Maine Employment Lawyer Blog

Published on: February 18, 2016

MHRC issues new guidance on rights of transgender people

Last month the Maine Human Rights Commission (MHRC) issued new guidance for schools regarding the rights of transgender students. The MHRC had hoped to issue formal regulations but Governor LePage blocked that effort. The new MHRC guidance explains how schools are supposed to approach the issues of transgender students’ restroom and locker room access as well as participation in athletics. The MHRC issued more limited guidance in 2013 for employers who employ transgender employees. This new guidance for schools may also help clarify the MHRC’s position in the employment context.

(The MHRC’s new guidance for schools defines “transgender” as “an umbrella term for people whose gender identity and/or expression is different from cultural expectations based on the sex/gender they were assigned at birth.”)

The MHRC issued its 2013 guidance for employers in response to a question about whether an employer could require a transgender employee to use the restroom that matches the sex that they were assigned at birth. The MHRC’s guidance stated that employers must reasonably accommodate an employee’s gender identity. Thus, if a transgender woman (a person who has a female gender identity but was assigned the male sex at birth) requests to use the women’s restroom, an employer would probably have to permit her to use the women’s restroom because she has a female gender identity. This 2013 guidance left unanswered, however, how an employer is supposed to know what an employee’s gender identity is. The new MHRC guidance helps to answer that question.

Continue reading →

Published on: February 10, 2016

Wal-Mart stung with $31 million jury verdict for firing pharmacist from NH store

By Maine Employee Rights Group

Last month a federal jury in New Hampshire found that Wal-Mart discriminated against a pharmacist because of her sex and because she blew the whistle on unsafe conditions at the store. The pharmacist, Maureen McPadden, worked at the Seabrook Wal-Mart store for 13 years before Wal-Mart fired her in 2012. Wal-Mart fired her after she complained about violations of pharmacy regulations and negligent training and supervision of pharmacy staff. Wal-Mart claimed that it fired her because she lost a key but the jury, obviously, believed that was just an excuse to cover up discrimination. Indeed, there was evidence that a male pharmacist lost a key and Wal-Mart did not fire him.

“I honestly feel the jurors listened intently,” said McPadden. “I really feel they wanted to send a message that the little guy has a voice, that Wal-Mart did something wrong.”

“The facts most certainly support the decision,” one of McPadden’s lawyers said. “A jury of eight conscientious New Hampshire residents heard compelling evidence for five days and determined Walmart willfully and with reckless disregard acted against Maureen McPadden’s New Hampshire rights to be protected from gender discrimination. (Walmart) fired her on a pretext that she had lost her key. But 12 months later a (male) pharmacist from the Plaistow (N.H.) Walmart lost his key and he wasn’t fired.”

Continue reading →

Published on: February 2, 2016

NH federal court holds that jury could reasonably find that employer violated FMLA

By Maine Employee Rights Group

Last week a federal court in New Hampshire held that a jury could reasonably find that First Data Merchant Services (“First Data”) violated the Family and Medical Leave Act (“FMLA”) when it fired Jessica Fountain, a former First Data account executive. Ms. Fountain took FMLA leave in 2009 because of her own serious medical condition and again in 2011 and 2012 to care for her son when he suffered from a serious medical condition. In January 2013, Ms. Fountain requested FMLA leave again and shortly afterwards First Data fired her supposedly for poor performance.

Ms. Fountain argued to the court that First Data violated the FMLA when it fired her, in part, because it did not adjust her sales quotas in 2012 to account for the fact that she missed work for FMLA leave. The court found this argument persuasive because there was evidence that Ms. Fountain’s supervisor used unadjusted 2012 sales quotas to justify his decision to terminate her employment.

First Data’s treatment of Ms. Fountain is not uncommon. Sometimes employers think that if they treat all employees the same, they are not going to violate the law. However, laws like the FMLA entitle employees to special treatment because of certain public policy considerations. The FMLA protects the jobs of FMLA-eligible employees who, for instance, need to take leave to care for their children when they have serious medical conditions because Congress did not want employees to have to choose between keeping their jobs and caring for their children. When an employee takes FMLA leave, she obviously cannot work and her employer cannot hold that against her. This means that when an employer evaluates an employee’s productivity, it cannot hold her to the same productivity standards as other employees who did not take FMLA leave.

Continue reading →

Published on: January 29, 2016

When employers jointly employ you, the rules for FMLA and overtime pay can be tricky

By Maine Employee Rights Group

Many employers in Maine and around the country jointly employ workers. For example, the relationships between staffing companies and their clients are often designed so that the staffing company and the client jointly employ the workers who perform work for the client. In these situations, there are special rules for determining how jointly employed workers become eligible for leave under the federal Family Medical Leave Act (FMLA), and the companion Maine family medical leave law, as well as for overtime pay under the federal Fair Labor Standards Act (FLSA) and the companion Maine overtime law.

The U.S. Department of Labor recently published new FMLA guidance to help employers and workers determine what their obligations and rights are when there is a joint employment relationship. For example, employers with fewer than 50 employees normally do not have to provide FMLA leave to their employees. However, if two employers jointly employ workers, both employers must count the jointly employed workers for purposes of determining whether they have 50 employees. If these jointly employed workers push the employers over the 50 employee threshold, they will have to provide FMLA leave to their employees when the employees become eligible for FMLA leave.

Another scenario where joint employment sometimes occurs is when a worker performs work for two companies that are owned and managed by the same people. For example, a nurse could work for two nursing homes in the same week putting in 25 hours at each nursing home. If those nursing homes jointly employ the nurse because, for example, the same people own and manage the nursing homes, that nurse is entitled to overtime pay because she worked 50 hours that week. The U.S. Department of Labor also recently issued guidance on the FLSA to help employers and workers determine whether joint employment exists for purposes of, for instance, determining eligibility for overtime pay.

Continue reading →

Published on: January 20, 2016

Study shows that employers discriminate against female applicants who are lesbian, bisexual, or transgender

By Maine Employee Rights Group

In a new study, a researcher has found that employers tend to discriminate against female applicants who are lesbian, bisexual, or transgender; applicants who the researcher categorized as “queer.” To conduct the study, the researcher created fictitious resumes that were identical in every respect except some indicated that the applicant served in a leadership position in a LGBT student organization. The leadership role in such organizations was meant to imply that the applicant was “queer.” The researcher sent the resumes to employers seeking administrative, clerical, and secretarial positions in Virginia, Tennessee, the District of Columbia, and New York. She found that employers responded more significantly favorably to the fictitious resumes of women who did not serve in leadership positions with LGBT student organizations than the women who did, i.e., that the employers discriminated against the “queer” applicants.

The researcher’s decision to test hiring for administrative, clerical, and secretarial positions is interesting. Employers looking to fill these positions typically do not discriminate against female applicants because women have traditionally held these positions at greater rates than men. So, sex discrimination was less likely to play a role in the employers’ decisionmaking. Furthermore, stereotypical views of lesbians and bisexual women often include the belief that they are more “masculine” than straight women. Thus, the fictitious “queer” applicants might have been favored over non-queer applicants if the researcher had used a field of work more traditionally dominated by men in her study, such as construction.

This study is another piece of evidence which shows that if you are a “queer” woman, you are more likely to face discrimination when you apply for jobs typically held by women. If you believe that you have been discriminated against because of your sexual orientation or gender identity, that is illegal and you should contact an experienced employment lawyer, like the lawyers at the Maine Employee Rights Group, to learn more about your rights.

Published on: January 15, 2016

First Circuit corrects dangerous court-created rule in whistleblower cases

By Maine Employee Rights Group

This week in Harrison v. Granite Bay Care, Inc., the U.S. First Circuit Court of Appeals corrected a dangerous court-created rule that it had previously established in another whistleblower case. The First Circuit created this rule–the so-called “job duties exception” to whistleblower protection–in Winslow v. Aroostook County, a case, like Harrison, brought under Maine’s Whistleblower Protection Act (MWPA). As we previously reported, in Winslow the First Circuit held that the employer in that case could lawfully retaliate against the plaintiff for reporting unlawful activity because her job required her to report that unlawful activity. In Harrison, as we also previously reported, the trial court used the “job duties exception” in order to hold that Granite Bay could legally retaliate against Ms. Harrison because she reported to the Maine Department of Health and Human Services (DHHS) that Granite Bay neglected and/or abused its clients.

The First Circuit reversed the trial court’s decision in Harrison and held that there is no “job duties exception” to the MWPA. It explained that the trial court had misinterpreted the Winslow case and that the Winslow case had not, in fact, created a “job duties exception.” Regardless of whether the First Circuit had created a “job duties exception” in Winslow, the new rule under Harrison now focuses on the employee’s motivation when she reports unlawful or unsafe activity–not just on whether the employee’s job duties required her to report the activity. If the employee was motivated to report unlawful or unsafe activity merely because her “everyday job duties” required her to do so, she is not protected under the MWPA. However, if she reported the unlawful or unsafe activity in order to “shed light on and in opposition to an employer’s potential illegal acts,” her employer may not retaliate against her for blowing the whistle on that unlawful or unsafe activity.

The First Circuit seemed to suggest that a whistleblower who reports unlawful or unsafe activity to a government agency is more likely to be protected under the MWPA because that report to a government agency, instead of just to a manager within her organization, shows she intended to try to stop the unlawful or unsafe activity. However, the MWPA, in some instances, requires whistleblowers to first inform their employers of unlawful or unsafe activity before reporting that activity to a government agency. Thus, you still may not be protected from retaliation if you completely bypass your employer and go straight to a government agency to report your employer’s unlawful or unsafe activities.

Continue reading →

Published on: January 8, 2016

History of labor activism at Portland Co. provides lesson for modern day workers

By Maine Employee Rights Group

The Portland Press Herald ran an article this week about the history of labor activism at the Portland Co. during the nineteenth century. The Portland Co. was renowned for building locomotives and there is an ongoing debate over whether to preserve its former site as a historic landmark.

The article in the Press Herald discussed the efforts of workers at Portland Co. to force the company to institute a 10-hour workday, instead of the 12-to-16 hour workdays common during that time. These workers organized to press management for a 10-hour workday and went on strike as a result. They also urged the company to abolish the “store order” form of payment, which was a system where the company paid workers in credit at the company store. This system lessened the pay of workers and created a sense of bondage to the company. The workers’ efforts did not bear fruit right away but eventually the Portland Co. instituted a 10-hour workday and did away with the “store order” system.

Today, organized labor is on the decline. Only a small percentage of the American workforce is unionized. In 1983, the union membership rate in the United States was over 20% but in 2014 the union membership rate was only a little over 11%, and it was just 6.6% for private-sector workers. At the same time that organized labor has declined, many workers have come to believe that employers should offer more benefits such as paid family leave. Workers’ wages are also stagnating. Many employers use tactics such as misclassifying workers as exempt from overtime or as “independent contractors” in order to depress wages. Other employers pay merely the federal minimum wage which has gradually fallen, when adjusted for inflation, over the past 40 years. If more workers today organized into unions, like the workers at Portland Co., could they get employers to provide additional benefits and higher wages? Unless more workers come together to form unions, we may never know.

Published on: December 30, 2015

Watch out for FMLA interference this time of year

By Maine Employee Rights Group

It is a common perception among management-side employment lawyers that employees tend to abuse their rights to leave under the Family and Medical Leave Act (FMLA) around the holidays. Some examples of management-side employment lawyers’ advice to businesses about this can be found here, here, and here. So, if you need to use FMLA leave during the holidays because you have a serious medical condition, be aware that your employer may subject you to heightened scrutiny. Heightened scrutiny can be legitimate but sometimes it can cross the line into interfering with your FMLA rights.

To protect your job, you should be careful to follow all of your employer’s policies related to FMLA leave. For example, employers may institute policies that require you to periodically report on your status and intent to return to work. Of course, if you are medically unable to strictly comply with these policies, an employer probably cannot legally hold that against you. But to avoid potential issues with your employment, you should comply with your employer’s policies if at all possible.

It is also a good idea to document your compliance with your employer’s FMLA policies. If an employer suspects that you are abusing FMLA leave, it will be tempted to say that you did not comply with its policies in order to discipline you. So, if possible, make your FMLA requests in writing; provide requested updates in writing; and communicate your intent to return to work in writing. Similarly, if you believe that your employer is interfering with your leave, such as by pressuring you to return to work sooner than your doctor believes you should, document this interference in emails or other written communications with your employer.

Continue reading →

Published on: December 23, 2015

Mass. court holds Catholic school liable for sexual orientation discrimination

By Maine Employee Rights Group

A Massachusetts state court has held that a Catholic school violated the state’s law against sexual orientation discrimination when it fired its food services director because he was a gay man with a same-sex spouse. We previously reported on this case when it was filed. The Catholic school, Fontbonne Academy, fired Matthew Barrett when it learned that he was a gay man with a male spouse. Like Maine, Massachusetts has an employment discrimination law that expressly prohibits sexual orientation discrimination. Fontbonne, however, argued, among other things, that the First Amendment entitled it to discriminate against Mr. Barrett for religious reasons.

The court rejected Fontbonne’s arguments for a variety of reasons. As we previously reported, under the First Amendment, religious institutions can deny employment to people who would serve as “ministers” in the institution. The court found that a food services director at Fontbonne did not qualify as a minister. The duties of a food services director at Fontbonne does not include being an administrator or teacher of religious matters. The court also held that Barrett’s status as a gay man would not significantly burden Fontbonne’s ability to provide an education to students “rooted in gospel values and the teachings of the Catholic Church.” Barrett was not fired for advocating for same-sex marriage and his job would not have put him in a position to teach students about “gospel values” and the “teachings of the Catholic Church.”

Gay & Lesbian Advocates & Defenders (GLAD) filed this lawsuit against Fontbonne Academy on behalf of Mr. Barrett. “Religiously-affiliated organizations do not get a free pass to discriminate against gay and lesbian people,” said Bennett Klein, GLAD Senior Attorney. “When Fontbonne fired Matt from a job that has nothing to do with religion, and simply because he is married, they came down on the wrong side of the law.”

Published on: December 18, 2015

First Circuit rules in favor of former sky cap for a second time in long running retaliation case

By Maine Employee Rights Group

This week, the U.S. First Circuit Court of Appeals affirmed a jury verdict in a long running retaliation case involving the termination of a sky cap who worked at Logan Airport. The sky cap at issue in the case, Joseph Travers, was the named plaintiff in a class action lawsuit against Flight Services & Systems, Inc. (“FSS”). That class action involved allegations that FSS did not pay sky caps all of the wages they were owed under federal and Massachusetts law. Travers alleged that FSS fired him in retaliation for his role in bringing the class action against FSS. This type of retaliation is unlawful under federal and Massachusetts law. Based on the evidence presented at trial, it appeared as though FSS fired Travers to send a message to other sky caps that if they joined the class action they, too, might get fired in retaliation.

We previously reported on this case because this is the second time the case has come before the First Circuit. The first time the case came before the First Circuit, the trial court had ruled in favor of FSS and dismissed Travers’ claim because the trial court did not believe a reasonable jury could find in favor of Travers. The First Circuit reversed the trial court’s decision and, as a result, Travers was entitled to a jury trial. After the trial, the jury ruled in favor of Travers and awarded him $90,000 in back pay, $450,000 in front pay, and $400,000 in compensatory damages for emotional distress—a total of $940,000.

Under Massachusetts law, Travers was entitled to three times his back pay and, thus, the trial court trebled the back pay award to $270,000. However, the trial court decided to reduce the compensatory damages award to $50,000 and to eliminate the front pay award. Thus, after the trial court reduced the jury’s verdict, the final damages verdict was $320,000. In addition to this $320,000, the trial court awarded Travers $176,185 to pay his attorneys’ fees.

Continue reading →