-in-and-out at a physical work location at the same times every day.

Proponents of the new regulations retort that current technologies and modern workplace policies permit employers to keep track of their employees’ hours without any need to reduce flexible work options.  For instance, some workers can telework remotely on laptops and clock-in-and-out at home.

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Yesterday, the U.S. First Circuit Court of Appeals in Boston breathed new life into a worker’s sexual harassment and retaliation case.  The worker, Xiaoyan Tang, represented herself before the trial court.  She claimed that the defendants, which included Citizens Bank and related entities, subjected her to unlawful sexual harassment and then fired her because she complained about it.  The trial court dismissed Ms. Tang’s claims.  After that, she retained counsel who successfully persuaded the First Circuit to reverse the trial court’s decision.

Ms. Tang claims that her supervisor at Citizens Bank, David Nackley, sexually harassed her.  The trial court held that no reasonable jury could determine that she experienced sexual harassment because, among other reasons, the alleged harassment was not sexual in nature.  The First Circuit found that the trial court committed one of the Cardinal sins in assessing the merits of a sexual harassment claim:  it failed to consider context.  For example, Mr. Nackley allegedly made an odd comment about Tang’s “ass” and his “ass” getting together.  The trial court found that this comment, while perhaps boorish and unprofessional, would have been just as offensive to a man as to a woman.  The First Circuit rejected this reasoning because the trial court ignored the context of the case which included Mr. Nackley making sexual innuendos and doing other things indicating that he was coming on to Ms. Tang sexually.

The trial court also failed to address Ms. Tang’s retaliation claim.  Ms. Tang claimed that Citizens Bank fired her in retaliation for a complaint that she made about Mr. Nackley’s discriminatory behavior.  Perhaps because she represented herself before the trial court, Ms. Tang’s court complaint did not contain a specifically enumerated retaliation claim and that may be why the trial court did not discern a retaliation claim from the court complaint.  However, the First Circuit held that Ms. Tang’s court complaint contained the allegation that Citizens Bank retaliated against her because of the discrimination complaint that she submitted to Citizens Bank.

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In Maine, like many other states, there is a growing concern about a “brain drain” caused by retiring state employees.  Roughly a quarter of IT workers working for Maine state government will be eligible for retirement in the next two years.  According to Jim Smith, Maine’s Chief Information Officer, “about 3,000 years of experience is going to be walking out the door.  It’s going to be transformational. We’re going to need to do something radical to address this change.”

The State of Maine has been trying to stem the tide of retirements while at the same time recruiting new IT workers to take the places of retiring workers.  One thing they have done to stem the tide of retirements is to permit part-time work so that older workers can reduce their hours instead of just retiring.  To attract new employees, the state has made applying for positions easier with a new app.  It has also used an intern-mentor program to partner potential hires with veteran employees.

Maine’s efforts to retain older workers is particularly interesting given what we have seen in the private IT sector.  As we have reported in the past, there is a perception that private IT employers have an ageist bias toward younger workers.  For example, some look for so-called “digital natives” when they hire.  In the private IT sector, turnover is relatively high.  Given this reality, private companies are likely less concerned with retaining experience than with attracting new talent.

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The U.S. Department of Labor’s Wage and Hour Division (DOL WHD) recently updated its Employer’s Guide to the Family and Medical Leave Act (FMLA).  DOL WHD produced this Guide “in an effort to increase public awareness of the FMLA and of the various [DOL] resources and services available to the public.”

The Guide is informative for both employers and employees who want to understand their obligations and rights under the FMLA.  The FMLA provides unpaid leave to eligible employees who work for employers covered by the FMLA when the employee experience qualifying events such as the birth of a new child or a serious health condition.

The Guide contains a helpful graphic, called a Roadmap, which puts the various issues that employers should consider in an order that will allow them to determine their obligations to their employees under the FMLA.  The Roadmap begins with determining whether the FMLA covers the employer, continues to what a covered employer must do to educate employees on their FMLA rights, and then moves on to what covered employers should do when they have an employee who may be eligible for FMLA due to a qualifying reason.

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Last week, a settlement was announced in the class action lawsuit against Uber covering its drivers in California and Massachusetts.  The lawsuit centered around the issue of whether the law required Uber to classify its drivers as employees instead of independent contractors.  Uber and the law firm representing the drivers have issued statements describing the terms of the settlement.

Due to the settlement, the legal classification of Uber drivers is still unresolved.  Indeed, there is still a case wending its way through the California court system on this issue.  Nevertheless, the settlement, if the court approves it, will produce some significant changes at Uber.

The issue of whether a worker is an independent contractor or employee oftentimes boils down to how much control the company has over the worker.  Some of the reforms that Uber has agreed to in the settlement seem to push Uber drivers closer to the definition of independent contractors, including an agreement that Uber will no longer deactivate drivers because they choose not to accept riders.  This will give Uber drivers more control over rides they accept.  They will be able to decide, for instance, to only pick up riders who want to go certain places.  That way, if a driver wants to start making their way home at the end of the day, they won’t have to accept a rider that wants to go in the opposite direction of the driver’s home.

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