Maine Employment Lawyer Blog

Published on: December 11, 2015

First Circuit holds that jury could reasonably find that Dunkin Donuts store managers are entitled to overtime pay

This week the First Circuit Court of Appeals, whose decisions govern Maine and other New England states, held that a reasonable jury could determine that two Dunkin Donuts store managers should have received overtime pay. The Fair Labor Standards Act (FLSA), a federal law, entitles employees to overtime pay equal to time-and-a-half of their hourly rate of pay unless the employees fit into one or more exemptions in the law. One of these exemptions is for “executive” employees and the stores’ attorneys argued that the store managers fit under this exemption. The First Circuit rejected this argument and held that a jury would have to decide whether the store managers were exempt “executive” employees.

To avoid paying overtime under the “executive” exemption, an employer must prove the following: (1) the employee’s salary is at least $455 per week, (2) the employee’s “primary duty” is management, (3) the employee “customarily and regularly directs the work of two or more other employees,” and (4) the employee “has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.” The First Circuit’s decision in this case turned on the issue of whether the store managers’ “primary duty” was management.

The First Circuit held that a jury could reasonably find that the store managers’ primary duties were not management. The First Circuit noted evidence that the store managers’ spent the bulk of their time performing non-managerial work like serving customers and cleaning. The court held that a reasonable jury could find that the performance of this non-managerial work was equally important to the success of the store as the performance of managerial work.

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Published on: December 1, 2015

Study: older women more likely to experience age discrimination than older men

By Maine Employee Rights Group

A recent study published by the National Bureau for Economic Research finds that employers discriminate against older women at higher rates than older men. The researchers sent out about 40,000 fake resumes to employers and tracked how the employers responded to the resumes. They found that women aged 64-66 got calls from employers 12% of the time and women aged 29-31 got calls from employers 19% of the time, a statistically significant difference. Interestingly, with the exception of janitorial jobs, older men got calls from employers at approximately the same rate as younger men.

This fake resume study method is the same method that researchers have used in other studies. The method is considered more reliable than observing how employers treat real people because the researchers can ensure that the fake applicants have the same qualifications which is difficult to do when you study treatment of real people who each have their own unique qualifications.

After finding these gender disparities in age discrimination, the researchers pondered what drove the gender disparities. One of the researchers thought the gender disparity might be due to societal views on the attractiveness of older men as opposed to older women. “There is some evidence that people’s rating of attractiveness diminishes more quickly for older women than older men,” said the researcher.

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Published on: November 24, 2015

Study finds rampant discrimination against applicants that disclose disabilities

By Maine Employee Rights Group

A new study shows what most lawyers who represent disabled employees already knew—discrimination against job applicants who disclose that they have disabilities is rampant. The researchers who conducted the study used the accounting industry and the disabilities of Asperger’s syndrome and spinal cord injuries in their experiment. They sent fictitious applications in response to over 6,000 advertised accounting positions. The applications for each position were the same except for cover letters that said some of the applicants had no disability, some had Asperger’s syndrome, and some had spinal cord injuries. The researchers found that employers expressed interest in the applicants with disabilities 26% less frequently than applicants without disabilities.

“I don’t think we were astounded by the fact that there were fewer expressions of interest” for people with disabilities, said one member of the research team. “But I don’t think we were expecting it to be as large.”

The researchers found that businesses with fewer than 15 employees were even less likely than larger employers to express interest in disabled applicants. This may be due to the fact that the Americans with Disabilities Act (ADA), the federal law that prohibits discrimination against disabled applicants, only applies to employers with 15 or more employees. Thus, smaller employers have less fear of disability discrimination lawsuits. However, it is also possible that the difference between large and small employers is due to smaller employers’ concerns about the potential costs of providing reasonable accommodations to disabled employees, even if the ADA does not require them to do so. This may have motivated some of the smaller employers in places like Maine, which has a state disability discrimination law (the Maine Human Rights Act (MHRA)) that covers all employers regardless of their size. Whatever the motivation for these small employers, they are acting on the stereotypical assumption that accommodating a worker with a disability will be more of a drain on their business than a benefit. These stereotypical assumptions often overstate the cost of reasonable accommodations and understate the positive contributions that disabled workers can provide to a business.

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Published on: November 19, 2015

Mass. federal court rules against YMCA in racial harassment case

By Maine Employee Rights Group

This week a federal court in Massachusetts held that a reasonable jury could determine that the Old Colony YMCA subjected an African American employee to racial harassment that created a hostile work environment. The African American employee, Jessika Boone, worked for the YMCA as a caseworker in the YouthBuild program. The YouthBuild program is a community-based educational and vocational training program that serves disadvantaged young people from the Brockton area, over half of whom are African American.

According to Boone, during her time working in the YouthBuild program, a co-worker and a supervisor made racially charged comments about African American people. For example, one employee said that he did “not know why people get so mad about slavery.” Another employee allegedly referred to an African American employee of Egyptian descent as a “dune coon.” A supervisor asked an employee during a meeting if he had seen a pornographic movie called “Big Black Cocks.” Boone’s supervisor also allegedly acted hostilely toward her in ways—such as calling her a “bitch” and “fucking idiot” and giving her the middle finger—that he did not do to white employees. Based on the evidence that Boone presented, the court held that “a reasonable jury could find that she was subjected to a hostile work environment based on her race.”

Many people assume that this type of overt racism does not occur in the workplace any more but that is a flawed assumption. People still utter racial epithets and racially insensitive language in the workplace. The Maine Employee Rights Group has experience with these types of cases representing workers with stories similar to Ms. Boone’s. If you work in Maine and have experienced this type of racial harassment, call us to learn more about your rights.

Published on: November 13, 2015

Mass. federal court: statistical evidence of age discrimination could permit reasonable jury to find that company laid off employee because of his age

By Maine Employee Rights Group

This week a federal court in Massachusetts ruled against Areva, Inc. in an age discrimination case. The court held that a reasonable jury could determine that Areva laid off Farrokh Seifaee because of his age. Seifaee was 61 years old at the time of his termination in October 2013.

Seifaee worked for Areva as an engineer and had worked for the company, and its corporate predecessors, for 25 years at the time of his termination. Areva terminated Seifaee as part of a reduction in force (RIF) that it instituted to save money because of the company’s financial problems. To decide who Areva wanted to lay off, the company rated employees based on criteria such as current and past evaluations of each employee and the employee’s critical or unique skills. Based on these criteria, Areva ranked Seifaee 130th on the list of 136 employees considered for layoff. Areva laid off 14 employees, including Seifaee. Of the 14 employees laid off, all were older than 55 and 12 were older that 60.

Seifaee’s lawyer presented the opinion of an expert who performed a statistical analysis on Areva’s layoff. The expert found that the statistical disparity in the RIF “clearly supports a claim of age bias.” Seifaee’s lawyer also presented, among other things, evidence that Areva retained employees younger than him who had performance problems and less unique skills and experience than him.

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Published on: November 6, 2015

NY Times examines the rise of forced arbitration and how it erodes constitutional right to jury trial

By Maine Employee Rights Group

The New York Times recently ran a three part series of articles “examining how clauses buried in tens of millions of contracts have deprived Americans of one of their most fundamental constitutional rights: their day in court.” Corporations deprive Americans of this constitutional right by putting arbitration provisions in contracts, employment applications, and other agreements that consumers and workers agree to often because they have no real choice or do not understand what rights they are signing away. When consumers and workers submit to these arbitration agreements and the corporations they purchase things from or who they work for violate their rights, they have to bring their claims before an arbitrator, often a lawyer who represents corporations, instead of in court.

We have reported on this practice in the past but the New York Times articles provide numerous examples of the unfairness of forced arbitration. One example involved the sex discrimination case of Dr. Deborah Pierce against the medical group that fired her. One significant concern about arbitration is that arbitrators rely on employers for repeat business and, thus, they have an incentive to rule in favor of employers. Dr. Pierce noticed that when she arrived to an arbitration hearing in her case, the head of the medical group she was suing was having a friendly cup of coffee with the arbitrator. During the arbitration proceedings, among other things, the arbitrator fined the medical group $1,000 for destroying evidence but then billed Dr. Pierce $2,000 for the time it took him to look into the destruction of evidence. The arbitrator ultimately ruled against Dr. Pierce and his arbitration decision tracked verbatim some of the language in the medical group’s briefing.

The New York Times articles also explain how corporations have used arbitration to remove the rights of workers and consumers to bring class actions. Proponents of arbitration argue that individuals can bring their individual claims to arbitration and that class actions are not necessary. This argument does not hold up to scrutiny particularly when you consider it in the context of consumer cases. Many consumer cases involve corporations imposing unlawful fees which, for one individual, are relatively small. In those instances, without the ability to file a class action that bundles many individual claims into one lawsuit, the corporation will basically escape liability because it is not worth it for any one individual to file an arbitration claim for such a little sum of money. As one federal judge put it, “only a lunatic or a fanatic sues for $30.”

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Published on: October 29, 2015

Maine Employee Rights Group wins case against Rumford Hospital

By Maine Employee Rights Group

Today a jury in Portland’s federal court returned a verdict against Rumford Hospital and in favor of the Maine Employee Rights Group’s client Catherine Prescott. Attorneys Peter Thompson and Chad Hansen represented Ms. Prescott at trial.

We previously reported on this case when the court denied Rumford Hospital’s motion for summary judgment. Ms. Prescott, formerly Ms. LaFlamme, worked as a nurse at Rumford Hospital. The case centered around Ms. Prescott’s need for medical leave as a reasonable accommodation for her disability, a herniated disc in her back that required surgery.

The Americans with Disabilities Act (ADA) and the Maine Human Rights Act (MHRA) require employers to provide reasonable accommodations to employees with disabilities. One type of reasonable accommodation is medical leave. In this case, Rumford Hospital let Ms. Prescott take an extended medical leave of over a year due to her herniated disc and related surgery but it fired her before she was able to return to work. When she was able to return to work, Rumford Hospital also refused to rehire her. The jury determined that Rumford Hospital failed to reasonably accommodate Ms. Prescott’s disability, discriminated against her because of her disability, and unlawfully retaliated against her. The jury awarded Ms. Prescott $35,685 for back pay and compensatory damages.

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Published on: October 23, 2015

Jury awards City of Boston employee $10M+ in race discrimination and retaliation case

By Maine Employee Rights Group

This week a jury in Suffolk County Superior Court found that the City of Boston discriminated against city employee Chantal Charles because of her race. Charles, a black woman of Haitian descent, worked as a senior administrative assistant in the City’s Treasury Department. She alleged that the City and the City’s First Assistant Collector-Treasurer, Vivian Leo, discriminated against her when they denied her promotions, pay raises, overtime pay, and compensation for performing the duties of a supervisor. Charles also alleged that the City retaliated against her after she filed a complaint with the Massachusetts Commission Against Discrimination.

In a report on the City’s workforce issued earlier this year, analysts reportedly found that the Treasury Department is one of Boston’s least diverse departments with white workers constituting over two-thirds of the department. This report appears to have supported the arguments that Charles’ lawyers made at trial. They argued that Charles was the victim of a pattern of discriminatory treatment in the Treasury Department.

The jury awarded Charles $390,000 in economic damages, $500,000 for emotional distress, and $10 million in punitive damages. In a press release, Charles’ lawyers said that the “scope of the punitive damages award shows that the jury found the City and Ms. Leo’s conduct was outrageous and egregious.”

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Published on: October 15, 2015

Conn. Supreme Court expands employees’ free speech rights

By Maine Employee Rights Group

This week the Connecticut Supreme Court issued a decision in Trusz v. UBS Realty Investors which expanded employees’ free speech rights. Mr. Trusz worked for UBS as a managing director and the head of its valuation unit. In this role, Mr. Trusz managed UBS’s process for deciding the value of its real estate investment funds. In connection with his job, Mr. Trusz informed UBS that it had made errors in its valuation of certain properties that UBS held in some of its investment funds. He told UBS, among other things, that he thought UBS had an obligation to inform investors of the errors and to return excessive fees to investors that UBS had collected because of the errors. When UBS refused to take the steps Mr. Trusz said were necessary, Mr. Trusz told UBS that he thought it was violating legal and ethical obligations to investors. UBS subsequently fired Mr. Trusz and he sued claiming, among other things, that UBS fired him in retaliation for the concerns he raised about UBS’s handling of the valuation errors.

Mr. Trusz’s case required the Connecticut Supreme Court to decide whether it would follow the decision of the U.S. Supreme Court in Garcetti v. Ceballos (2006). In Garcetti, the Supreme Court held that an employer could legally retaliate against an employee who exercised her free speech rights if the employee engaged in free speech as part of her official job duties.

Garcetti only applies to public employees and employers, like public school teachers and police officers, because the First Amendment only restricts the activities of governments. However, in Connecticut, there is a law that prohibits both public and private employers from retaliating against an employee because he exercised his free speech rights under the U.S. or Connecticut Constitutions. This is why constitutional issues came into play in Mr. Trusz’s case even though it involved a private employer.

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Published on: October 9, 2015

California Fair Pay Act recently enacted to address male/female pay differences

By Maine Employee Rights Group

This week California enacted the California Fair Pay Act. The California Fair Pay Act will enhance existing laws designed to lessen the pay gap between men and women. “Sixty-six years after passage of the California Equal Pay Act, many women still earn less money than men doing the same or similar work,” said California Governor Jerry Brown. “This bill is another step toward closing the persistent wage gap between men and women.”

Nationally, women earn, on average, $0.78 for every $1.00 that men earn. That difference is slightly better in California where, on average, women earn $0.84 for every $1.00 that men earn. This pay gap has existed for decades across the nation. The California Fair Pay Act has some provisions that may help to decrease the pay gap in California because the law addresses some of the bigger problems with the existing federal Equal Pay Act. As discussed below, Maine’s equal pay law is also better than the federal Equal Pay Act but, in some respects, it is not as strong as the new California Fair Pay Act.

The same “establishment”

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